SURESH GOVIND TARKAR Vs. KONKAN TRADING COMPANY

JUDGEMENT

(1.) HEARD Shri J. P. Mulgaonkar, learned Counsel appearing for the appellants and Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the respondent. The above Second Appeal challenges the judgment and decree passed by the Courts below whereby the suit filed by the respondent was decreed in terms of prayer A, B, C and partly in terms of prayer CC and consequently, the appellants were directed to hand over the possession of shop no.28, Municipal Building, Panaji Goa, along with the accessories, articles, furnitures, and fixtures described in the inventory of articles annexed to the agreement dated 01.10.1979 at Exhibit P -1. The appellants were also directed to pay a sum of Rs.10,792.02 being the commission for the period from 01.01.1983 till 30.09.1983, commission at the rate of Rs.3597/ -per quarter for the period from 01.10.1983 till 30.09.1984 and further mesne profits at the rate of Rs.3597/ -per quarter from 01.10.1984 till actual delivery of possession of the suit premises to the respondent. The appellants were also directed to pay the simple interest at the rate of 20% per annum on the said sum and the order of injunction was also granted restraining the appellants from interfering with the respondent's possession, occupation and use of the suit premises. Being aggrieved by the said judgment, the appellants have preferred the Regular Civil Appeal No. 158/2010 which came to be disposed of by judgment and decree dated 03.03.2011. The learned Lower Appellate Court partly allowed the appeal and upheld the directions issued by the learned Trial Judge to hand over the possession of the suit premises. The direction to pay mesne profit at the rate of Rs.3597/ -per quarter from 1.10.1984 till the date of decree was also upheld. The remaining portion of the judgment directing the payment of the mesne profit was set aside. The rate of interest was also modified and the rate of interest was fixed at 8% per annum on the said amount. It was further directed that the respondent was entitled for the mesne profit as ordered to be computed under Order 20 Rule of Civil Procedure Code. Being aggrieved by the said judgments passed by the Courts below, the appellants have preferred the present Second Appeal.

(2.) SHRI J. P. Mulgaonkar, learned Counsel appearing for the appellants has assailed the impugned judgment essentially on the ground that the respondent who is the plaintiff in the suit did not have locus standi to file the suit as according to him, the original agreement entered into between the parties was with M/s Konkan Trading Company, which is not the partnership firm which had filed the suit and/or is the respondent in the present appeal. The learned Counsel further pointed out that the original agreement was entered into between the appellants and M/s Konkan Trading Company way back on 01.10.1979 which was styled as Deed of Agreement but however, according to the learned Counsel, the agreement contemplated the transfer and assignment of the lease hold rights in favour of the appellants herein. The learned Counsel further pointed out that the suit has been filed by M/s Konkan Trading Company which came into existence pursuant to an agreement dated 22.12.1983 and as such, such partnership firm could not have been in existence in the year 1979. The learned Counsel further pointed out that the original partnership firm which came to be dissolved in the year 1982 has not been re -constituted at all nor the respondent has established by any evidence that they were the successors to the said partnership firm. The learned Counsel further pointed out that the respondent has not produced the Deed of Dissolution to ascertain as to whether the lease hold rights of the suit premises were allotted to the new partnership firm. The learned Counsel has taken me through the judgments passed by the Courts below and pointed out that the learned Lower Appellate Court has drawn an erroneous assumption whilst disposing of the appeal preferred by the appellants and as such, there are substantial questions of law which arise in the present appeal which calls for consideration by this Court under Section of Civil Procedure Code. The learned Counsel has further taken me through the substantial questions of law proposed by the appellants in the appeal memo and pointed out that all such substantial questions of law framed calls for determination by this Court in the present Second Appeal. In support of his submissions, the learned Counsel has relied upon the judgments of the Apex Court reported in : (2010) 2 SCC 407 in the case of Mohammad Laiquiddin and another V/s Kamala Devi Misra (dead) by Lrs., and others and : 1969 (3) SCC 555 in the case of Arjun Kanoji Tankar V/s Santaram Kanoji Tankar.

(3.) UPON hearing the learned Counsel and on perusal of the records, the facts which curl out from the material adduced on record establishes that there was a partnership firm which was constituted in the year 1979 which entered into an agreement in the nature of the licence agreement with the appellants. The learned Trial Judge has rightly appreciated the evidence on record and has come to the conclusion that the agreement entered into by the appellants was in the nature of agency agreement. The contention of the appellants to the effect that the lease hold rights of the suit premises were agreed to be transferred and/or assigned in favour of the appellants has been rejected by the learned Trial Judge after appreciating the evidence on record. It is also not in dispute that there is no written document to establish the said aspect. The material sought to be relied upon by the appellants to that effect is on the basis of the oral evidence which the learned Trial Judge after appreciating the evidence on record has rejected such claim. These findings arrived at by the learned Trial Judge have been upheld by the learned Lower Appellate Court after re -appreciating the evidence on record. These concurrent findings arrived at by the Courts below cannot be interfered by this Court in exercise of its power under Section of Civil Procedure Code. In fact, Shri J. P. Mulgaonkar, learned Counsel appearing for the appellants during the course of his submissions was unable to point out any piece of material which has not been considered by the Courts below whilst coming to such conclusion. The learned Counsel was unable to point out any perversity in the said findings and as such, the question of interference by this Court in exercise of its power under Section of Civil Procedure Code does not arise at all. Dealing with the next contention of the learned Counsel appearing for the appellants, I find that the learned Trial Judge on the basis of material on record and after appreciating each and every documents produced by the parties at para 6 of the judgment, has come to the conclusion that the partnership firm of the Respondents is a successor of the original partnership firm which has entered into an agreement with the Appellants in the year 1979. The learned Judge has found that the partnership was dissolved and that Ratnakar Rau was a proprietor of the suit establishment has not been disputed by the appellants. The learned Trial Judge has also considered the partnership firm constituted by the respondent in December, 1983 and has found that the said partnership firm has taken over all the lease hold rights in the suit premises in the name of Ratnakar Rau. It is pertinent to note that it is not in dispute that Ratnakar Rau was in fact the partner of the partnership firm when the original agreement was executed in favour of the appellants in the year 1979. It is also not in dispute that the lease hold right of the suit premises stood in the name of Ratnakar Rau. Apart from that, after the dissolution of the partnership firm when it is claimed by the respondent that Ratnakar Rau was the proprietor of M/s Konkan Trading Company in the year 1983, the Panaji Municipal Council being the landlord of the suit premises had entered into a lease agreement in favour of Ratnakar Rau. Apart from that, subsequent to the said agreement, in December 1983, Ratnakar Rau entered into a Deed of Partnership wherein the recital stipulate that the lease hold right of Ratnakar Rau would continue to be the assets of the partnership firm. All these facts which the appellants have failed to rebut or disprove by any evidence have been rightly accepted by the Courts below to come to the conclusion that the respondent is the successor of the partnership firm which entered into an agreement with the appellants. The learned Trial Judge has examined the evidence on record to come to the conclusion that the respondent is the successor of the partnership firm which entered into the agreement. The Lower Appellate Court has also considered the evidence on record and taken note of the documentary evidence adduced by the respondent to confirm the findings arrived at by the learned Trial Judge. Such concurrent findings which are on the basis of the material on record cannot be re -appreciated by this Court in Second Appeal. The Apex Court in the judgment reported in : 2010 (13) S.C.C 216 in the case of Municipal Committee, Hoshiarpur Vs. Punjab State Electricity Board and others has held at paras 16,24 & 26 thus: -