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Judgment
V. Kanagaraj, J.—These Second Appeals are preferred against the judgment and decree dated 07.12.1992 made in A.S.No.59 and 60 of
1992 by the Court of Additional District Judge, Cuddalore, thereby confirming the judgment and decree dated 24.1.1991 made in O.S.Nos. 26 of
1988 and 76 of 1989 by the Court of Subordinate Judge, Cuddalore.
Tracing the history of the above second appeals coming to be preferred by the plaintiff in the suit, it comes to be known that the plaintiff in O.S.
No: 26 of 1988 has filed the suit for recovery of a sum of Rs.16,700/- with 12% interest from defendants 2 to 6, on averments such as that plaintiff
is a registered company; that the 1st defendant is the manufacturer and seller of tins at Virudhunagar; that the 2nd defendant is the Managing
Director of the 1st defendant company, defendants 3 to 6 are partners of the 1st defendant company; plaintiff was a manufacturer of refined oil
which was being sold at sealed tins; plaintiff used to purchase tins from M/s. Thangam Industries at Virudhunagar; that the second defendant on
starting a new company approached the plaintiff through its representatives stating that they shall supply polished tins at a reasonable price; that the
plaintiff knows the second defendant as a partner of M/s.Thangam Industries; that the plaintiff agreed to purchase tins from the 2nd defendant; that
on 11.04.1987 1500 tins were received by the plaintiff from the defendant; that on inspection some defects were found by the plaintiff which was
duly informed to the defendants; that the plaintiff paid the transport charges for those 1500 tins; that the 2nd defendant and his son after visiting the
plaintiff''s factory and on inspection of the damaged tins accepted to replace the damaged goods; that the plaintiff paid a sum of Rs.15,000/- on
04.08.1987 by way of demand draft to the 2nd defendant out of the business relationship prevailing between them at that time; when the plaintiff
expected replacement for the damaged tins, defendants on 10.12.1987 through their lawyer issued a legal notice to the plaintiff asking him to pay a
sum of Rs.12,233.44; that on 19.12.1987 plaintiff replied that the goods supplied were damaged ones and that the defendants are due to the
plaintiff a sum of Rs.15,000/- with 12% interest along with a sum of Rs.950/- towards transport charges and therefore, for recovery of a sum of
Rs.16,700/- from defendants 2 to 6 plaintiff has filed O.S. No: 26 of 1988.
On the contrary, the 3rd defendant filed a written statement, which was adopted by defendants 1, 2 and 4, stating that the suit for return of
money is not legally sustainable one; that the 2nd defendant is not a partner in M/s. Kanakavel Trading Co. and hence, he is not a necessary party
to this suit; that the defendants 3 to 6 are alone the partners of the 1st defendant company; that all the defendants 3 to 6 are equally managing the
company and hence, there is no managing director for the company and hence, the suit filed against the Managing Director of the 1st defendant
company is not sustainable in law; that both the company viz. Thangam Industries and Kanakavel Industries are sister companies; that on
11.04.1987 tins were sent to the plaintiff and other parties after duly checking up the quality, etc.; that the plaintiff has never made any complaint
about the quality of tins; that the goods were checked by the plaintiff and only one tin was found defective; that until two months plaintiff has not
paid any money and hence, on 17.6.1987 1st defendant sent a telegram followed by telegrams on 24.6.1987 and 4.7.1987. As the plaintiff has not
paid the amount after so many reminders, on 4.8.87 one Mr.Balaji was sent to collect the payment; that the plaintiff has handed over a demand
draft for a sum of Rs.15,000/- to Balaji; that on 08.10.1987 a registered notice was sent to the plaintiff claiming a sum of Rs.16,340.88 and for the
first time on 30.10.1987 the plaintiff replied to that notice stating that the goods are defective. So many registered notices and replies were
exchanged between the parties as to their respective claim and counter claim.
The defendants in O.S. No: 26 of 1988 have filed the suit O.S. No: 76 of 1989 against the plaintiff in O.S.No: 26 of 1988 for recovery of a
sum of Rs.15,000/- with 24% interest and costs.
On such pleading by parties, the lower court having framed the following issues for determination of the questions involved in the suit (O.S. No:
26 of 1988), viz., (1) Is it right to say that the suit is a defective suit for not having impleaded necessary parties? (2) Is the plaintiff entitled for the
amount claimed? (3) Is the plaintiff entitled to claim interest? And (4) to what relief, if any, is the plaintiff entitled to?, had allowed parties to record
their common evidence during which on the part of both parties they would respectively examine one witness each for oral evidence and for
documentary evidence, the plaintiff on his side, would mark 5 documents as Exs.A.1 to A.5 in support of its case and on the part of the defendants
they would mark 13 documents as Ex. B.1 to B.13 in support of their case.
