ORDER
1. The plaintiff in O.S. No.128 of 1981 on the file of the Sub-Court at Mayiladuthurai is the appellant in this appeal and the respondents herein are the defendants in that suit. That suit was filed for a declaration that the demand made on the plaintiff by defendants 2 and 3 is unjust, improper and illegal; to direct the defendants to refund the value of paddy and rice delivered by the plaintiff to the Corporation, which value was quantified by him at Rs. 29. 316.75 along with interest at the rate of 12% p.a. thereon from 2.3.1978 as well as subsequent interest till date of payment and for costs. The learned trial Judge on merits dismissed the suit. The correctness of that judgment is being questioned in this appeal by the plaintiff. In this judgment the parties to the proceedings will hereinafter be referred to as the plaintiff and the defendants. The material allegations in the plaint that are necessary and relevant for the purpose of deciding this appeal are as follows:
The plaintiff was appointed as a hulling and procuring agent by the second defendant in the suit under an agreement dated 15.8.1973. A sum of Rs, 25,000 in cash was deposited by the plaintiff with the second defendant as security deposit. The said agreement had been renewed from time to time. The plaintiff had been procuring paddy; converting the same into rice and forwarding the resultant rice to various places as directed by the officials of the Corporation. The plaintiff had been maintaining the registers and submitting the reports meticulously following the procedure prescribed and the instructions issued by the officials of the Corporation from time to time. The plaintiff had been raising bills for the amount payable to him by the Corporation for services rendered. The plaintiff’s claim in respect of certain
bills (as enumerated in Paragraph 7 of the plaint), is not yet finalised and it is not the subject matter of the suit.
3. For the season Kuruvai and Samba in the year 1974 and for the season Samba in the year 1975, the plaintiff delivered 43, 967 bags of boiled rice to the Corporation for movement to various places. The said quantity of rice was moved both by rail wagons and lorries. The commodities were delivered at the loading point by the plaintiff on 100% weighment basis. They were also delivered in the presence of the Loading Inspector, Procuring Officer and the Double Lock Officer of the Civil Supplies Corporation, who were all satisfied about the weighment of the bags so delivered. The Assistant Quality Inspector was also satisfied about the quality of the rice delivered. The delivery was so effected on 100% weighment basis and the consignment was delivered at the loading point to the Officials of the Corporation to be loaded either in the rail wagons or in the lorries. This procedure was as per the directions contained in the proceedings of the Civil Supplies Corporation dated 9.3.1974. As a token of acceptance of the delivery on the said basis, the Double Lock Officer and the Quality Inspector had also signed the weight check memos. While so, the plaintiff was shocked to receive a communication dated 24.9.1977 from the Deputy Manager (Accounts), Tamil Nadu Civil Supplies Corporation at Mayavaram stating that the “other end shortage”, as detailed, had been noted and that the plaintiff should deliver the “alleged shortage” in the commodity to the Corporation. The “alleged shortage” of rice was stated to be in the following lines:
Samba 1974 - 117.55 quintals
Kuruvai 1974 - 11.49 quintals
Samba 1975 - 60.89 quintals
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189.93 quintals
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This demand showing shortage was made for the first time after a lapse of three years from the date of delivery to the Corporation. The plaintiff denied his liability for the “alleged shortage” and sent a communication dated 27.10.1977 to the second defendant setting out all the details and praying for the withdrawal of the unjustified demand made on him. The Deputy Manager (Accounts) at Mayavaram Civil Supplies Corporation is also understood to have conveyed his views to the third defendant for re-consideration of the demand made on the plaintiff. The plaintiff addressed an appeal to the second defendant on 24.12.1977 and by communication dated 17.1.1978 requested for reconsideration of the matter. The appeal filed by the plaintiff was rejected by the second defendant by communication dated 25.1.1978.
4. The Civil Supplies Corporation as well as the first defendant through it’s Officers have been adopting various tactics to make the plaintiff comply with the “unjustifiable demand”. The plaintiff was threatened with coercive proceedings under the Revenue Recovery Act for meeting the said demand.
On 11.1.1978 the third defendant issued a circular intimating all procuring agencies not to accept paddy towards levy from agents, who had not made good the “alleged shortage”. The plaintiff was also informed that the licence issued to him under the Rice Mill Industries (Regulation) Act would be cancelled unless the “alleged shortage” is made good by him. The demand of the defendants was unjustifiable, arbitrary and illegal. However to avoid coercive proceedings, which would cripple the plaintiff’s business and put him to great monetary loss, the plaintiff agreed to deliver the alleged quantity of the commodities shown to have been in deficit, as “other end shortage” under protest by communication dated 9.2.1978 addressed to the first defendant. Pursuant to the said communication the plaintiff delivered the “alleged shortage” under protest on 2.3.1978 and the value of the same is Rs. 29,316.75. To recover the said sum along with interest, the suit had come to be filed stating that under the contract between the parties the defendants are not entitled to compel the plaintiff to make good the shortage, even assuming there is any.
