M/s. Amit Transport vs M/s. Tomar Roadways

A.P. Lavande, J.—Heard Mr. Vijaychandran, learned counsel for By this Second Appeal, the appellant takes exception to the judgment and decree dated 25/10/2010 passed by the Adhoc District Judge-2, Fast Track Court-II, South Goa, Margao in Regular Civil Appeal no.105/2010 whereby the appeal preferred by the appellant herein against the judgment and decree dated 29/11/2006 passed by the Civil Judge, Senior Division, Vasco-da-Gama in Special Civil Suit no.21/2004/A has been dismissed.

The respondent filed the above suit against the appellant/plaintiff seeking recovery of the amount of Rs.2,13,364/- being the amount due to the plaintiff by way of hire charges of three trailers belonging to the plaintiff. The defendant contested the suit.

The trail Court by judgment and decree dated to pay the plaintiff the sum of Rs.2,13,364/- (Rupees two lakhs thirteen thousand three hundred and sixty four only) along with interest at the rate of 8% p.a from 30/6/2003 till realization of the amount.

Mr. Vijaychandran, learned counsel for the appellant stated that the lower Appellate court has erred in relying upon the letter of the defendant dated 11/3/2004 (Exhibit 20) to hold that the said document was enough to prove the contract between the parties. He further submitted that the lower Appellate Court has also erred in relying upon the rate of transportation at of Rs.200/- per metre which was based only on the oral testimony of the plaintiff without any documentary evidence in support thereof having being led by the plaintiff. Learned counsel further submitted that both the courts below have erred in holding that there was a privity of contract between the parties in absence of any cogent evidence. Having heard the learned counsel for the appellant and having perused the record, I am of the considered opinion that no case has been made out for interference with the impugned decree in exercise of jurisdiction u/s 100 of C.P.C. It is well settled that Second Appeal can be admitted only if a substantial question of law is involved in the appeal and in absence therefore, this Court would have no jurisdiction to interfere with the decree of the Lower Appellate Court.

Perusal of the pleadings of the petition and more particularly the written statement filed by the defendant discloses that the defendant had at no point of time in the pleadings raised an issue regarding the rate to which the plaintiff is entitled to nor produced any cogent evidence to establish part payment of money to the plaintiff. In so far as the payment of Rs.1,00,000/- to Mr. Chowdhary on behalf of the plaintiffs, as disclosed in the bank account, in the absence of any pleadings even in the written statement, the same does not advance the case of the plaintiff. In my opinion having regard to the defence taken by the defendant in the written statement and the evidence led by the parties, no fault can be found with the judgments and decrees passed by both the Courts below. In any case no substantial question of law is involved in the present appeal. Hence, the appeal is dismissed.