Punjab-Haryana High Court
Barjesh Grover vs M/S Bathinda Cold Drinks And Ors on 16 November, 2022
RSA-414-2012(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-414-2012(O&M)
Date of decision:-16.11.2022
Barjesh Grover
...Appellant
Versus
M/s Bathinda Cold Drinks and others
...Respondents
CORAM: HON'BLE MR.JUSTICE H.S.MADAAN
Present: Mr.Anupam Singla, Advocate
for the appellant.
Mr.Kashish Garg, Advocate
for respondent No.1.
****
H.S. MADAAN, J.
1. Briefly stated, facts of the case are that plaintiff Barjesh
Grover had brought a suit against defendants i.e. Bathinda Cold Drinks,
village Bibiwala, District Bathinda, Satinder Singh, Swami alias Som
Nath, Ajay Mathur and Sandeep Kumar, seeking recovery of
Rs.1,17,810/- i.e. Rs.76,500/- as principal amount on account of unpaid
bills/price of goods supplied/sold and Rs.41,310/- as interest thereon @
18% per annum till filing of the suit i.e. 21.10.2003.
2. As per the version of the plaintiff, he has been doing business
of supplying bottles of Pepsi Soda Water under the name and style of M/s
B.J. Suppliers, Goniana Mandi, District Bathinda being its sole proprietor,
to various customers in different parts of Punjab; the plaintiff has been
maintaining account books i.e. bill book, receipt book, gate
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passes/delivery passes in regular course of business, which are produced
before Income Tax Department as plaintiff concern is an income tax
assessee; the defendants were also dealing in business of Soda Water;
defendant No.1 was proprietor of Bathinda Cold Drinks, whereas
defendant No.2 - Satinder Singh and defendant No.3 Swami alias Som
Nath were employees of defendant No.1 working under its instructions;
defendant No.4 Ajay Mathur was Area Sales Manager, whereas defendant
No.5 Sandeep Kumar was company representative of Pepsi company at
Bathinda; defendant No.1 through its proprietor Darshan Singh
approached the plaintiff for the purchase of bottles of Pepsi Soda Water
with a request to supply the bottles to defendants No.2 to 5 on behalf of
defendant No.1 adding that he would take the delivery through Pepsi
company representative in that account of Area Sale Manager of company
of Pepsi and other representatives also and further other representatives
would take the delivery of Soda water for defendant No.1; the terms and
conditions were settled at Goniana Mandi; on 6.4.2002 defendant No.1
had placed order with the plaintiff for supply of bottles of Pepsi Soda; the
first order was sent through defendant No.2 in vehicle bearing No.PB-
03C-9771 vide gate pass No. 511 and bill No.509; on 7.4.2002 defendant
Darshan Singh came to the plaintiff's concern at Goniana Mandi asking
for supply of Pepsi Soda Water; Darshan Singh had sent his employee
defendant No.3 and Pepsi Soda Water was given to him, which he carried
in vehicle No.PB-03F-4243 vide bill No.518; again on 5.6.2000 Pepsi
Company representatives i.e. defendants No.4 and 5 contacted the
plaintiff and requested for supply of Pepsi Soda Water to defendant No.1;
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the plaintiff accordingly made the supply; defendant No.4 himself drove
vehicle No.PB-03F-4243; supply was made vide gate pass No.1102 and
bill No.809; defendant No.5 had put his signatures on bill and gate pass;
similarly on 23.10.2000 defendant No.4 came to the plaintiff requesting
for supply of Pepsi Soda Water to defendant No.1; he took the delivery,
which was made vide bill No.1091; defendant No.4 himself drove vehicle
No.PB-03F-4243; in that way the defendants had been purchasing Pepsi
Soda Water from the plaintiff from time to time as per requirements
making part payments, sending the gate passes and made endorsements on
back side of gate passes, which were sent to defendants with consignment
of Pepsi Soda Water in token of receipt of the said material; the bills were
also sent to the defendants; in that way after adjusting the debit and credit
entries, a sum of Rs.26,500/- was due to plaintiff from the defendants
towards supply of Pepsi Soda Water, 200 crates empty, the price of 200
crates came out to be Rs.50,000/- and that of a crate of empty bottles
Rs.250/-. According to the plaintiff, as agreed between the parties, the
interest was claimed @ 18% per annum. The plaintiff called upon the
defendants to make the payment but to no effect, as such he filed the suit
before Civil Judge (Sr.Divn.), Bathinda.
