R P GARG Vs. A V IMPEX

JUDGEMENT

(1.) This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the judgment of the trial court dated 22.07.2006 by which the trial court has decreed the suit of the respondent/plaintiff by passing a money decree for a sum of Rs. 9,15,055/- along with interest at 8% per annum on account of goods (non-basmati rice) sold by respondent/plaintiff to the appellant/defendant.

(2.) The facts of the case are that the respondent/plaintiff filed the subject suit pleading that the parties had entered into an Agreement on 10.11.1995/Ex.PW1/3 whereby the respondent/plaintiff was to supply to the appellant/defendant non-basmati brand "rado" rice of 100 Metric Tonnes (M.T.) @ US$ 0.30 per kg rice was to be shipped to Kiev in Ukraine. The respondent/plaintiff further pleaded that payment was to be made within 90 days from the date of the bill of lading. Respondent/Plaintiff is said to have sent the first shipment of 40 M.T. vide Bill of Lading dated 25.11.1995/Ex.PW1/4. Both the parties thereafter vide letter dated 15.12.1995/Ex.PW1/5 agreed to enhance the rate from US$ 0.30 to US$ 0.37 per kg for the balance supply of 60 M.T. It is pleaded in the plaint, that on 26.12.1995 another contract Ex.PW1/6 for 20 M.T. of rice was entered into between the parties at the enhanced rate of US$ 0.37 per kg. Therefore, at this stage, in total a further supply of 80 M.T. of rice was to be made by the respondent/plaintiff to the appellant/defendant at US$ 0.37 per kg. On 29.12.1995 the respondent/plaintiff sent another shipment of 40 M.T. of rice vide Bill of Lading dated 29.12.1995/ Ex.PW1/7. The last shipment of 40 M.T. of rice was sent by the respondent/plaintiff to appellant/defendant vide Bill of Lading dated 08.01.1996/Ex.PW1/8. The total value of 120 M.T. of non-basmati brand "rado" rice was US$ 41,600/-. The appellant/defendant paid US$ 16,530/- to the respondent/plaintiff on different dates and the balance payment of US$ 25,070/- remained. The respondent/plaintiff is said to have written various letters to the appellant/defendant which had no effect and ultimately the respondent/plaintiff sent a Legal Notice dated 11.03.1997, which also did not yield the desired result, and therefore the subject suit was filed claiming the balance amount of US$ 25,070 and interest at 30% of US$ 9,930, thus totaling to US$ 35,000/-, and which converted into Indian Rupee came to Rs.12,77,500/- being the suit amount.

(3.) The appellant/defendant contested the suit by filing written statement. It was pleaded that the respondent/plaintiff was guilty of concealment of facts because on 10.11.1995, not one but two contracts were entered into. The first contract was entered into in the morning which was proved as Ex.DW1/1, and as per this contract the appellant/defendant was to only provide a godown and office space at Kiev in Ukraine to the respondent/plaintiff, and out of the sales of rice stock made by the respondent/plaintiff, the appellant/defendant was to receive 25% of price as profit. The appellant/defendant was also to provide accommodation and other facilities to the representatives of the respondent/plaintiff to be paid by the respondent/plaintiff. It was pleaded that the subsequent agreement entered into in the evening of the same date being Ex.PW1/3, being for sale of rice by the respondent/plaintiff to appellant/defendant was only to facilitate and effectuate the first agreement. It was pleaded in the written statement that the appellant/defendant therefore was never a purchaser of the goods as no goods were sold by the respondent/plaintiff to the appellant/defendant. Further, it was pleaded in the written statement that whatever amount was received from sale of the goods after being credited to the account of the appellant/defendant, was thereafter credited to the account of the respondent/plaintiff in India. Along with the written statement counter claim was filed for recovery of a sum of Rs.1,80,000/- being the 25% profit margin to be paid by the respondent/plaintiff to the appellant/defendant. Interest was also claimed at 24% per annum.