SURESHWAR THAKUR,J. - (1.)The instant appeal stand directed against the concurrently recorded judgments and decrees by both learned Courts below, whereby, they decreed the suit of the plaintiff instituted against the defendant, wherein, he claimed recovery of a sum of Rs. 70,000/- from the defendant. In sequel thereto, the defendant/appellant herein is driven to institute the instant appeal herebefore.
(2.)Briefly stated the facts of the case are that the plaintiff on 10.09.1999 had instituted a Civil Suit for recovery of Rs. 70,000/- against the defendant on the allegations that the apple orchard of the plaintiff was situated in village Jahoo Deem, Sub Tehsil Nankhari. The plaintiff had been consigning his apple fruit to various parts of the country under the name and style of Kailash Orchard. The defendant had been carrying on business of forwarding of fruit from Rampur Tehsil to different parts of the country under the name and style of Best Apple Forwarding Agency. On 12.09.1996, the plaintiff had booked his 253 cases of selected royal apple as per G.R. copy Ex. PA through forwarding agency of the defendant. The apple fruit of the plaintiff was to be delivered to M/s. N.T.C. Delhi, who had been dealing in apple fruit at Delhi. In normal carriage routine, the consignment of apple fruit of the plaintiff was to reach the consignee at Delhi upto 15.09.1996. The plaintiff had alleged that the defendant had not carried his 253 apple cases to M/s. N.T.C., Delhi but had diverted the fruit elsewhere. The plaintiff had visited Delhi in the end of September, 1996 and had been informed by the consignee that fruit consignment of the plaintiff had not been delivered to him. It had been alleged that in September, 1996, at the relevant time, apple fruit was being sold in Delhi market at the rate of Rs. 350/- and 400/- per apple case. The plaintiff was entitled to a sum of Rs. 78,500/- on account of the proceedings of his apple fruit. After deduction of freight and commission, the plaintiff had claimed a sum of Rs. 70,000/- from the defendant on account of sale of his apple fruit. The defendant was bailee of the fruit and was required to account for to the plaintiff. In G.R. copy, Ex. PA the defendant had indicated a sum of Rs. 7,950/- payable by the plaintiff to the defendant on account of credit sale of packing cases. The plaintiff says that he had not purchased on credit or otherwise the packing material from the defendant. As such, the plaintiff was not liable to pay the amount of Rs. 7,950/- to the defendant. The defendant had been requested to clear the amount of 70,000/- on many occasions but without any result, hence the suit.
(3.)The defendant contested the suit and filed written statement, wherein, he has taken preliminary objections inter alia limitation, non-joinder and maintainability. On merits, it is admitted that the defendant had received 253 apple cases of the plaintiff for delivery to M/s. N.T.C. Delhi vide G.R. Ex. PA. It had been stated that when the fruit was to be loaded in the truck, the plaintiff and his men had represented for delivery of goods to M/s. S.A.A. Delhi. As such, the men of the defendant had cancelled G.R. Ex.PA bearing serial No. 731 and had issued G.R. No. 733 in favour of the plaintiff. The defendant had carried the goods of the plaintiff from Rai Bahli and had delivered the consignment to M/S S.A.A. The defendant had been paid freight charge and his commission in by the consignee. The defendant was not required to account for the sale proceeds in question. The sale proceeds of 253 apple cases of the plaintiff were payable to him by the consignee M/S S.A.A. The plaintiff was stated to be apple orchardist of Jahu Deem. It had been stated that on account of hailing, the apple fruit was not of good quality in 1996. Apple fruit of the area of the plaintiff had been sold in Delhi Market for Rs. 50/- per apple case. The plaintiff had not impleaded M/s. N.T.C. and M/s. S.A.A. as defendant in the suit. The plaintiff was not entitled to recovery the suit amount from the defendant.