[Cites 3, Cited by 0]
Gujarat High Court
The Moti Chichno Milk Producers Co Op ... vs Ramabhai Samalbhai Patel on 3 December, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 111 of 2005
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THE MOTI CHICHNO MILK PRODUCERS CO OP MANDALI LTD
Versus
RAMABHAI SAMALBHAI PATEL
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Appearance:
MR SK PATEL(654) for the Appellant(s) No. 1
MR PS PATEL(643) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 03/12/2025
ORAL ORDER
1. By way of this second appeal u/s 100 of the Code of Civil
Procedure, 1908, the appellant challenges judgment and
order dated 18.2.2000 passed in Regular Civil Suit No.6 of
1996 by the learned 3 rd Joint Civil Judge (JD), Modasa
confirmed by the learned Extra Asst. Judge, Sabarkantha @
Modasa vide order dated 26.7.2004 in Civil Appeal No.17 of
2000.
2. The plaintiff filed the suit for recovery of Rs.28,600/-
from the defendant with 18% interest per annum from the
date of filing of the suit till realization, inter alia, on the
ground that the plaintiff is an agriculturist and the defendant
is a registered cooperative society. The Gujarat State Seeds
Corporation (in short "the Corporation") is providing land to
the agriculturist to grow certified millet and grain seeds
under the government program. It is further the case of the
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plaintiff that he has been given one parcel of the land to grow
certified seeds of millet, MH179 in the summer of 1993 with
the condition that whatever the seeds grow therein is to be
deposited in the Corporation at the rate of Rs.10.50 per KG.
The deposition of the millet seeds were to be made through
the defendant, as the defendant was acting as a commission
agent of the Corporation. The defendant after taking its
commission, was obliged to pay the amount of certified seeds
deposited with the Corporation. The plaintiff further averred
that after growing the certified seeds of millet MH 179, he has
deposited in total 1525 kg seeds to the Corporation under the
instructions of the defendant. It is further averred that the
defendant has obtained the amount from the Corporation, but
did not pay the same, which is due to the plaintiff. In the
aforesaid proceedings, the plaintiff prayed for the aforesaid
relief by filing the civil suit.
2.1 The defendant, having been served, appeared and
denied the suit of the plaintiff in toto and claimed that the
Corporation since is not joined as a party defendant, the suit
of the plaintiff is suffering from principle of non-joinder of
necessary party. The defendant further contended that it is
acting as a commission agent of the Corporation, and
therefore in absence of the principal party, the suit against
the defendant is not maintainable. The defendant has not
purchased any millet seeds from the plaintiff and therefore
the defendant is not liable to pay any amount to the plaintiff.
2.2 The learned trial court fixed the issue and permitted
both the parties to lead evidence. Ultimately, the learned trial
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court decreed the suit of the plaintiff and directed the
defendant of the suit to pay Rs.28,600/- to the plaintiff from
the date of the suit till realisation with 18% interest per
annum.
2.3 Being aggrieved by the said judgment and decree, the
defendant of the suit preferred Regular Civil Appeal No.12 of
2000 before the learned Extra Assistant Judge, Sabarkatha
came at Modasa. The said appeal was decided against the
defendant by judgment and decree dated 26th July 2004.
2.4 Being further aggrieved, the appellant - original
defendant, preferred present second appeal under section 100
of the Code on various grounds stated in the appeal memo.
3. Vide order dated 17th October 2005, the Coordinate
Bench of this Court has framed the following substantial
question of law:-
"Following substantial questions of law arise for
determination by this Court:-
(1) Whether the suit is maintainable against the agent
without joining the principal and whether the agent
can be sued without joining the principal?
(2) Whether the privity of contract can be inferred
without there being any specific or any other contract
between the parties?
(3) Can a contract be inferred without following a
prescribed procedure by the party who is claiming
relief on the basis of such contract?
Appeal is admitted."
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4. For the sake of convenience and brevity, the parties are
referred to as per their original status before the learned trial
Court.
5. Learned advocate, Mr. SK Patel appearing for the
defendant referring to the substantial questions of law framed
by the coordinate bench of this court, and relying upon the
judgment, in case of Vivek Automobiles Ltd. versus Indian
INC, 2005 Lawsuit (SC) 1758, as well as in case of Virender
Khullar Vs. American, Consolidation Service Limited and
others, 2016 Lawsuit (SC) 788 as well as referring to section
230 of the Contract Act, would submit that the defendant was
acting as commission agent of the Corporation. He would
further submit that the Plaintiff has deposited the millet seeds
to the Corporation, and therefore liability of paying the
amount, if any, is arisen against the Corporation and not
against the defendant, who was merely acting as commission
agent, to facilitate the program of growing of certified seeds.
He would further submit that the learned trial court failed to
appreciate this aspect. The learned appellate court in its
cursory judgment again failed to notice this legal aspect. He
would further submit that there was no privity of contract
between the plaintiff and the defendant to grow certified
millet seeds and to purchase the same from the poor
agriculturist, therefore, in absence of any privity of contract,
the learned courts below have committed serious error in
inferring that it was the duty of the defendant to pay amount
of the millet seeds, which was deposited by the plaintiff before
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the Corporation. Learned advocate Mr. SK Patel took this
court through the record and proceedings of the suit, as well
as the judgment delivered by the learned courts below, and
submitted that both the courts below have committed serious
error in saddling the liability upon the defendant to pay the
amount of millet seeds deposited by the plaintiff. He would
further submit that the plaintiff has also filed complaint before
the Consumer Forum, Sabarkantha vide complaint no. 287 of
1993, and in the said complaint, the plaintiff has joined the
Director of the Corporation as a party defendant. However,
the present suit is filed on the similar line, but without joining
the Corporation, and therefore, it is clearly proved that the
suit is suffered from principles of non-gender of necessary
party. He would reiterate that in absence of privity of
contract between the plaintiff and the defendant, the plaintiff
cannot claim any amount from the defendant being due from
the Corporation.
