RASTOGI ICE & COLD STORAGE Vs. NARDEV SINGH

JUDGEMENT

(1.) HEARD learned Counsel for the appellant and perused the record.

(2.) THE appeal is barred by time. The judgment of January 24, 2007 was subjected to scrutiny by way of this appeal, preferred on 14.5.2007 i.e. more than four months after. The explanation offered for the delay is that the appellant had no knowledge of the proceedings of the complaint pending before the Forum below. He learnt about the judgment in the third week of April 2007 when a photocopy of the judgment was sent to him by the respondent. He then moved for certified copy of the judgment and filed this appeal on 14.5.2007. The explanation stands belied on the face of the judgment itself. A perusal of the judgment would appear to indicate that the registered notice of the complaint was dispatched to the appellant and it was personally served upon the Director of the Cold Storage. Not only this but Mr. Pawan Tewari, Advocate appeared before the Forum below on behalf of the appellant and submitted an application conveying to the Forum below that the parties had already compromised their dispute. Along with the application a copy of the compromise was also submitted. However, the respondent/complainant appearing personally for himself controverted the theory of compromise and denied having verified any such compromise. Not only this he also submitted his affidavit asserting therein that the theory of compromise was false and the compromise copy whereof was filed before the Forum below was also termed to be forged and fictitious. In this background it can be held that the appellant was fully aware of the proceedings of the complaint pending in the Forum below and despite what has been mentioned above ex parte proceedings were allowed to be drawn. It was a deliberate act which can be attributed to the appellant. We cannot therefore, extend any advantage to the deliberate default of the appellant. In these circumstances we are inclined to hold that this appeal is miserably barred by time and is liable to be dismissed on this score alone.

(3.) EVEN on merit the appellant's case stands no where. The contention of the appellant is that the entire consignment of potatoes had been delivered to the respondent but no convincing documentary proof of such delivery has been brought on record. The cold storage is expected to be in possession of the relevant registers maintained in its office and also at the main gate but neither any receipt of delivery nor any gate pass or any other evidence has been furnished before us so as to create a confidence in its plea of delivery. As mentioned earlier even the theory of compromise is totally baseless. The complainant proved his case of having entrusted 299 bags of potatoes with the appellant cold storage. In the absence of release of the consignment we hold that the appellant failed to prove its case while on the other hand the complainant had established his case to the hilt. The rate of potato also seems to be reasonable. Keeping in view all what has been said above we are of the decisive opinion that the impugned judgment does not call for any interference in the appeal. In the result this appeal is summarily dismissed. Appeal dismissed.