Learned Subordinate Judge, Cuddalore, having traced the facts and circumstances of the case as pleaded by parties, would frame the issues
brought forth above and having appreciated the evidence issue wise, ultimately decreed the suit in O.S. No: 26 of 1988 with costs and interest at
the rate of 12% p.a. and dismissed the suit in O.S.No.76/1989 with costs. Aggrieved by the said judgment, the defendants in O.S.No.26/1988
and the plaintiffs in O.S.No.76/1989 preferred the appeals in A.S.Nos.59 and 60 of 1992 respectively before the Court of Additional District
Judge, Cuddalore, and the said Court also tracing the facts as pleaded before the trial court and framing the points: (1) Is it right to say that the suit
is a defective suit for not having impleaded necessary parties? (2) Is the plaintiff entitled for the amount claimed? (3) Is the plaintiff entitled to claim
interest? And (4) to what relief, if any, is the plaintiff entitled to?, and appreciating the oral and documentary evidence placed on record, allowed
the appeals, with costs, thereby setting aside the judgment of the lower court, as per its judgment dated 07.12.1992.
It is only against the judgment delivered by the first appellate court, the appellants have come forward to prefer the above second appeals on
certain grounds as brought forth in the grounds of second appeals and on the following substantial question of law:-
Whether the conclusion and decision arrived at by the lower Appellate Court cannot be reached on the basis of the evidence on record?
During arguments, learned counsel appearing on behalf of the appellant would crisply argue to the facts and circumstances of the case that the
appellants in both the above appeals being the plaintiffs in O.S.No.26/1988 counter to which the other suit in O.S.No.76/1989 had been filed by
the defendants in O.S.No.26/1988 and a common trial has been conducted in both the suits and a common judgment was delivered. The trial
Court agreeing with the case of the appellant in O.S.No.26/1988 and passing a decree in their favour with costs and disagreeing with the other
case filed by the defendants therein as the plaintiffs in O.S.No.76/1989 dismissed the same with costs.
Learned counsel would also give the details of the case of the appellant herein stating that as per the orders of the appellant for the supply of
container tins, they being the manufacturers of Oil, the defendants being the manufacturer of the tin containers agreed to supply the same and that
they supplied defective containers numbering 1500 and the amount agreed to be paid by the plaintiff was Rs.27,133/-; that the goods were
delivered under Invoices dated 11.4.1987 on collection of a sum of Rs.15,000/- as advance promising the balance amount to be paid immediately
after delivery, but since the tins were found leaking and defective, u/s 16 of Sale of Goods Act, they are invalid containers regarding fitness and
quality and therefore, the appellant rightly filed a suit for the recovery of a sum of Rs.16,700/- with interest at 12% per annum from the defendants
2 to 6 in O.S.No.26/1988.
At this juncture, the learned counsel would point out that the trial Court decreed the suit finding that it is the duty of the seller to establish that
he supplied the goods in a valid and acceptable manner but the Appellate Court found it differently so as to allow the appeal preferred by the
respondents and hence, the above Second Appeal. On such arguments, the learned counsel would seek to allow the second appeal.
On the part of the respondents, the learned counsel appearing for them also would only trace the facts and circumstances as pleaded by parties
and the evidence let in which have already been extracted in the foregoing paragraph and without pleading any law on the subject and therefore,
this Court has to decide the above second appeals pertaining to the substantial question of law framed on such arguments of both the learned
counsel and having regard to the materials placed on record.
So far as the substantial question of law is concerned, it has been formulated on general perception regarding the conclusion and decision
arrived at by the lower appellate Court based on the evidence on record. If this Court has to answer this substantial question of law, it has to trace
the evidence placed on record and appreciated by both the courts below. So far as the oral evidence adduced by the parties is concerned, one
witness on each side has been examined and they have adduced evidence in support of their respective cases and so far as the documentary
evidence is concerned, on the part of the appellants, five documents would be marked as Exs.A1 to A5. Ex.A1 dated 4.2.1983 being the
photostat copy of the licence issued to the firm. Ex.A2 dated 8.6.10987 being the letter sent to the plaintiff. Ex.A3 dated 10.12.1987 being the
notice sent by the first defendant. Ex.A4 dated 10.12.1987 being the reply sent to Ex.A3 and Ex.A5 being the rejoinder sent by the first
defendant. On the other hand on the part of the defendants, the respondents herein, 13 documents have been marked as Exs.B1 to B13. Ex.B1
dated 30.10.1987 is the letter sent by the appellant in favour of the respondent. Ex.B2 dated 8.10.1987 is the letter sent by the defendants to the
appellant. Ex.B3 is the photostat copy of the registration certificate. Ex.B4 dated 11.12.1983 is the photostat copy of the partnership firm
agreement. Ex.B5 dated 9.3.1987, Ex.B6 dated 10.4.1987 and Ex.B7 dated 11.4.1987 are respectively the credit bills (photostat copies) and the
others Exs. B8 to B12 are the copies of the telegrams issued on various dates. Ex.B13 dated 10.11.1987 is the legal notice sent by the
respondents in favour of the appellant.