5. The third defendant alone has filed the written statement, which had been adopted by the first and the second defendants. The material defence as could be culled out from the written statement is as follows:
“The allegations in the plaint are denied as false and contrary to facts. It is true that the plaintiff was a hulling agent. The particular bags involved in the suit were moved by wagons. Proviso to Clause 7(ii) of the agreement is very clear that the transport of rice is done at the risk of the hulling agent and he is responsible for the shortage, if any, on transit, if noticed at the unloading point. As per the above provision the Department is entitled to recover such shortages from the hulling agent at the rates specified under Clause 6 of the agreement. The quantities mentioned in paragraph 3 of the plaint were sent at the risk of the hulling agent through wagons to various places like Tirunelveli, etc.,……
and the shortages as shown in the plaint were noticed at the unloading point by the officials of the Civil Supplies Corporation.. These shortages alone were asked to be made good by the hulling agent. It is wrong to state that the plaintiff is not responsible for the “other end shortage”, since he delivered the rice in the presence of the Corporation officials. In fact the railway receipt stands in the name of the hulling agent. The weight check memos also stand in the name of the hulling agent. The delivery of the rice is deemed to have been done only at the unloading point to the Corporation officials.”
6. Under the contract the hulling agent cannot go behind the proviso to Clause 7(ii) of the agreement to contend that his responsibility ceases to exist at the loading point itself. It will not be sufficient if the hulling agent delivers the paddy or rice at 100% weighment basis at the loading point. It is no delivery at all. Actual delivery takes place only at the unloading point. Hence as per the agreement the hulling agent is responsible for the “other end shortages” also. It is significant to note that in the year 1973, the plaintiff accepting his responsibility for the “other end shortages”, had made good the shortages without any protest. If the Corporation takes the responsibility of transport of rice and if the hulling agent really delivers the rice to the
Corporation, then a stock receipt acknowledgment will be given to him accepting the correct weight. In such case the consignment will be moved not in the name of the hulling agent, but in the name of the consignor namely, the Civil Supplies Corporation. In fact such an understanding has taken place between the plaintiff and the Corporation in one particular consignment with regard to the rice delivered during Kuruvai 1975. Such stock receipt acknowledgment in the prescribed form was given to the plaintiff on 23.11.1975 and the consignment was also moved, not in the name of the plaintiff but in the name of the Procuring Officer of the Corporation. The weight check memo is also in the name of the Procuring Officer of the Corporation. The plaintiff alone is responsible for the accountability of the paddy procured. It is absolutely false to say that the plaintiff’s responsibility has been shifted or it has been taken over the Double Lock Officer or by any other Officer of the Corporation. The defendants rightly claimed the shortages at the other end made by the plaintiff after allowing 0.5% concession as per the rules of the Civil Supplies Corporation. The defendants are not responsible for the shortages of rice in transit. During the period of transit, rice is deemed to be in the custody of the plaintiff and not in the custody of the defendants. Therefore the defendants are not responsible to explain how the shortage occurred.
7. The third defendant filed an additional written statement and it contains the following averments:
“The plaintiff filed the suit originally in the name of T.R. Agoram Iyer as the plaintiff. On 28.9.1983 the plaintiff filed a petition for amendment of the plaint to the effect that the plaintiff’s name should be reads as “T.R. Agoram”, a partnership firm carrying on business in partnership at Akkur”. The amendment was ordered and therefore it would amount to a new plaintiff being added. The omission to include the partnership firm initially was not due to a mistake made in good faith. Since the new plaintiff had been added only on 29.9.1983 as per the order of the court in the amendment application, the suit claim is out of time and it is barred by limitation.”
On the above pleadings the learned trial Judge framed the following issues:
(a) Whether there was any shortage in the quantity of paddy in the other end as claimed by the defendants?
(b) Whether the plaintiff is liable to make good the shortage if any at the other end?
(c) Whether the notice issued under Section 80 of the C.P.c. is in accordance with law?
(d) To what relief, if any, the plaintiff is entitled?
The learned trial Judge also framed the following additional issue on 22.10.1983:
(a) Whether the suit is barred by limitation?