3. Notice of the suit was given to the defendants. Only
defendant No.1 appeared to contest the suit, whereas defendants No.2 to 5
failed to put in appearance despite service, as such were proceeded against
ex-parte.
4. In the written statement filed by defendant No.1, various
legal objections were taken that the suit was not maintainable, no cause of
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action arose to the plaintiff to file the suit; the plaintiff lacked locus standi
to file the suit; the suit being bad for non-joinder of necessary parties; the
plaintiff being estopped by his own act and conduct from filing the
present suit; the plaintiff not complying with the provisions of Order 7
Rule 17 CPC etc., the suit was barred by limitation etc. On merits, such
defendant contended that no order was placed by the answering defendant
with the plaintiff and no supply was made by the plaintiff to such
defendant, therefore, no payment from such defendant was due to the
plaintiff; defendants No.2 and 3 were not employees of the answering
defendant and the entire record was forged and fabricated. Such defendant
denied its liability to pay any amount to the plaintiff while praying for
dismissal of the suit.
5. From the pleadings of the parties, following issues were
framed:
1. Whether plaintiff is entitled for the recovery of Rs.1,17,810/- along
with interest at the rate of 18% p.a. from the date of institution till
realization of the amount? OPP.
2. Whether the plaintiff has no locus standi and cause of action to file
the suit? OPD.
3. Whether suit is not maintainable in the present form? OPD.
4. Whether the suit is bad for non-joinder of necessary parties? OPD.
5. Whether the plaintiff is estopped from filing the present suit by his
own act and conduct? OPD.
6. Whether plaintiff has not complied with the provisions of Order 7
Rule 17 CPC? OPD.
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7. Whether suit is barred by limitation? OPD.
8. Whether the defendant is entitled to special costs to the tune of
Rs.5,000/- U/S 35-A CPC? OPD.
9. Relief.
6. The parties were afforded opportunities to lead their
evidence.
7. During the course of his evidence, the plaintiff got his own
statement recorded as PW1 producing his affidavit as Ex.PW1/A along
with documents Ex.P1 to Ex.P9. The plaintiff further examined Sunil
Kumar as PW2, who tendered in evidence his affidavit Ex.PW2/A.
Thereafter, the evidence of the plaintiff stood closed.
8. In rebuttal Darshan Singh, proprietor of defendant No.1
concern appeared as DW1, tendering his affidavit Ex.DW1/A. Thereafter,
evidence of contesting defendant No.1 was closed.
9. After hearing arguments, the trial Court decided issue No.1 in
favour of the plaintiff and against the defendants. Issues No.2 to 8 were
decided against the defendants. As a result of findings on issues, the suit
of the plaintiff was decreed with costs finding the plaintiff entitled to
recover the suit amount of Rs.1,17,810/- along with interest @ 8% per
annum from the date of filing of the suit till its realization.
10. Feeling aggrieved by the said judgment and decree, the
defendant No.1 had filed an appeal in the Court of District Judge,
Bathinda, which was assigned to Additional District Judge (Fast Track
Court), Bathinda, who vide judgment dated 24.8.2011 accepted the
appeal, resultantly the judgment and decree passed by the trial Court were
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set aside and the suit for recovery brought by the plaintiff was dismissed.
11. The plaintiff is feeling dissatisfied with the said judgment
recorded by Additional District Judge (Fast Track Court), Bathinda and
has knocked at the door of this Court by way of filing regular second
appeal praying that the same be accepted, the impugned judgment and
decree passed by Additional District Judge (Fast Track Court), Bathinda
be set aside.
12. Notice of the appeal was given to respondent No.1, who put
in appearance through counsel.
13. I have heard learned counsel for the parties besides going
through the record and I find that the judgment passed by the trial Court is
result of proper appraisal of evidence and correct interpretation of law.
The trial Court was justified in decreeing the suit of the plaintiff. It has
properly analysed and appreciated the evidence adduced by the parties and
correctly interpreted the law while decreeing the suit of the plaintiff.