In consideration of all these documents and the oral evidence adduced on the part of the witnesses, the trial Court would find that the
appellants have rightly revealed that the goods sent were not qualitative and it has been made known to the respondents by letters that it had been
lab tested and it had been agreed on the part of the respondents that in future they would avoid the defects and therefore, the trial Court would
arrive at the conclusion that all the tins supplied were defective which led to the decree to be passed in favour of the appellant. On the contrary on
the part of the appellate Court it would find that only one tin was lab tested and not all the tins and even though three times orders have been
placed and goods have been supplied in the earlier times they have been accepted and the amount had been remitted for those supplies and the
learned Additional District Judge , the appellate Court, would find that only one tin had been rejected by the appellant since it was defective and
therefore, it cannot be taken for granted that all the tins supplied by the respondents were defective and it could be seen that the defective tins had
been lab tested and therefore, it could only be taken for granted that the appellant had accepted the other tins being the valid ones. Thus, from out
of 1500 tins, for the purpose of rejecting one tin being defective, the lower Appellate Court could find from the evidence particularly, from the
letter correspondence and in assessing all the evidence, would arrive at the conclusion that since all other tins having been accepted validly, it is not
incumbent on the part of the respondents to take back those accepted materials and hence, ultimately the lower Appellate Court would arrive at
the conclusion to set aside the judgment and decree passed by the trial Court in both the suits respectively filed by the appellant in
O.S.No.26/1988 and the respondents in O.S.No.76/1989 thus, allowing both the appeals preferred by the respondents therein.
In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both
particularly on a careful perusal of the judgments rendered by both the Courts below, it could be found that the trial Court was able to arrive at the
conclusion based on the rejected one of the tins and not the others; that even though for the sake of the case put upon on the part of the appellant,
it has been pleaded to the effect that all other tins were also damaged. The first appellate Court was able to find that excepting the one tin rejected
as damaged which got lab tested, for future safeguards of their business by the respondents/defendants themselves all other tins since being on
good condition have been accepted by the appellant and therefore, had remitted the amount also. On such occasion whenever those tines were
supplied, thus paying a sum of Rs.15,000/- that too, after very many demands through letters in full agreement with the terms and conditions of the
contract entered into and therefore, there is no point in coming forward to claim the amount already paid in appropriation of the goods supplied
thereby ultimately leading the first Appellate to accept the case of the respondents herein allowing both the appeals filed by the respondents and
setting aside the judgments and decrees without costs in A.S.No.59//92 and with costs in A.S.No.60/92.
On a overall consideration of the various aspects involved in the decision of the cases by both the Court below, it is not only the decision
arrived at by the lower appellate Court but also the manner in which based on the evidence and in appreciation of the same would only lead to
accept the conclusion arrived at by the First Appellate Court and therefore, this Court is of the view that in answering the sole substantial question
of law framed, it cannot be said that the conclusion and decision arrived at by the lower Appellate Court in favour of the appellants dealt with by it
could not be reached on the basis of evidence placed on record but instead only such conclusions had arrived at by the lower Appellate Court
could be arrived at in the facts and circumstances of the case and in appreciation of the evidence placed on record and therefore, this Court does
not find any valid or tangible reason in existence to cause interference into the well considered and merited judgments rendered by the first
Appellate Court thereby setting aside the common judgment passed as per its judgment dated 24.1.1991 and therefore, the only conclusion that
this Court could arrive at in the wake of the substantial question of law framed is to confirm the common judgments and decrees passed in both
A.S.Nos.59 and 60 of 1992 the judgment and decree dated 7.12.1992 and hence, the following judgment in the above second appeals.
In result,
(i) Both the above second appeals do not merit acceptance and they become liable to be dismissed and are dismissed accordingly.
(ii) The common judgments and decrees dated 7.12.1992 rendered in A.S.Nos. 59 and 60 of 1992 by the Court of the Additional District Judge,
Cuddalore, thereby setting aside the common judgments and decrees dated 24.1.1991 rendered in O.S.No.26/1988 and O.S.No.76/1989 by the
Court of Subordinate Judge, Cuddalore, is confirmed.
(iii) However, in the circumstances of the case, there shall be no order as to costs.