On the side of the plaintiff no oral evidence was let in. However 10 exhibits were marked namely, Exs. A1 to A.10. On the side of the defendants four witnesses were examined as D.Ws.1 to 4 and six exhibits were marked namely, Exs. B1 to B6. On issues 1 and 2 the learned trial Judge found that there was shortage in the commodity at the other end and therefore the plaintiff is bound in law to make good the shortage. On issue No.3 the learned trial Judge found that the notice issued under section 80 of the C.P.C. is valid and it is in accordance with law. On issue No.4 the learned trial Judge found that the suit is barred by limitation. As already stated, it is the correctness of the decision of the learned trial Judge on the above issues, except issue No.3, that is being questioned in this appeal by the plaintiff.
8. I heard Mr.K. Venugopal, learned counsel appearing for the appellant, Mr.V. Ravi, learned Government counsel appearing for R1 and Mr.P. Wilson, learned counsel appearing for R2 and R3 in this appeal. The learned counsel for the appellant would contend that under the contract between the parties, which is marked as Ex.A.1, the plaintiff cannot be made liable for the shortage, if any, at the unloading point since the contract does not provide for it. The learned counsel for the appellant would also contend that the rights and liabilities of the parties to Ex.A1 flow under it and no material other than the terms contained in Ex.A.1, can be taken into account to decide the truth or otherwise of the claim made by the defendants on the plaintiff. According to the learned counsel for the plaintiff, the entire commodity in issue in this case, had been delivered on 100% weighment basis at the loading point in the presence of the officials of the Civil Supplies Corporation, who after satisfying themselves not only with the weighment, but also on the question of quality, had made necessary records in the form of weight check memos, which are in their custody. When once the commodity is loaded in the presence of the officials in the manner indicated above, then whatever that happens either in transit or at the unloading point, the plaintiff cannot be made liable at all unless he is specifically made liable under the terms of the contract for shortage, if any, at the unloading point. According to the learned counsel for the appellant, under the contract, the plaintiff cannot be made liable at all for shortage, if any, at the unloading point. The learned counsel for the appellant would contend that “notice to produce” was given when the trial was pending on behalf of the plaintiff, to the defendants asking them to produce the records mentioned therein. Unfortunately I find that this memo giving notice to the defendants to produce certain documents were not marked before the lower court. I heard the learned counsel for the appellant as well as the learned counsel for the respondents on the marking of this document. It contains the signature of the Government Pleader and the signature was made on 21.2.1983. In view of the importance, which I am going to give to this document, I am inclined to mark this document as Ex.A11 in this case. The learned counsel for the appellant would argue that the documents asked for under Ex.A11 have an important bearing and impact on the issue to be decided in the suit and inasmuch as the defendants did not
produce the documents for which “notice to produce” is given, the court has to necessarily draw an adverse inference against the defendants, which the learned trial Judge has failed to do. The learned counsel would also contend that the bringing in of the partnership firm as the plaintiff in the place of the original plaintiff, is only a mis- description of the plaintiff originally and it will not amount to substitution of a new party. Therefore the learned counsel for the appellant would contend that the learned trial Judge has committed an error, both in law and on facts in finding that the suit is barred by limitation.
9. Mr.P. Wilson, learned counsel appearing for D2 and D3 would contend that under Ex. A.1 the plaintiff cannot escape the liability at all to meet the demand made by the second and the third defendants on him. According to the learned counsel for D2 and D3 the terms of the contract namely, Ex.A.1 is very clear about the rights and obligations of the parties to the agreement and there is no ambiguity at all. Clause 7(i) and (ii) of the contract clearly covers the situation like this and inasmuch as shortage is established at the unloading end, the liability of the plaintiff is absolute under the sub clauses referred to above and it does not lie in his mouth to deny his liability. According to the learned counsel for the second and the third defendants, the contractual obligation of the plaintiff will continue upto the unloading point and therefore unless the plaintiff establishes that the quantity of the commodity loaded at the loading point was in fact delivered into at the unloading point, the claim of D2 and D3 is sustainable both in the law and on facts. The learned counsel would contend that, on the totality of the circumstances available, it cannot be said that the judgment of the learned trial Judge is erroneous either in law or on facts and therefore it does not call for any interference. As far “as the substitution of the partnership firm in the name of the original individual plaintiff is concerned, the contention of the learned counsel for D2 and D3 is that, failure to implead the partnership firm at the initial stage is not due to any inadvertancy and therefore the suit is definitely barred by limitation, since by the time the partnership firm was brought on record, the claim of partnership against the defendants had become time barred. Therefore the learned counsel would contend that there are no merits in the appeal and it has to be dismissed. Mr. V. Ravi, learned Government Pleader appearing for D1 would contend that the plaintiff has to necessarily let in oral evidence to prove his case and since he had failed to examine any witness on his side, the relief claim by him in the plaint does not call for any consideration at all. In other words according to the learned Government Pleader, in the absence of any oral evidence on the side of the plaintiff, the court will have no other option except to dismiss the suit.
