IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 24.01.2008 CORAM: The Honourable Mr.Justice S.TAMILVANAN A.S.No.339 of 1996 The Tamilnadu Civil Supplies Corporation Limited. Rep.its Regional Manager, Periyar Region, Erode. ... Appellant/Plaintiff -vs- 1.M.Velusamy 2.Nachammal 3.V.Gandhimathi (The respondents/defendants are the legal representatives of Mr.P.Muthusamy (Deceased)the first defendant in suit) ... Respondents/Defendants Appeal is filed under Section 96 r/w 41-A of C.P.C. against the judgment and decree made in O.S.No.267 of 1987 dated 18.10.1994 on the file of Subordinate Judge, Erode. For Appellant : Mr.V.Rangarajan For Respondents : Mr.A.K.Kumarasamy JUDGMENT
This appeal has been preferred against the judgment and decree dated 18.10.1994 made in O.S.No.267 of 1987 on the file of the Subordinate Judge, Erode. The appellant herein was the plaintiff in the suit before the Trial Court.
2.It is seen that the suit was filed by the appellant herein seeking a money decree against the estate of the deceased late P.Muthusamy Gounder in the hands of the respondent herein. It is not in dispute that late P.Muthusamy Gounder father of the respondents 1 to 3 had been a hulling agent under the appellant. As per the agreement dated 26.10.1982, entered into between the appellant and late Muthusamy Gounder, the appellant used to supply the paddy and after hulling, the later Muthusamy Gounder should return the required quantity of rice to the appellant. As per the case of the appellant, the late Muthusamy Gounder had received 270.614 Metric Tonns of Paddy, entrusted in 4677 bags for hulling, between the period from 28.10.1982 to 01.11.1982 for which he had to return 165.263 Metric Tonnes of rice. However, he had supplied only 105.680 Metric Tonnes of rice. Subsequently, the appellants sent various letters and remainders. In spite of the same, balance of rice has not been supplied by late Muthusamy Gounder. Hence, the suit was filed by the appellant/plaintiff, seeking a decree directing the respondents to pay a sum of Rs.3,09,197/- for the value of rice not supplied as per the contract, from the estate of the deceased Muthusamy Gounder, in the hands of the respondents. The respondents, as defendants had disputed the claim of the appellant by way of filling written statement. Considering the oral and documentary evidence adduced by both sides and arguments advanced by both sides, the Trial Court by the impugned judgment, rejected the claim of the appellant and accordingly the suit was dismissed without costs. Aggrieved by the judgment and decree, this appeal has been preferred.
3.Learned counsel appearing for the appellant would contend that as per Ex.A1, agreement, late Muthusamy Gounder had agreed to take Paddy for hulling and as per Exs.A2 to A25 and Exs.A26 to A39 paddy was supplied to late Muthusamy Gounder. However, according to the learned counsel for the appellant, the Trial Court without properly appreciating the evidence, rejected the claim of the appellant.
4.Per contra, Mr.A.K.Kumarasamy, learned counsel appearing for the respondents contended that as per the evidence available, it has been admitted by P.W.1 that there was single lock system maintained by the appellant whereby periodically minimum quantity of paddy was released to late Muthusamy Gounder, for hulling. Only after getting back the required quantity of rice, further paddy bags were released to the deceased. However, in order to substantiate the claim of the appellant, the account books, concerned registers maintained by the appellant were not produced before the Trial Court. There is no acceptable proper reason given for the non-production of the relevant account books and Registers to substantiate the claim of the appellant. Even in this appeal, no such register has been produced by the appellant by invoking Order 41 Rule 27 C.P.C.
