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Judgment
Valmiki J Mehta, J.—No one appeared in this case on 24.12.2010 when in the interest of justice, the matter was not dismissed for non-prosecution. On 3.1.2011, a request for adjournment was made on behalf of the counsel for the Appellant. No one is present today, though this matter is effective item No. R-5 on the Regular Board and it is 3.15 pm. I have therefore perused the record and am disposing of the appeal.
By means of this First Appeal u/s 96 of the Code of Civil Procedure, the Appellant/Defendant challenges the impugned judgment and decree dated 15.9.1999 whereby the suit of the Respondent/Plaintiff was decreed for Rs. 2,81,700/- with costs and interest at 18% interest per annum. The facts of the case are that the Respondent-firm was dealing in pulses and was supplying the same to the Government of India, Ministry of Defence. In April, 1995, the Union of India through Army Purchase Organization floated tenders for purchase of pulses and the Appellant approached the Respondent that if the contracts are awarded to the Appellant, they will place an order with the Respondent to supply the goods. The Respondent was to pay a commission to the Appellant/Defendant and it was agreed that the security amount will be furnished by the Respondent. It was further agreed that the earnest money of Rs. 2,00,000/- will be given by the Respondent/Plaintiff to the Defendant. Acting on the understanding, the Respondent on 6.4.1995 gave Rs. 2,00,000/- to the Appellant. The Army Purchase Organization accepted the tender for supply of pulses of the Appellant but the Appellant never informed the Respondent that the tender has been accepted. The Respondent/Plaintiff alleged that on account of this breach of understanding, the Respondent was put to a heavy monetary loss and also the Respondent became entitled to refund of a sum of Rs. 2,00,000/- which was given to the Appellant in the form of deposit receipt. The only defence of the Appellant in its written statement was that it had never refused to return the earnest money however the same would be refunded only when the Appellant received back the same from the Army Purchase Organization as Army Purchase Organization had not refunded the said amount.
The main issue which was called for decision by the Trial Court was issue No. 2 and decision on which issue was to decide the grant or denial of relief in the suit. The issue was "whether the suit was bad for non-joinder of the necessary parties?" This issue was framed because the Appellant alleged that Army Purchase Organization with whom the money was deposited by the Appellant was not made a party and which Army Purchase Organization had not refunded the money, consequently, it was claimed that the suit was bad for non-joinder of necessary parties.
This issue has dealt with by the Trial Court in para 8 of the impugned judgment and which reads as under:
The onus to prove this issue was also on the Defendant. The Ld. Counsel for the Defendant has argued that as the APO was to accept the tender hence the UOI is necessary party in the present case to which the Ld. Counsel for the Plaintiff has argued that there is no privity of contract between the Plaintiff and the APO. Hence, the UOI is not the necessary party in the present case. The DW-1 has admitted in his cross examination that APO has to sent the tender to the Defendant and the tender was filled up by the Defendant and the Plaintiff given the draft to the Defendant which the Defendant has submitted along with its tender and he has also admitted that whatever action was to be taken in respect of refund of the earnest money was to be taken by the Defendant and not by the Plaintiff and they had already taken action for the same. He has also admitted that in case the tender is not awarded then the earnest money paid by the Plaintiff was to be refunded to the Plaintiff when the same is received in full from the APO which shows that there was no previty of contract between the Plaintiff and the Defendant only. Hence the suit is not bad for non-joinder of necessary parties. The issue is decided in favour of the Plaintiff and against the Defendant.
The aforesaid finding of the Trial Court unexceptionable because there was no privity of the contract between the Respondent and the Army Purchase Organization. The contract was only between the Respondent/Plaintiff on the one hand and Appellant/Defendant on the other. The Appellant therefore could not take up the stand that it would refund the money to the Respondent/Plaintiff only when monies were received back by Army Purchase Organization and it has rightly been held liable to refund the earnest money to the Respondent/Plaintiff without waiting for the Army Purchase Organization to refund the same for the Appellant.
This Court can interfere with the impugned judgment and decree only if the same is illegal or causes grave injustice. Merely because two views are possible, this Court is not entitled to interfere with the impugned judgment and decree. I do not find any illegality or perversity in the impugned judgment and decree which calls for interference of this Court. The appeal is therefore dismissed, leaving the parties to bear their own costs. Interim orders stand vacated. Trial Court record be sent back.