Court dismissed appeal by defendants resisting a suit for recovery of hire charges. Held that defendants admitted supply and receivability; failure to produce receipts was not a valid defense.
No order as to costs.
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THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO
APPEAL SUIT No.1436 OF 1998
JUDGMENT:
The defendants 1 and 2 in O.S.No.46 of 1991 on the file of the Senior Civil Judge, Narsapur are the appellants herein. The suit was filed for recovery of Rs.2,08,125 - 45 ps alleging that the plaintiff got lorry supplying business and the 3rd defendant is the employee of defendants 1 and 2. Defendants 1 and 2 have entered into a contract to transport the goods of O.N.G.C and they were taken on hire, the lorry supplied by the plaintiff since 1988, February. The 3rd defendant has been coming to Palakol and hired lorries. As and when the 2nd defendant received the payments from O.N.G.C. the amount had been paid to the plaintiff. The business continued cordially till June, 1989. From July, 1989, the defendants failed to pay an amount of Rs.2,00,000/- and consequently, the suit was filed for recovery of the said amount with interest.
2. The 2nd defendant has filed written statement denying that the 3rd defendant is an employee of the company. The plaintiff owns only one lorry and has no other lorries. The allegation that the defendants have liable to pay an amount of Rs.2 lakhs, as per annexure, is not correct. There was no admission of the claim at any point of time. According to the practice, the driver of the lorry has to take receipts from the defendant and give them to the concerned persons i.e., consignor and consignee copy, after taking the endorsement from O.N.G.C., he return to the defendant. The defendant on production of such consignee copy only, the O.N.G.C. provides for the payment of amounts to the defendant and inturn the amount will be paid to the lorry owner. But in this case, the plaintiff had not handed over any consignment receipts to the defendant to claim the amount from
O.N.G.C. Therefore, the suit is liable to be dismissed.
3. On the basis of above pleadings, necessary issues have been framed for trial and after considering the evidence on record, the Court below has accepted the claim of the plaintiff and aggrieved by the said judgment the present appeal is filed.
4. The point that arise for consideration is whether the defendant is not liable to pay the suit amount.
POINT:
5. As can be seen from the pleadings and evidence of DW1, there is no dispute that some of the lorries hired through the plaintiff and some payments were made earlier. In fact to show the factual status of the goods, the plaintiff has filed several invoices. The defendants have not filed any documents to show as to what are the accounts maintained by them and amounts due to the plaintiff. The contention of the defendants is that A to E Schedules attached to the plaint are not correct. But, however, there is no corresponding correct statement filed by the defendants. The liability for payment of the hire charges is said to be denied on the ground that the plaintiff or the lorry driver did not deliver the consignment receipt which facilitate drawing of money from O.N.G.C and therefore, for the failure of the plaintiff the amounts could not be paid. This is, however, against the contents of Ex.A4 wherein it was specifically stated that the bills are being processed and they are in accounts section and after getting the cheques shortly, the defendant informed that information will be delivered to the plaintiff and pending amounts can be claimed. In fact, there was no dispute regarding this letter about the amount claimed by the plaintiff was also under Ex.A5, which has been specifically informed that the cheque has been made ready and it will be received and the amount will be paid. It is only under Ex-A.7, it was informed that the original vouchers have to be given. But by that time the bills were already passed and
cheques are said to have been issued. When the legal notice was given, the reply was given under Ex-A7 discouraging the plaintiff from owing to suit and a compromise was made to settle the account and pay the same. Therefore, that being the situation the present defence of the defendants cannot be taken into consideration. In fact, there is no other material to show that the O.N.G.C. has withheld the hire charges and defendants have not received the money. Even otherwise when this statement clearly goes to show that the supply of lorries and the amount receivable by the plaintiff, which has been undisputedly admitted by the defendant, the contention cannot be accepted.
6. The Court below has rightly decreed the suit of the plaintiff and there are no merits and accordingly, the appeal suit is dismissed. No order as to costs.
7. Consequently, miscellaneous petitions, if any, filed in this appeal suit, shall also stand dismissed.
_____________________ N.R.L. NAGESWARA RAO, J
Date:03.04.2013 Knl/ka
1 issue framed by the court
Whether the defendant is liable to pay the suit amount despite denial of employment relationship.
Defendants 1 and 2
Plaintiff
N.R.L. NAGESWARA RAO
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