5.1 Upon above submissions, learned advocate Mr. SK Patel
appearing for the defendant prays to allow this appeal and to
quash and set aside the concurrent findings arrived at by the
learned courts below.
6. As against the aforesaid submission, learned advocate
Mr. P.S. Patel appearing for the plaintiff would submit that
the learned courts below have comprehensively discussed that
how the defendant became liable to pay the amount of the
millet seeds deposited with the Corporation by the plaintiff.
He would further submit that in other proceedings, the
officers of the Corporation has deposed that they have paid
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the amount to the defendant, which in turn, the defendant to
pay to the plaintiff and the amount was adjusted through
setting of the amount, and therefore now, it is the duty of the
defendant to pay the amount, which is due to the plaintiff. He
would further submit that looking to the depositions of the
officers of the Corporation, it was abundantly clear that the
defendant has received the amount due to the plaintiff, and
did not pay the same to the plaintiff, and therefore the learned
trial court has rightly passed the judgment and decree in
favour of the plaintiff. He would further submit that there is
no question of having any privity of contract between the
plaintiff and the defendant. The defendant was facilitating the
Corporation to grow the millet and grain seeds, and was
providing parcel of land to the poor agriculturist on behalf of
the Corporation. He would further submit that under the
instructions of the defendant, 1525 kg of millet seeds were
deposited to the Corporation by the poor agriculturist. He
would further submit that looking to the facts established
from the evidence that the defendant was facilitating payment
to the poor agriculturist after obtaining the same from the
Corporation, however, in the present case, the plaintiff has
not been paid the amount which was due to him, and
therefore the suit was filed, which is rightly decreed by the
learned trial court and confirmed by the learned appellate
court. He will further submit that there is no substantial
questions of law arise in a matter. He would further submit
that the factual aspects cannot be re-appreciated in the
second appeal considered it to be third trial.
6.1 Upon above submission, learned advocate Mr. PS Patel
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appearing for the plaintiff requests the court to dismiss this
petition.
7. It is apt to note that the plaintiff is the member of the
cooperative society. Learned advocate Mr. SK Patel appearing
for the defendant tried to dispute this aspect, however, he
remained unsuccessful as the concurrent findings held that
the plaintiff was a member of the defendant cooperative
society. There is no dispute on the aspect that the Corporation
to execute the program of growing hybrid seeds of millet and
grains, allotted plots to the poor agriculturists through the
defendant cooperative society. To implement the program at
village, Moti Chichano, Tal:Modasa, the defendant society was
chosen by the Corporation. It is equally undisputed that
large chunk of land has been given to the defendant society
for breeding of hybrid millet and grains. The plaintiff claimed
that he has been given one small parcel of land to grow millet
seeds.
8. Learned advocate appearing for the defendant again
tried to dispute this aspect. However, he remained
unsuccessful, as no evidence was produced on record during
trial. The real dispute starts from the date when the plaintiff
has deposited millet seeds to the Corporation after growing
them under the program carried out through the defendant
society and did not get money or amount of the millet seeds,
he has deposited with the Corporation.
9. Vide exhibit 45, the plaintiff has produced the judgment
and decree passed by the competent Civil Court in RCS No.
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11 of 1996. This suit was filed by the Corporation against the
defendant of the suit for recovery of certain outstanding
amount from the defendant. The judgment rendered by the
competent Civil Court indicates that the Corporation while
seeking recovery of the amount from the defendant, has given
set off of the amount which it needs to pay to the plaintiff for
depositing the millet seeds and thereafter, the Corporation
has claimed the remaining amount from the defendant in the
regular suit. The competent civil Court passed a degree in
favour of the Corporation on the 31st August 1998. The
judgment and decree passed in the RCS No. 11 of 1996 has
been challenged before the learned appellate Court
unsuccessfully by the defendant. Thus, this judgment and
degree clinches the issue raised by the plaintiff in the present
suit. The Corporation said that it has required to pay the
amount which the plaintiff claimed in the suit, however, it has
given set off of this amount in a suit filed by the Corporation
against the defendant being Regular Civil Suit No.11 of 1996,
which supports the claim of the plaintiff that the amount,
which is due to the plaintiff, is lying in the hands of the
defendant. This issue has been vividly discussed by the
learned Courts below. No error has been committed by the
learned courts below. The findings of the competent Civil
Court arrived at in RCS No. 11 of 1996 and confirmed in the
appeal proceedings, answered the issue framed by this court.
Further, the Corporation since has adjusted the amount which
it has required to pay to the plaintiff in favour of the
defendant, it is the duty of the defendant to pay the said
amount to the plaintiff, however, since the defendant did not
pay the said amount to the plaintiff, the suit was filed.
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10. In this factual milieu, it was not necessary to join the
Corporation as party defendant. The question of privity of
contract would not be inferred in the peculiar facts of the
case. Two judgments upon which learned advocate Mr. SK
Patel for the defendant relied upon, therefore, would not
render any help to the case of the defendant.
11. Accordingly, the substantial questions of law framed
here in above are answered against the defendant.
12. In the result, the second appeal fails and stands
dismissed. Interim relief, if any, granted earlier stands
vacated forthwith.
13. Registry is directed to return back the R & P, if any, to
the concerned Court forthwith.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