10. In the light of the pleadings referred to above, the following issues arise for consideration in this appeal:
(a) What are the rights and liabilities of the plaintiff and D2 and D3, who are parties to the contract under Ex.A.1 with reference to the appointment of the plaintiff as the procuring and hulling agent of D2 and D3?
(b) Whether under the contract the liability of the plaintiff for the commodity entrusted to him comes to an end at place of loading or does it continue upto the place of unloading where actual deliver is given to D2 and D3?
(c) Whether the suit claim is barred by limitation?
In the light of the arguments advanced by the learned counsel on either side, I perused the entire pleadings as well as the oral and the documentary evidence available on record. I also perused the judgment under challenge.
11. The rights of the parties with reference to the controversy at issue have to be necessarily decided on the basis of the terms and conditions contained in Ex.A1. In other words Ex.A.1 is the prime document on which the rights of the parties have to be necessarily decided. It is no doubt true that the plaintiff had not let in any oral evidence at all. But it is needless to state that in all cases oral evidence is not a mandatory requirement to establish the plaintiff’s case and even in the absence of oral evidence, a party to the suit can always establish his claim by way of documentary evidence. In my opinion, Exs. A.1, A.9 and A.10 are most important documents on the side of the plaintiff. Ex.A.1 is the contract between the plaintiff on the one hand and D.2 on the other hand with reference to his appointment as the hulling and procuring agent for the area falling within the jurisdiction of the third defendant. Therefore the rights and liabilities of the parties to Ex.A.1 can be easily culled out and decided one way or the other from the document itself and for which no oral evidence may be practically necessary. The fact remains that the shortage of the said quantity of rice was made that the shortage of the said quantity of rice was made good by the plaintiff to the defendants. The case of the plaintiff is that he made good the shortage “under protest”. Exs. A.9 and A.10 establish beyond doubt that the shortage in the delivered quantity was made good by the plaintiff “under protest”. Why I am stressing upon this is, if the plaintiff had made good the loss without protest, then probably he may not be heard at this stage. Inasmuch as the plaintiff had established that he made good the shortage only “under protest” as evidenced by Exs. A.9 and A.10, which are documents signed on behalf of D2 and D3, the fact remains that the plaintiff made good the shortage only “under protest”. Therefore the validity of the demand made by D2 and D3 on the plaintiff to make good the stated quantity of shortage can be easily decided with reference to Exs. A.1, A.9 and A.10 coupled with the documentary and oral evidence let in by the defendants.
12. Before going into the question of actual shortage, let me first decide as to whether the suit is barred by limitation? It is no doubt true that the plaint was filed in the name of “T.R. Agoram Iyer”. The long cause title of the plaint also shows that plaintiff as an individual. The allegation in the plaint shows that the plaintiff is the owner of Sri Ravi Rice Mill. Akkur holding a licence under the Tamil Nadu Rice Milling Industry (Regulation) Act, 1958; doing wholesale and retail trade in paddy and rice and also trading under the name of T.R. Agoram iyer – Sri Ravi Rice Mill, Akkur. Ex.A.1 is the agreement
between the plaintiff and D2 and D3 and it has been filed along with the plaint. The agreement is between the Civil Supplies Corporation on the one hand and T.R. Agoram Iyer holding a rice mill licence and carrying on business in partnership under the name and style of M/s. T.R. Agoram Iyer -Sri Ravi Rice Mill on the other hand. The third defendant in his written statement did not deny the allegations contained in paragraph 3 of the unamended plaint. On the other hand there is a specific admission in the written statement that the, plaintiff (as shown in the original plaint) is the hulling agent and doing business holding a licence under the T.N.R.M.I. (Regulation) Act 1958. By the order dated 29.9.1983 in I.A.No. 347 of 1983 in O.S.No. 128 of 1981 filed under Order 6, Rule 17 of the C.P.C. the plaintiff came to be described in the short cause title as follows:
“T.R. Agoram Iyer, a partnership firm carrying on business in partnership at Akkur.”
A similar amendment is also made in the long cause title, besides stating that the partnership firm is a registered partnership firm under the Registrar of Firms and T.R. Agoram Iyer is the Managing Partner of the in the said firm. The question therefore is whether the substitution of the firm in the short cause title of the plaint as well as in the long cause title of the plaint would amount to substituting a new party as the plaintiff in the place of the original individual plaintiff. The learned trial Judge has stated that it amounts to substitution of a new party and therefore the plaint is deemed to have been instituted only on the date when the substitution was ordered. The learned trial Judge also has stated that the claim made in the plaint was beyond the period of three years before the date of substitution and therefore it is barred by limitation. The only question now is whether the substitution of the partnership, on the facts available in this case, in the short and long cause title of the plaint would amount to adding a new party?
