The unsuccessful plailntiff in both the courts below is the appellant herein.
2. The plaintiff filed a suit in O.S.No.107 of 2002 before the Subordinate Judge, Nilgiris at Ootacamund for recovery of a sum of Rs.4,20,829/- from the defendant. The suit was partly decreed by the Subordinate Judge vide his decree and judgment dated 16.12.2008 directing the defendant to pay a sum of Rs.2,46,729/- with proportionate costs. Aggrieved over the same, the plaintiff filed an appeal in A.S.No.9 of 2009 before the District Judge, Nilgiris at Ootacamund. The learned District Judge dismissed the appeal and upheld the findings recorded by the trial court.
3. The parties are referred to as per their ranking in the original suit and at appropriate places, their ranks in the present appeal would also be indicated, if necessary.
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4. The brief case of the plaintiff is as follows. The plaintiff entrusted with the defendant the work of electrification of their Lawson Tea factory at Cinchona, Valparai, Coimbatore District and also entered into an agreement dated 23.05.1994 with the defendant in this regard. The total amount payable to the defendant on completion of work is Rs.20,99,234/-, out of which a sum of Rs.13,00,422/- was paid to the defendant during the month of July 1994. Thereafter, the defendant requested the plaintiff to pay a sum of Rs.3,26,487/- being the remaining 20% of the total cost of the materials supplied by him. The plaintiff agreed to pay the said amount on production of bank guarantee by the defendant to the tune of Rs.5,00,000/- Accordingly, the defendant produced the bank guarantee. While the work was in progress, the defendant was allotted a quarters beonging to the plaintiff outside the factory site at Lawson Tea Factory to store all the materials required for the electrical works. During inventory verification, it was found that the defendant had clandestinely removed the materials worth about Rs.2,46,729/-. Subsequently, during March 1996, the defendant removed materials worth about Rs.1,74,100/-. Thus, totally, the defendant is liable to pay sum of Rs.4,20,829/- to the plaintiff. 3 http://www.judis.nic.in S.A.No.197 of 2010
5. The said suit was resited by the defendant on the following grounds.
(i) The defendant never removed electrical materials worth about Rs.4,20,829/- as alleged by the plaintiff.
(ii) Initially, there was a shortgage in the stock and after verification, a list was prepared.
(iii) Subsequently, the store room, in which the materials were stocked, were locked by both the plaintiff and the defendant and it was agreed between the parties that the lock should be opened either by the plaintiff or by the defendant only in the presence of both the parties.
(iv) However, the plaintiff opened the lock on 18.03.1986 in the absence of the defendant and prepared a list stating that the materials worth about Rs.1,74,100/- were removed.
(v) A criminal case was also falsely foisted by the plaintiff against the defendant, as if the defendant fabricated bank guarantee. Therefore, the defendant prayed for dismissal of the suit.
6. The learned Subordinate Judge, Nilgiris at Ootacamund framed necessary issues and after full contest, decreed the suit partly directing the defendant to pay a sum of Rs.2,46,729/- with proportionate 4 http://www.judis.nic.in S.A.No.197 of 2010 costs. In the appeal filed by the plaintiff in A.S.No.9 of 2009, the decree and judgment passed by the trial court was upheld by the District Judge, Nilgiris at Ootacamund. Now the present second appeal is filed by the plaintiff.
7. At the time of admission, the following substantial question of law was framed.
Whether the courts below were right in rejecting a part of the claim of the appellant for recovery of the money due from the respondent?
8. The main contention of the appellant/plaintiff is that while electrical goods were in the custody of the plaintiff, the defendant clandestinely removed electrical materials worth about Rs.2,46,729/- and subsequently during the month of March 1996, the defendant removed electrical materials worth about Rs.1,74,100/- and thus totally the defendant has to pay a sum of Rs.4,20,829/.
9. The allegation of the plaintiff was totally denied by the defendant in his written statement. However, in the letters dated 01.02.1996 (Ex.A1 = Ex.A7) and 14.02.1997 (Ex.A2 = Ex.A8), the defendant 5 http://www.judis.nic.in S.A.No.197 of 2010 acknowledged the missing of electrical materials worth about Rs.2,46,729/- and also agreed to supply the said materials.
10. The claim of the plaintiff is that after the first inspection, the second inspection was made by him on 18.03.1998 and it was found that the defendant removed electrical goods to the tune of Rs.1,74,100/-. Both the courts below did not accept this plea of the plaitniff and dismissed the suit as regards this claim made by the plaintiff.
11. The contention of the defendant is that after taking inventory on 11.01.1996, the plaintiff and the defendant locked the store room, in which the materials were stored with two locks and it was orally agreed by the parties that the locks should be opened only in the presence of both the parties concerned. His specific contenton is that the plaintiff in violation of the said agreement, opened the lock on 18.03.1996 and prepared a list stating that the defendant is liable to pay a sum of Rs.1,74,100/-. In fact to the legal notice dated 18.12.2000(Ex.A3) issued by the plaintiff, the defendant sent a reply dated 11.01.2001 (Ex.A4) contending that as per the agreement between the parties, the store room was locked using two locks and the plaintiff without the knowledge of the 6 http://www.judis.nic.in S.A.No.197 of 2010 defendant, broke open the lock and took inventory. PW1 also admitted the double lock system in the store room, where the materials were stocked. It is pertinent to point out that there is no pleading in the plaint inthis rgard.
12. Mr.G.Anbumani, learned counsel appearing for the appellant contended that a criminal case was lodged against the defendant for producing a fake bank guarntee and that the defendant was also convicted in C.C.No.28 of 2000 by the Judicial Magistrate, Coonnoor. He also produced a copy of the judgment passed in C.C.No.28 of 2000, He would further contend that the conduct of the defendant would clearly go to show that the defendant has been in the habit of committing fraud and therefore he is liable to pay a sum of Rs.1,74,100/-, as claimed by the appellant/ plaintiff.
13. As far as the civil suits are concerned, the parties are bound by their pleadings and evidence. In the instant case, there is no pleading about the double lock system and the agreement between the parties that the lock should be opend only in the presence of both the parties. The PW1, who was examined on the side of the plaintiff had clearly admitted that there is a double lock system in the store room and 7 http://www.judis.nic.in S.A.No.197 of 2010 on 18.03.1996, the lock of the defendant was broke open and that the defenant was not present at that time. Therefore, the plaintiff cannot fasten liability on the defendant to pay a sum of Rs.1,74,100/- and both the courts below based on the evidence and facts, has come to a conclusion that the defendant is liable to pay only a sum of Rs.2,46,729/- with proportionate costs. In fact there is no substantial queston of law involved in the present second appeal. The judgment passed in a criminal case may not have bearing in the civil suit and therefore, I do not see any reason to interfere with the findings recorded by both the courts below.
14. In the result,
(i) The second appeal is dismissed.
(ii) The decree and judgment dated 01.10.2009 passed in A.S.No.9 of 2009 by the District Judge, Nilgiris at Ootacamund and the decree and judgment dated 16.12.2008 passed in O.S.No.107 of 2002 by the Subordinate Judge, the Nilgiris at Ootacamund are upheld.
1. The District Judge, the Nilgiris at Ootacamund.
2. The Subordinate Judge, the Nilgiris at Ootacamund. 9 http://www.judis.nic.in S.A.No.197 of 2010 R.HEMALATHA,J.
mst (Predelivery judgment in) S.A.No.197 of 2010 06.08.2019 10 http://www.judis.nic.in