1. This Regular Second Appeal is directed against the judgment of District Judge, Karnal, who on appeal affirmed the judgment and decree of the trial Judge dismissing the suit of the appellant for recovery of some articles and in the alternative for recovery of Rs. 2,67,270.90.
2. THE FACTS;
The appellant (hereinafter referred to as the plaintiff) came to the Court on the allegations that the plaintiff had appointed defendant No. 1 as commission agent for purchasing food grains for it vide letter dated October 27, 1969. The plaintiff placed gunny bags at the disposal of defendant No. 1 for filling food grains therein. The plaintiff also delivered two tarpaulins of the value of Rs. l,000/- each to the defendant for protecting the food grains from rains. The defendant No. 1 did not account for the material supplied and made short supply of food grains by 441 quintals 52 kgs. 800 grams of the value of Rs. 34,517.20. The claim .was split up as under:--
Articles
Quantity
Value
1.
Tarpaulins
2
Rs. 2000.00
2.
A Class gunnies
51035
Rs. 229657.50
3.
B Class gunnies
153
Rs. 520.20
4.
C Class gunnies
240
Rs. 576.00
5.
Wheat shortage
441 quintals
Rs. 34517,20
52 Kgs.
899 grams
Rs. 267270.90
3. The contesting respondent-defendant (hereinafter referred to as the defendant) controverted the material allegations made in the plaint. It denied its appointment as an agent for purchasing food grains for the plaintiff. The act of the plaintiff appointing it as commission agent was unilateral. It denied having made short supply of food grains. The receipt of the Tarpaulins was admitted but these were of the value of Rs. 100/-. Some gunny bags were received but the plaintiff lifted 937 gunny bags from the godown of the defendant and the plaintiff failed to account for these bags in its account. The authority of the District Manager to file the suit was assailed. An additional plea was taken that the suit was beyond limitation.
4. The defendant made a counter-claim for recovery of Rs. 92,554.20 against theplaintiff towards supply of wheat, market fee, commission fee and labour charges etc. The defendant claim lien against the gunny bags belonging to the plaintiff for the recovery of the outstanding dues.
5. The pleadings of the parties gave rise to the following issues:--
1. Whether the suit has been filed through a duly authorised person by the plaintiff? OPP
2. Whether the gunnies, as detailed in para 4 of the plaint, and two tarpaulins as referred to in para 3 of the plaint were held by the defendant as trustees on behalf of the plaintiff corporation as alleged? OPP
3. Whether defendant No. 1 had not delivered 334 bags weighing 441 quintals 52 kgs. and 800 grams of food grains to the plaintiff and the value of the undelivered food grains comes to Rs. 34,517/- OPP
4. Whether the value of the articles, as referred to in paras 3 and 4 of the plaint including the shortages as referred to in para, 5 of the plaint and held by the plaintiff as trustees is Rs. 2,67,270.00, as detailed in para 18 of the plaint? OPP
5. Whether the suit is within time? OPP
6. Whether letter dated 11-4-1975 of Joint Registrar Co-operative Society, Haryana, amounts to an acknowledgment on the part of defendant No. 1, as alleged? OPP
7. Whether the plaintiff is entitled to the recovery of articles mentioned in paras 15 and 16 of the plaint? OPP
8. Whether, in the alternative, the plaintiff is entitled to the recovery of Rs. 2,67,270.90 as alleged? OPP
9. Whether the plaint does not disclose the accrual of cause of action, as alleged? If so, to what effect? OPD
10. Whether the suit is bad for misjoinder of the parties and causes of action? OPD
11. Whether the bags placed in the premises of the defendant remained under the control of the plaintiff, as alleged? OPD
12. Whether the defendant is entitled to adjustment of any amount due from the plaintiff, towards the claim of the plaintiff, as alleged in para 2 of additional pleas of written statement? OPD
13. Relief.
6. The learned trial Judge found that the District Manager was validly authorised to file the suit. Under issue No. 2, the learned trial Judge found that 51035 A class gunnies, 153 B class gunnies, 240 C class gunnies and two tarpaulins were held by the defendants on behalf of the plaintiff as trustees. Issue No. 3 was answered against the plaintiff for the reason that it failed to prove that the defendants made short supply of the food grains. Issue No. 4 was answered in favour of the plaintiff and it was held that the defendant counsel conceded the claim of the plaintiff regarding the receipt of the gunny bags and the tarpaulins and value thereof as mentioned in the plaint and proved by the plaintiff on evidence. Issue No. 5 was answered against the defendant and it was held that the claim of the plaintiff was within limitation. Issue No. 6 was answered in favour of the plaintiff and it was held that vide letter Ex. PW8/C it was admitted that the goods subject matter of the suit were in possession of the defendants. Issues Nos. 7 and 8 were not separately dealt with. It was observed that these will be dealt with under the relief clause. Issues Nos. 9 and 10 were not pressed by the defendants. These were answered in favour of the plaintiff and against the defendants. Under issue No. 11, it was held, on the concession of the defendants counsel, that the gunny bags supplied by the plaintiff were in possession of the defendants. Issue No. 12 was answered against the plaintiff on the ground that the defendant had a lien for the unpaid price of the food grains supplied by it to the plaintiff.