14. The approach of the First Appellate Court was wrong and
erroneous. Without considering the facts and circumstances of the case
properly and analysing evidence adduced by the parties in an appropriate
manner, it went on to dismiss the suit filed by the plaintiff. It has adopted
a hyper technical approach non-suiting the plaintiff for non-compliance of
Order 7 Rule 17 CPC. This provision is procedural in nature and has to be
interpreted in context of the facts and circumstances of the case and not in
a very narrow and strict manner.
15. Learned counsel for the appellant has referred to judgment
Smt.Sushil Rani Versus Attam Parkash, 2007(3) RCR(Civil) 396 by a
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Single Judge of this Court wherein discussing various judgments by the
Apex Court, it was observed that the procedure is handmaid and not the
mistress, a lubricant, not a resistant in the administration of justice and the
plaintiff cannot be denied an opportunity of participating in the justice
only because the original bahi entries were not produced along with the
plaint. It was further observed that by non-production of the original bahi
entries, no right of the defendant has been infringed and it was rule of
procedure and such rule of procedure is always subservient to and is in aid
of justice; it is not to be a tyrant but a servant, not an obstruction but an
aid of justice. It was categorically observed that substantive right of the
plaintiff to recover the amount due in accordance with law, cannot be
defeated on the basis of procedure, which is prescribed only to advance
the cause of justice.
16. The First Appellate Court has not considered the yardstick,
which is used for deciding dispute of a civil nature, which is to say is
preponderance of probabilities. If the instant case is examined on the
touchstone of preponderance of probabilities then it is much more in
favour of the plaintiff than the defendants. The plaintiff deals in supply of
bottles of Pepsi Soda Water. The suit filed is for recovery of small amount
of Rs.1,17,810/-. The plaintiff would not have indulged in any forgery or
fabrication for such an amount risking facing criminal action and loss of
reputation in business circles, if the alleged forgery was detected. It has
further been not explained by the defendants as to why the plaintiff should
select them particularly out of huge population of the country. The
plaintiff has given necessary details of the transactions of supply of Pepsi
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Soda Water etc. to defendant No.1 through other defendants. The dates of
supply, the name of defendant, who came to collect the consignment, the
vehicle number in which it was carried along with bill number and gate
pass number have been mentioned.
17. On the other hand, the defendants No.2 to 5 did not opt to put
in appearance despite service and were proceeded against ex-parte, which
means they had nothing to say in the matter and they were not desirous of
challenging the assertions made in the plaint. Only defendant No.1 had
put in appearance. Most of the objections taken by it are legal in nature
and there is bald denial of transactions as claimed by plaintiff, which does
not seem to be convincing. The plaintiff had adduced enough oral as well
as documentary evidence to prove his case. The plaintiff Barjesh Gover
getting his own statement recorded as PW1 tendering in evidence his
affidavit Ex.PW1/A narrating the entire facts of the case. He had brought
the original account books, receipt books, gate passes, delivery passes and
ledger, attested photocopies thereof being Ex.P1 to Ex.P9. PW2 Sh.Sunil
Kumar has tendered his affidavit Ex.PW2/A.
18. In rebuttal, there is statement of DW1 Darshan Singh,
proprietor of Bathinda Cold Drinks. The contentions in the affidavit are
on lines of the pleas as taken in the written statement. In his cross-
examination, he stated that they had purchased material from the plaintiff
in cash, which was on 2-3 occasions, in that way, he admitted business
dealings between the parties. In his cross-examination, Darshan Singh
does not come to be in good light.
19. The plaintiff had proved his case by bringing enough cogent
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and convincing evidence on record and the trial Court was justified in
decreeing the suit of the plaintiff, whereas the judgment delivered by First
Appellate Court reversing the judgment and decree passed by the trial
Court dismissing the suit is not sustainable since it cannot stand judicial
scrutiny for the reasons detailed above.
20. As such, the appeal which has got merit stands accepted. The
judgment and decree passed by Additional District Judge (Fast Track
Court), Bathinda dated 24.8.2011 are hereby set aside, whereas the
judgment and decree passed by the trial Court are restored. The appeal is
allowed with costs throughout.
16.11.2022 (H.S.MADAAN)
Brij JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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