13. As I have already stated the agreement, which had been marked along with the plaint, shows that it is between the Corporation and the partnership from. In paragraph 3 of the unamended plaint it is stated that the plaintiff is the owner of Sri Ravi Rice Mill, Akkur and doing wholesale and retain trade in paddy and rice and also trading in the name and style of T.R. Agoram Iyer – Sri Ravi Rice Mill, Akkur. Therefore to my mind there is a clear indication in the plaint that the actual claim in the plaint is by the partnership firm and not by the individual and the parties to the suit were not in controversy at all on that factual aspect originally when the plaint, as amended, was on the record. By the amendment what all has been done is that the name of the partnership is also brought in the short and long cause title and that it is further amended to show that T.R. Agoram Iyer is the Managing Partner of the said partnership firm. According to me the unamendment allowed by showing the name of the partnership firm along with the original plaintiff on the facts noticed earlier, would not amount to substitution of a new party in the place of the original plaintiff. In support of my view there are
atleast three decided cases namely, one by the Hon’ble Supreme Court of India and the other two by this court and they are as follows:
(a) Mohideen v. V.O.A. Mohammed, .
(b) Venkata Mallayaya v. T. Ramasamy and Co. .
(c) Arockia Annai Rotary & Flow Mills v. S.B.I., .
The earliest judgment by this court is the judgment reported in Mohideen v. V.O.A. Mohammed, (D.B) In this judgment it has been held as follows:
“If however imperfectly and incorrectly a party is designated in a plaint the correction of the error is not the addition or substitution of a party but merely clarifies and makes apparent what was previously shrouded in obscurity by reason of the error or mistake. The question in such a case in one of intention of the party and if the court is able to discover the person or person intended to sue or to be sued a mere misdescription of such a party can always be corrected provided the mistake was bona fide, such an amendment does not involve the addition of a party so as to attract section 22(1), Limitation Act.”
In the next judgment the Hon’ble Supreme Court of India has held as follows:
“The High Court has observed that even assuming that it would have been more appropriate for the Receiver to show in the cause title that it was the firm which was the real plaintiff and that the firm was suing through him it was merely a case of misdescription and that the plaint could be amended at any time for the purpose of showing the correct description of the plaintiff. We agree with the High Court that where there is a case of misdescription of parties it is open to the court to allow an amendment of the plaint at any time and the question of limitation would not arise in such a case.”
The facts in the judgment of the Hon’ble Supreme Court of India are as follows:
The plaintiff was one Ramasamy & Company. The defendant was Venkata Mallayya, a partnership firm. In respect of the transactions between the parties the suit came to be filed. The suit was instituted by the Receiver Suryanarayana Garu describing himself in the plaint as follows:
“I. Suryanarayana Garu, Receiver appointed in O.S.No. 275 of 1948 on the file of the District Munsif’s Court, Guntur. The defendant contended that the suit was untenable because a receiver has no right to institute a suit in his own name and that the receiver had not been expressly authorised by the court to institute the suit in question. Amendment of the plaint was moved with the leave of court by describing the plaintiff as Messrs. T. Ramaswamy & Company represented by “I. Suryanarayana Garu, Receiver appointed in O.S.No. 275 of 1948 on the file of the District Munsif s Court, Guntur.” in the place of original. The amendment was ordered. Thereupon the defendant filed an amended written statement contended that since the amendment was made long after the period of limitation, it does not cure the initial defect in the suit of having been filed by a person other than the one who was entitled to institute
a suit and that consequently the suit was barred by limitation. The trial court on those defects dismissed the suit The High Court reversed the judgment and at the instance of the defendant, the matter was taken up to the Hon’ble Supreme Court of India. Only in the back drop of these facts, the law as laid down and extracted above had been rendered by the Hon’ble Supreme Court of India.”
14. In a judgment of this Court which is reported in Arockia Annai Rotary & Flour Mills v. State Bank of India, , this Court following the judgment referred to above in Mohideen v. V.O.A.Mohammed, , has held that the amendment asked for in that decided case would not amount to substituting a new party. In view of the categorical pronouncement of law laid down in the above referred to decided cases, I have no hesitation to hold that the learned trial Judge has completely erred in law and on facts in holding that there is substitution of a new party to the lis; the relief claimed in the plaint is beyond the period of three years after the new party was brought in and therefore the suit is barred by limitation. Consequently I have to hold that the finding rendered by the learned trial Judge that the claim is barred by limitation, cannot be sustained and the said finding is reversed.