7. The findings recorded by the learned trial Judge were affirmed on appeal except under issue No. 5. The learned First Appellate Judge held that the suit for the recovery of Rs. 34,517.20 for short supply of wheat filed by the plaintiff was beyond limitation. In other respect, the finding of the learned trialJudge was maintained. Both the courts on appraisal of the evidence and on concession made by the defendants' counsel, gave a firm finding of fact that gunny bags of various qualities and tarpaulins of the value of Rs. 2,32,753.70 were supplied by the plaintiff and not utilized by the defendants.
8. The short supply of food grains to the extent of 441 quintals 52 kgs. 800 grams valuing at Rs. 34,517.20 was upheld by both the courts but the learned Appellate Judge found that the suit qua the recovery of the amount pertaining to the short supply of food grains by the plaintiff was beyond limitation. The learned Appellate Judge modified the judgment of the trial Judge under issue No. 5 on the ground that letter Ex. PW8/C dated April 11, 1975 written by Joint Registrar Co-operative Societies did not amount to acknowledgment. Paragraph 3 of the letter indicates that the Registrar Co-operative Societies acknowledged that the goods claimed were in the custody of the Manager of the defendant but clarified that these were retained against the outstanding bills of the defendant from the plaintiff. The learned Appellate Judge erred in observing that this letter does not amount to acknowledgment. The claim of the plaintiff is admitted and also the liability of the defendants but a counter claim has been set up. The learned Appellate Judge was not correct in his observation that the letter does not amount to acknowledgment within the meaning of S. 18 of the Limitation Act. The letter can be split up in two parts, namely, admission of liability and acceptance of jural relationship. A counter claim was pleaded and it was asserted that the goods were retained for recovery of the amount payable by the plaintiff towards the outstanding bills of the defendants. The second part of the document relates to counter claim set up by the defendant. There is no proof of counter claim and it remained unsubstantiated. The finding of the learned Appellate Judge under issue No. 5 cannot be sustained. The finding of the learned trial Judge is affirmed and it is held that the suit is within limitation.
9. Both the courts below have dismissed the suit on erroneous grounds. They hastenedto dismiss the suit on the ground that the defendant had a lien against the goods for unpaid price of the goods supplied by it to the plaintiff, The defendant did not lead any evidence to establish the quality, quantity and price of the food granins which was allegedly to have been supplied by it to the plaintiff and the latter did not pay for it. If the defendant had made supplies of the food grains as alleged by it. there was no difficulty in proving the value thereof. Both the courts below have proceeded on assumptions. The First Appellate Court referred to some judgment to prove that an agent has a lien against the goods of the principal for payment of its commission fee or any other outstanding due or dues against the principal. There is no quarrel with the proposition. The question is only of its applicability and on the facts proved, there is hardly any justification to hold that the defendant had exercised the lien against the goods of the plaintiff for payment of its outstanding dues. Assuming that the defendant had a lien against the goods of the plaintiff for realisation of their dues, it cannot have a lien for a sum exceeding the one mentioned in the written statement. The claim of the plaintiff for the recovery of Rupees 2,67,270.90 against the defendant stood proved and the counter claim even if stood proved would be to the extent of Rupees 92,554.20 only. Even then, the plaintiff is entitled to a decree of Rs. 1,74,716.70. I fail to understand on what logic the courts below have dismissed the suit of the plaintiff in its entirely. A judicial officer is expected to act fairly. He has to play an important role in the administration of justice when he is dealing with civil rights of the parties. The least which could be expected of him is a just decision on evidence.
10. I have already held that the defendant has failed to establish its counter claim to the extent of Rs. 92,554.20 as alleged by it. The plaintiff has succeeded in proving its claim in its entirety. It is entitled to a decree for recovery of Rs. 2.67,270.90 with interest as claimed in the plaint. The appeal is accepted. The judgments and decrees of the courts below are set aside. The Suit of the plaintiff succeeds with costs throughout. Counsel fee is assessed at Rs. 1,000/-.
11. Order accordingly.