M/s. Preet Textiles Mills and Others vs M/s. H.P. Cotton Textiles Mill Ltd.

Rakesh Kumar Garg, J.—This is defendants'' second appeal challenging the judgments and decrees of the courts below, whereby suit of the plaintiff-respondent for recovery of a sum of Rs. 1,44,341/- along with interest has been decreed. Case of the plaintiff-respondent, in brief, is that the plaintiff-Company vide letter dated 08.01.2004 made an offer for sale of cotton waste through open auction on 20.01.2004 and in pursuance thereof the defendant-appellants participated in the auction and made an offer for purchase of the flat waste and cylinder fan waste at the rate of Rs. 37 per kg and Rs. 22 per kg respectively. The said offer of the defendant-appellants was accepted by the plaintiff-respondent and thereafter the terms and conditions, as contained in the letter dated 23.01.2004, were also accepted by the defendant-appellants and a sum of Rs. 25,000/- for flat waste and Rs. 50,000/- for cylinder fan waste was deposited by the defendant-appellants as earnest money. The appellants were required to lift the above waste material produced during 01.01.2004 to 30.06.2004 on fortnightly basis against 100% payment. It was further agreed that in case the said material is not lifted in time by the appellants, the plaintiff-respondent was at liberty to dispose of the same to any other party and to make necessary recovery from the defendant-appellants in case the material is disposed of at a lesser rate than the rates offered by the appellants and also to adjust the earnest money against the loss so suffered by the plaintiff-respondent.

It is further case of the plaintiff-respondent that the defendant-appellants failed to lift the waste material in accordance with the terms and conditions despite repeated requests made by the plaintiff to lift the same after March 2004 onwards without any justification and on account of non-fulfillment of the agreement the plaintiff-respondent suffered losses. A registered notice dated 03.06.2004 was sent to the appellants to lift the waste material so allotted to them, failing which the plaintiff-respondent would be constrained to file a suit for recovery of money against them at their cost and risk along with interest after adjusting the total earnest money of Rs. 75,000/- and in that eventuality the defendant-appellants would be liable for all further consequences. The defendant-appellants failed to respond to the aforesaid notice. Thereafter, the plaintiff-respondent disposed of the accumulated waste material to other parties at lesser rates and as a result of this after adjusting the earnest money, the loss suffered by the plaintiff-respondent was Rs. 1,44,341/-. The said loss was duly informed to the defendant-appellants, who failed to make the outstanding payment and thus, the suit.

Upon notice, the suit was contested by the defendant-appellants raising various preliminary objections. On merits, it was admitted that the appellants had participated in the auction of cotton held on 20.01.2004 and had offered a bid of Rs. 37/- per kg for flat waste and Rs. 22/- per kg for cylinder fan waste, which was accepted by the plaintiff-respondent. It is further case of the defendant-appellants that they had purchased the goods on payment. The agreement dated 23.01.2004 was denied. It was further denied that they had failed to lift the waste material in accordance with the accepted terms and conditions despite the request made by the plaintiff-respondent to lift the same after March, 2004 onwards without showing any reasonable cause and justification. A further defence was taken that the quality of material sold to them was not the same as was shown to them earlier. It was further stated that no loss has been caused to the plaintiff-respondent.

A counter-claim was further filed by the defendant-appellants reserving their right to recover a sum of Rs. 1,10,443/- along with interest. After hearing both the parties, the Civil Judge, Hisar decided all the issues in favour of the plaintiff-respondent and in view thereof the suit was decreed; whereas the counter-claim filed by the defendant-appellants was dismissed.

Aggrieved from the same, the appellants filed an appeal in the lower Appellate Court, which was also dismissed.

In the grounds of appeal, the appellants have claimed that following substantial questions of law arise in this appeal:

i) Whether the suit was filed by legally competent and authorized person?

ii) Whether the suit is maintainable as the alleged authorized signatory has not stepped into the witness box and the sole witness has not verified his signature?

iii) Whether the respondents stand regarding having sold the goods at lesser point can be said to be proved on the sole testimony of plaintiffs employees without examining the alleged purchaser?

iv) Whether the appellant can be held liable to pay the compensation if the goods are sold after the expiry of the period of contract?

v) Whether grave and manifest injustice will be caused to the appellants?

Challenging the aforesaid judgments and decrees of the courts below, learned counsel for the appellants has vehemently argued that no loss was suffered by the plaintiff-respondent as alleged and neither such a loss has been proved on record, and in fact there is no evidence to prove the loss as alleged by the plaintiff-respondent, and therefore, the decree passed against them is liable to be set aside and the substantial questions of law, as raised in the appeal, arise for consideration.

However, a perusal of the judgment of the lower appellate Court would show that the plaintiff-respondent has placed on record document Ex. PW-2/A giving details regarding the things sold to the appellants in the auction, rate of auction, re-sale rate, name of the party to whom the waste items were re-sold, resale date, bill number with date, quantity and difference of rate between auction rate and resale rate and loss of amount.

It may further be noticed that there is no rebuttal to the aforesaid details, which have been proved by the plaintiff-respondent on record. Even before this Court, learned counsel for the appellants could not point out any evidence.

No further argument has been raised on behalf of the appellants.

In view thereof, it cannot be argued that there is any misreading and misinterpretation of evidence on record. The substantial questions of law, as raised by learned counsel for the appellants, do not arise at all. Dismissed.