15. Coming to the other two issues, I find that the defendants apart from relying upon Ex.B.6, also rely upon the oral evidence of D.Ws. 1 to 4 to sustain their claim against the plaintiff on account of the alleged shortage in delivery at the place of destination. The various places of destination in respect of the seasons forming the subject matter of the suit, as found in paragraph 7 of the written statement, are Tirunelveli, etc… As already stated the learned trial Judge relying upon Ex.B.6 and the oral evidence of D.Ws. 1 and 2 in particular, held that the defendants have established the shortage in delivery at the place of destination. I perused Ex.B.6. It deals with transport commencing from 31.1.1974 and ending with 4.3.1974. The places of destination as shown in Ex.B.6 are Nagercoil, Madras, Dindigul and Theni. Not even one consignment disclosed in Ex.B.6 had gone to Tirunelveli. The pleading and the oral evidence before court are that the entire transport of the commodity in respect of the seasons mentioned in the plaint, are only through rail wagons. Ex.B.6 shows that the transport commencing from 31.1.1974 and ending with 4.3.1974 were also by road. The defendants had also taken a stand that in view of the absolute liability of the plaintiff for safe custody of the commodity entrusted to them till the actual delivery at the place of destination, the defendants are not responsible to explain how the shortages occurred. The defendants rely upon Clause 7 (ii) of the contract, which is marked in this case as Ex.A.1 to sustain claim for the shortfall at the place of destination, which found acceptance with the learned trial Judge. The said clause reads as follows:
“The agent shall book the consignment by rail when required under clear and unqualified railway receipts. The value of the shortage if any noticed at the receiving and will be recovered from the agent at the rate specified in clause 6.”
Since the entire defence revolves around on this clause, I have very carefully analysed this clause to find out whether there is anything in this clause to make the liability of the plaintiff absolute for short delivery, if any, dehors the facts, circumstances, evidence and materials available in this case and I find that such a construction making the plaintiff liable absolutely, cannot be made at all for the following reasons:
16. According to me the entire contract namely, Ex.A.1 must be read as a whole to find out what exactly are the rights and liabilities of the parties to the contract and one clause in the agreement alone cannot be read in isolation to decide the issue in question. Therefore I read the entire contract as a whole and according to me the liability of the plaintiff as the procuring and hulling agent appears to come to an end the moment the goods entrusted to him are converted into rice and handed over to the Civil Supplies Corporation at the loading point subject to any exceptions provided for in the contract itself. To hold the contra would amount to arbitrarily making the plaintiff liable for every transaction to which he is made as a party, for which no specific provision is available in the document. Even assuming without conciding that sub-clause (ii) of clause 7 can be relied upon, even then it does not make the liability of the plaintiff absolute. From a reading of the above clause the following facts are very clear:
Only when required the plaintiff shall book the consignment by rail under clear and unqualified railway receipts. This would mean that in normal circumstances the liability of the plaintiff ceases the moment he delivers the goods at the loading point. An exception is provided for under the above referred to clause to the effect that only when the plaintiff is asked to book the consignment under clear and unqualified railway receipts, he may be made liable for shortages, if any, noticed at the receiving end. Clear and unqualified railway receipts would exclude “said to contain railway receipts”. In other words the quantity of the goods loaded into the railway wagon under the clear the railway receipts would assure that the quantity shown in the railway receipts was in fact loaded into the railway wagon and that therefore the plaintiff, who loaded the goods on a specific request to have a clear and unqualified railway receipts, would be bound by the terms of the railway receipts. In the case on hand, no railway receipt whatsoever is produced. There is no oral evidence before court to even infer that in respect of the Kuruvai and Samba season for 1974 and the samba season for 1975, the plaintiff was specifically asked to book the consignment by rail under clear and unqualified railway receipts.
17. Therefore there is no factual foundation to bring the plaintiff under sub clause (ii) of clause 7 of Ex.A.1. In the absence of any factual foundation on the lines indicated above, I am of the opinion that it is not possible to hold that the plaintiff is absolutely responsible for the shortages stated to have been found at the receiving end. In the context of the rival contentions, I perused the entire agreement namely, Ex.A.1 to find out whether the plaintiff could be
made liable for the shortages, if any, found at the receiving end. The preamble to the agreement reads that the Civil Supplies Corporation was willing to appoint as it’s hulling agent cum procuring agent, qualified persons in possession of Rice Mills with suitable godowns for the purpose of purchase of paddy/rice. On behalf of the principal the plaintiff was appointed as an agent. The sum and substance of the terms and conditions of the agency agreement so far as they are relevant for deciding this case are as follows:
“The stocks purchased and entrusted by the principal will be under the joint custody of agent and one of the officers of the corporation; the agent shall receive paddy/rice as are delivered to him by the principal for safe custody and will be solely responsible for the proper storage and safety; for transactions concerning the stock the godowns will be under doubt-lock system, once lock being operated by the agent and the other lock by the Corporation officials (clause iii); the agent shall deliver the rice obtained by hulling and procuring the paddy so entrusted in packed gunnies and stitched within seven days from the date of receipt of such consignment; he shall return the rice to the concerned Regional Manager or to the officer in charge of the storage point as directed by the Regional Manager (clause 5); the agent shall deliver out of the paddy so obtained boiled rice/raw rice at the rate of out turn for conversion fixed; the value of the short supply of rice calculated with reference to the out turn prescribed will be recovered from the agent; the rates to be allowed to the agent for transport, handling and other incidental shall be as detailed in Schedule 1 and 11 of the agreement (clause 6); the agent shall be liable for any damages or loss in handling the paddy allotted to him (clause 9) and where the agent fails to deliver the stocks of rice according to the out turn in clause 6 or where there is a reason to believe that he has misappropriated the rice out of the paddy issued, then the agent would be liable for it (sub clause 2 of clause 13).”