5.In the suit, P.W.1 has deposed that there was a deposit of Rs.50,000/- by late Muthusamy Gounder with the appellant. Similarly, he has admitted that for hulling of paddy, he was entitled to get Rs.6.70 for hulling charges per quintal. Accordingly, he was entitled to Rs.7,080.60/- for 1056.80 quintal of rice supplied. It is not in dispute that late Muthusamy Gounder was not a signatory to Exs.A2 to A25 truck memos, to establish that the alleged quantity of paddy was supplied to him, as stated by the appellant, though Exs.A26 to A45 having marked as memos for the supply of paddy to late Muthusamy Gounder. According to the appellant, late Muthusamy Gounder had returned only 105 Metric Tonnes of rice at different dates to the appellant for the supply of Paddy. The appellant has not produced any register or account books to establish the alleged supply of Paddy to Late Muthusamy Gounder for the reasons best known to them. Admittedly, there was no legal notice by the appellant, prior to the date of filing of the suit. The appellant has relied on Ex.A36 said to be a letter, given by the hulling agent, late Muthusamy Gounder. As found by the Court below, in the said document there is no date mentioned. As per this letter late Muthusamy Gounder had sought permission from the appellant to return 50 tonnes of rice. There is no evidence on the side of the appellant, on what basis the hulling agent had sent the letter even without a date and other details. In the letter, only the appellant’s registered office seal is available and as per this seal, the date shown as 26.09.1984.
6.Learned counsel appearing for the appellant has not disputed that there was a criminal complaint lodged against the hulling agent late Muthusamy Gounder, as per Ex.A48. Ex.A48 is the copy of the office copy of the complaint given by the Regional Manager, Tamilnadu Civil Supplies Corporation Limited, Erode, before the Sub Inspector of Police, Perundurai, against late Muthusamy Gounder and two others. It has been admitted that the Criminal case in C.C.No.579 of 1980 filed against Muthusamy Gounder ended in acquittal. However, there is no bar in laying the civil case, if it is proved. To establish criminal liability, the prosecution should prove the case beyond reasonable doubt, before the Judicial Magistrate, whereas in a Civil Suit, preponderance of probability is sufficient to establish a civil claim.
7.It has been admitted by P.W.1 that he did not know anything about the execution of Ex.A1. Admittedly, he was a Single Lock Officer for releasing paddy to the hulling agent. Even by verifying the relevant register he could have stated what was the quantity of paddy supplied to the hulling agent and what was the quantity of rice returned by him after hulling. He has stated that the registers and other account books are in the office of the appellant but not produced in the Court. P.W.2, who was the Branch Manager of the appellant, Erode Branch has also admitted in his evidence that the Single Lock Officer was the incharge of the Godown, which had released paddy to late Muthusamy Gounder for the purpose of hulling and for which registers were maintained by Single Lock Officer and that there was a case filed against the Single Lock Officer for mis-appropriation. P.W.4, who was the Manager(Apox) in the office of the appellant, had deposed that on perusal of the account books the correctness of Ex.A49, could be decided. Ex.A49 is said to be the document of balance, but it has been prepared in a white sheet by ink and stated as office document. As contended by the learned counsel for the respondent without verifying the original account books Ex.A49 cannot be accepted as a proper document to fix the responsibility of non-supply of rice to the appellant.
8.The appellant, mainly based on Ex.A46, has claimed the suit amount against the respondent. The First respondent/M.Velusamy, who was examined as D.W.1, has disputed the signature available in Ex.A46. As per the case of the appellant, the document was signed by the deceased Muthusamy Gounder. Even P.W.1 was not a witness to the document and no other witness had spoken to about the letter said to have been addressed by late Muthusamy Gounder was signed by him. As found by the Court below, the appellant has not produced the relevant account books and registers to establish the alleged fact that, what was the quantity of paddy given to the hulling agent and what was the quantity of rice returned by him, so as to decide the short supply of rice and to assess the value thereon. Admittedly, no notice was given to the hulling agent, so as to get his explanation as found by the Court below. Similarly Ex.A46, cannot be accepted as a document to fix the liability on Muthusamy Gounder, the deceased hulling contractor. It is seen from the certified copy of the judgment rendered in C.C.No.57 of 1990 dated 23.11.1990, by the Chief Judicial Magistrate, Erode, that the hulling agent Muthusamy Gounder and others were acquitted after the trial of the case.
9.In the above circumstances, I could find no error or infirmity in the impugned judgment rendered by the Court below in dismissing the suit filed by the appellant, so as to warrant any interference of this Court. In the result, confirming the Judgment and Decree rendered by the Court below, this appeal is dismissed. However, there is no order as to costs.
24.01.2008
Index : Yes/No
Internet : Yes/No
Smi
To,
1. The Subordinate Judge, Erode.
2.The Record Keeper, V.R.Section, High Court, Madras.
S.TAMILVANAN,J.
Smi
A.S.No.339 of 1996
24.01.2008
