MADAN, J. - (1.) THE defendant appellant has preferred this appeal against judgment & decree dated 16. 7. 1993 of the Additional District Judge No. 1, Ajmer whereby suit of the plaintiff (respondent) has been decreed for recovery of Rs. 80,191. 60p. against the appellant.
(2.) THE facts relevant for deciding this appeal are that the plaintiff Firm instituted a civil suit for recovery of Rs. 80,472. 70p. , which is an amount having been over paid in excess of the cost of the sugar purchased by the plaintiff Firm. In the plaint, it has been averred inter alia that total value of the sugar having been purchased by the plaintiff firm was worth Rs. 10,35,154. 40 whereas the plaintiff Firm remitted to the appellant Company a sum of Rs. 11,15,627. 10p, thereby made over payment of Rs. 80,472. 70p. by the plaintiff firm to the appellant Company. The appellant in written statement while denying the alleged over payment, contended that a payment of Rs. 2,42,000/-having been made by the plaintiff Firm to M/s Suresh Chand Prem Chand allegedly at the instance of the appellant was wrong because the Company never authorised or directed the plaintiff Firm to make payment of aforesaid amount to M/s Suresh Chand Prem Chand who were also not agent of the appellant. An objection was also raised as to the jurisdiction of the trial Court by contending that there was specific covenant in the Agreement between the parties that all suits and legal actions would be subject to the jurisdiction of the courts at Poone (Maharashtra State ). On the basis of the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether plaintiff is entitled to get Rs. 80,472. 70p. from the defendant? 2. Whether this Court has no jurisdiction to try the suit? 3. Whether defendant is entitled to special cost of Rs. 1000/-? 4. Whether the suit as framed is not maintainable against firm? 5. To what relief? To support the averments made in the plaint, the plaintiff produced Jogender Singh (PW1) whereas the defendant did not produce any witness in evidence. After hearing the parties, the learned trial Court by its judgment & decree, referred to above, decreed the plaintiff's suit for Rs. 80,191. 60. with interest @ 6% per annum from 28. 6. 82 till realisation of the decreetal amount. Hence this appeal. Shri J. C. Jain learned counsel for the appellant contended that there is no evidence on record to prove that M/s Suresh Chand Prem Chand was agent of the appellant, inasmuch as no payment of Rs. 2,42,000/-alleged to have been made at the instance of the plaintiff firm through Suresh Chand Prem Chand was ever received by the appellant and hence the learned trial Court committed an error of law in accepting such payment being made to the appellant. As per Shri Jain, conclusions drawn by the learned trial Court under issue No. 1 being based on no documentary or oral evidence but on conjectures & surmises are not sustainable. Next contention advanced by Shri Jain is that despite admission on the part of the plaintiff as to the specific contract in regard to the jurisdiction of courts at Poone, the learned trial Court has wrongly decided issue No. 2 in favour of the plaintiff.
(3.) DESPITE service of the notice, none appeared on behalf of the respondent plaintiff. I have heard the learned counsel for the appellant and carefully perused the relevant record with reference to the contentions advanced on behalf of the appellant besides considered the legal aspect of the matter as also the findings recorded by the learned trial Court. As regards issue No. 1 with regard to the entitlement of the plaintiff to recover the amount in question from the defendant, there is a clear and specific finding recorded by the trial Court that in para 11 of the plaint so also proved in evidence, after due verification of his accounts pertaining to the transaction which took place between the plaintiff and defendant, and as per statement of the accounts furnished to the Court, the plaintiff has proved to recover the amount of Rs. 80,191. 60p. from the defendant on account of over payment. To assess the amount, the trial court analysed the pleadings averred in the plaint and written statement and the evidence of the plaintiff. While doing so, the learned trial court rightly held that since the defendant failed to adduce any evidence in support of pleadings averred in written statement, the plaintiffs evidence remained unrebutted and unshaken and on the basis of which the learned trial Court has rightly concluded that the defendant appellant had remitted sugar worth Rs. 10,35,154. 60p. only to the plaintiff and further it stands proved that after 12. 7. 79 upon remittance of the specific quantity of sugar; the plaintiff had remitted a sum of Rs. 2,42,000/-by way of telegraphic transfer to the defendant through M/s Suresh Chand Premchand and Rs. 11,15,627. 10p. were paid to the defendant in all against delivery of the suger worth Rs. 10,35,154. 60p. The aforesaid conclusions are based on the evidence of the plaintiff which stood unrebutted and controverted by the defendant who did not adduce any evidence in rebuttal to support its case. Hence, findings recorded by the learned trial Court on Issue No. 1 are not open to challenge. ;