18. These are the relevant clauses apart from sub clause (ii) of clause 7 of the agreement, which has been already extracted. A reading of the entire agreement makes it clear that primarily the plaintiff is only a procuring and hulling agent. If he procures paddy or rice for and on behalf of the Corporation, then he has to account for the same. Likewise if the plaintiff has to hull the paddy, then he is bound to deliver the prescribed out turn of rice. The controversy between the parties in this case is not under either of the categories referred to above. I have already noted that sub clause (ii) of clause 7 of the agreement namely, Ex.A.1 alone is relied upon by the defendants as well as the lower Court to hold that the plaintiff is responsible for the shortage in delivery, if any, at the place of destination. I have also held that the above referred to sub clause cannot make the liability of the plaintiff absolute without reference to the prevailing circumstances. In my opinion under the contract as it is, it cannot be taken to mean that the plaintiff at all point of time would be absolutely liable for the shortage, if any, at the time of delivery without reference to the actual facts available. Therefore the Civil Supplies Corporation cannot rely upon any of the terms contained in Ex. A.1 to compel the plaintiff to make good the loss, if any. I have already found that to invoke the liability under sub clause (ii) of clause 7 of the contract, there is no factual foundation in this case.
19. Even without reference to the terms of Ex.A.1, let me decide whether the Civil Supplies Corporation had established the actual loss stated to have been occasioned on account of the conduct of the plaintiff. The defence of the defendants in the written statement may assume some importance in this context, wherein the defendants have stated that as the rice continued to be in the custody of the plaintiff during the entire transit, the defendants are not responsible to explain as to how the shortages occurred. Though the defendants have taken such a positive stand in the written statement, yet they attempted to establish the alleged shortage by producing Ex.B.6 and by examining D.Ws. 1 to 4. Ex.B.6 is only a statement having several tabular columns such as, date; railway receipt No; wagon No; Name of consignee; variety; despatch quantity; acknowledged quantity; shortage; 0.5% admissible shortage and net shortage. The consignee’s name in all the cases of transaction reflected in Ex.B.6 is the Senior Regional Manager of the Tamil Nadu Civil Supplies Corporation in the place mentioned therein. Therefore the consignee’s name is not the name of the plaintiff. The learned trial Judge himself in his judgment had noted that marking of Ex.B.6 was objected to by the plaintiff. It is common knowledge that when the railway receipt is in the name of the consignee, it is only the consignee, who can take delivery of the transported commodity at the various places of destination. There is neither a pleading nor oral evidence to show as to who took delivery of the goods contained in the railway receipts disclosed in Ex.B.6. None from the various destinations mentioned in Ex.B.6 have been examined to speak about the delivery taken by them at the receiving end. Further Ex.B.6 is not the original document itself evidencing shortage, if any, and it is only a statement containing various details culled out from the original records available with the Civil Supplies Corporation. Ex.B.6 was marked through D.W.4. He would admit in his cross examination that he is not the author of Ex.B.6 and the original records from which the entries in Ex.B.6 were made are available with them. However he would add that he was present when the statement was prepared. Ex.A.11 is the notice given on behalf of the plaintiff to the defendants to produce the records mentioned therein. One of the records mentioned therein is “documents or registers showing shortage in the destination”. Admittedly the defendants have not produced that record. The question therefore is whether the defendants can withhold the relevant piece of evidence with themselves, which if produced, may throw some light on the dispute between the parties. D.W.2 would also admit in his evidence in cross that on reaching the place of destination, the transported commodity would be weighed; it would be entered into the registers and such registers are available in their office.
20. Mr.K. Venugopal, learned counsel appearing for the appellant would contend relying upon the judgment reported in Lakhan Led v. State of Bihar, A.I.R. 1968 S.C. 1412 that where a party to a proceeding withholds a relevant material which is in his possession, then an adverse inference can be
drawn by the court against such party. In that judgment the Hon’ble Supreme Court of India has held as follows:
“(A) Evidence Act (1872), Sections 114(g) and 103 – A party in possession of best evidence which would throw light on the issue in controversy withholding it – court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him – party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it. A.I.R. 1917 PC 6 (8) and Civil Appeal No. 941 of 1965, D/ 15.4.1968 (SC) and AIR 1915 PC % (98). on.”
It is needless to state that the registers maintained at the various places of destination would definitely be the best piece of evidence to establish beyond doubt as to what exactly is the shortage in respect of the consignments covered under the various railway receipts/lorry receipts as disclosed under Ex.B.6. For no justifiable reasons the defendants have not produced the records asked for. I have no doubt in my mind therefore to say that if the registers referred to above, which are admittedly in the possession of the defendants, are produced, it may throw some light as contended by Mr.K. Venugopal, learned counsel for the appellant against the defendants that there was no shortage at all at the unloading point. It is not possible to brush aside this argument easily and according to me it definitely deserves acceptance. Therefore I am inclined to draw an adverse inference against the defendants for not in their possession as called for by the plaintiff under Ex.A.11, which would establish beyond any realm of doubt as to what exactly was the position on the commodities reaching the various places of destination.
21. Even otherwise I tried to find out whether the oral evidence of D.Ws.1 to 4 had factually established any shortage at the various places of destination. D.W.1 in his evidence would state that the transshipment was from a rail head at Mayavaram. In the railway station the goods must be weighed. All the bags should be weighed on 100% weighment basis and the records must be signed. Exs.B.1 to B.4 are the weighment check memos at the place of loading. All consignments have been sent only through rail wagons. In cross examination he would again state that all the bags would be weighed and then only transported. The rail wagon would be a covered wagon and it would be sealed. No bags were loaded in the lorry. The quality Inspector has also checked the goods. The railway receipts are in the name of the plaintiff. The goods have gone to Combater and Chennai. At the place of destination, only the Civil Supplies Corporation cleared the goods and took delivery of the same. D.W.2 would stated in his cross examination that, after unloading from the rail wagon, the goods would be loaded into a lorry. Before loading into the lorry no weighment would be done and the lorry belonged to the Civil Supplies Corporation. The goods will be weighed only after it is taken to their custody. There is a register establishing the regiments done and it will contain all the details. D.W.3’s evidence is very crisp and short and it is of no use either to the plaintiff or to the defendants. D.W.4’s evidence in chief is to the following effect:
“The plaintiff has to bear the expenses for transport only upto Mayavaram Railway Station from Akkur namely, his place of business. The plaintiff made good the shortages under protest. The total quantity of “other end shortage” is shown in Ex.B.6, Ex.B.6 was prepared with reference to the details available at the other end shortage registers”. In cross examination he would state that the railway receipts should be booked in the name of the plaintiff. He would admit that all the railway receipts are in the name of the Senior Regional Manager of the concerned place of destination of the consignee.
22. It is needless to state that in such transactions, it is only the consignee, who can clear the goods and not anybody else. Therefore it is clear from the evidence of D.W.4 as well as from the evidence of D.W.1 that it is only the Civil Supplies Corporation, that cleared the goods covered under the various railway receipts as well as the lorry receipts at the place of destination. The defendants have not chosen to produce any records, other than Ex.B.6, to establish the shortage, if any, at the place of destination. Ex.B.6, in the absence of the original records, cannot be acted upon at all. In fact the categorical plea of the defendants and their evidence is that all the goods were transported only by rail. Ex.B.6 shows that some transactions were by road as well. Under these circumstances I am of the firm opinion that even by oral evidence the defendants have not established any shortage.
23. One other aspect, which may enter into the mind of the court to doubt the case of the defendants is that, the alleged shortage was in respect of the deliveries made for the samba and kuruvai season for the year 1974 and Samba season for the year 1975. But the complaint of short delivery was made only in the year 1977, which according to the plaintiff is almost after three years. The possibility of pilferage, theft, loss or damages when the goods were in the custody of the defendants after they were cleared under the railway receipts/lorry receipts, cannot be totally ruled out. Therefore I find even on facts that the defendants have not established the short delivery stated to have been caused by the plaintiff. Looking from any angle, I am of the opinion that the plaintiff has definitely made out a case for a decree being passed in his favour. Accordingly the judgment and decree dated 29.11.1983 in O.S.No. 128 of 1981 on the file of the Sub-Court at Mayiladuthurai are set aside and there shall be a decree as prayed for in that suit. The appeal is accordingly allowed with costs throughout.