DRIECTOR/MANAGER vs K CHENAPPA

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

ST
DATED THIS THE 1 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

REGULAR SECOND APPEAL NO. 95 OF 2015 (MON)

BETWEEN:

DRIECTOR/MANAGER
M/S PRANAV AGRO INDUSTRIES LIMITED
C/O MYSORE FEEDS LTD.,
NAYANAHALLI, MYSORE ROAD
BENGALURU 560 038.
REP BY ITS P A HOLDER
MR G S VENKATESHMURTHY
…APPELLANT
(BY SRI. SHRISHAIL NAVALGUND, ADVOCATE)

AND:

1. K CHENAPPA
S/O K HOLIYAPPA
AGED ABOUT 66 YEARS
AGRICULTURIST
R/O AZAD NAGARA
KUDLIGI TOWN
BELLARY DISTRICT – 583 135.

2. BRANCH MANAGER
STATE BANK OF MYSORE
KUDLIGI BRANCH, KUDLIGI TOWN
BELLARY DISTRICT – 583 135.
…RESPONDENTS

(BY SRI. B M SIDDAPPA, ADVOCATE FOR R-1
R-2 IS SERVED AND UNREPRESENTED)

THIS RSA IS FILED U/Sec.100 OF CPC., AGAINST THE JUDGMENT

SIGN

& DECREE DTD 16.09.2014 PASSED IN R.A.NO.07/2014 ON THE FILE OF
THE SENIOR CIVIL JUDGE & JMFC., CHLLAKERE, PARTLY ALLOWING

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THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DTD
16.12.2013 PASSED IN O.S.NO.84/2011 ON THE FILE OF THE CIVIL JUDGE
AND JMFC, MOLAKALMURU.

THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

ORAL JUDGMENT

st
The appellant was the 1 defendant in O.S.No.84/2011 filed
st st
by the 1 respondent – plaintiff against the appellant – 1
nd nd
defendant and 2 respondent – 2 defendant for recovery of a
sum of Rs.3,33,992/- together with interest at 12% p.a. from the
date of the suit till realisation. The said suit having been contested
by the defendants, the Trial court proceeded to pass the impugned
judgment and decree partly decreeing the suit as against only the
st nd
1 defendant and dismissing the suit as against the 2 defendant
st
by directing the appellant – 1 defendant to pay a sum of
Rs.2,33,900/- together with 6% p.a. to the plaintiff from the date of
the suit till realisation. In an appeal filed by the appellant in
R.A.No.7/2014, the First Appellate court partly allowed the appeal

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by modifying the judgment and decree of the Trial court by directing
the appellant to pay a sum of Rs.2,01,900/- to the plaintiff together
with 6% p.a. from the date of the suit till realisation. Aggrieved by
the impugned judgments and decrees of the Trial court and First
Appellate court, the appellant is before this Court by way of the
present appeal, which was admitted by this Court on 14.11.2024 by
framing the following substantial questions of law:
“A) Whether the judgment and decree of the two courts
below are sustainable in law as the same are rendered without
considering the admitted documents Ex P11 statement of accounts
according to which the amount payable to the Plaintiff is only
Rs.80241/- that too after giving credit for invocation of bank
guarantee and return of goods?
B) Whether both the Courts below could decree the claim of
the plaintiff-1st respondent for payment of go-down rent when there
is a clear bar both under Section 49 of the Registration Act, 1908
and under Section 34 of the Karnataka Stamp Act, 1957?
C) Whether the Courts below are justified in decreeing the
claim of the plaintiff for payment of salary to the Go-down Keeper in

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the absence of proof of payment and employment of the Go- down
Keeper?
D) Whether the decree of the Courts below insofar as the
refund of the Bank Guarantee is concerned is tenable when the
Courts below have totally ignored the invoices produced by the
appellant as per Exs.D2 to D6?”

2. Meanwhile, Company Petition No.256/2013 was filed as
against the appellant – Company under Section 433 of the
Companies Act before the Bombay High Court which is pending for
winding up of the appellant – company, in which, the Bombay High
Court appointed the official liquidator to represent the appellant –
company. Under these circumstances, having regard to the
liquidation / winding up proceedings initiated against the appellant
– company, in which, an official liquidator has been appointed, the
present appeal is also prosecuted by the official liquidator and is
represented by the counsel for the official liquidator on behalf of the
appellant – company.
3. Heard learned counsel for the appellant and learned
st
counsel for the 1 respondent and perused the material on record.

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Re-Substantial questions of law;
4. A perusal of the material on record will indicate that the
st
plaintiff instituted the aforesaid suit interalia contending that the 1
defendant failed to supply all the poultry feed to the plaintiff,
despite having received various sums of money from the plaintiff. In
st
addition thereto, some of the poultry feed supplied by the 1
defendant were poisoned and expired, resulting in loss and
damage to the plaintiff, apart from the fact that due to the same,
some feed were unsold and had to be subsequently sold in favour
of other customers, resulting in further loss being caused to the
st
plaintiff, who returned the same to the 1 defendant. It was also
st
contended that the 1 defendant illegally and highhandedly invoked
Bank Guarantee in a sum of Rs.1,20,000/- furnished by the plaintiff
without being entitled to do so and that the plaintiff was entitled to
st
recover the said sum also from the 1 defendant as per the details
mentioned in the plaint and accordingly, the plaintiff sought for a
decree in his favour against the defendants. Both the defendants
filed separate written statement disputing and denying the various
allegations and claim and sought for dismissal of the suit.

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5. Based on the aforesaid pleadings, the Trial court framed
the following issues for consideration;

“ 1)
ªÁ¢AiÀÄÄ 1£ÉÃ ¥ÀæwªÁ¢¬ÄAzÀ PÉÆÃ½ DºÁgÀªÀ£ÀÄß 2004£ÉÃ
E¸À«¬ÄAzÀ ¥sÉ§æªÀj 2009gÀªÀgÉUÉ RjÃ¢¹zÀÝ JA§ÄzÀ£ÀÄß ªÁ¢AiÀÄÄ
gÀÄdÄªÁvÀÄ¥Àr¹zÀªÀgÉÃ?
2) ¸ÀzÀj PÉÆÃ½ DºÁgÀªÀ£ÀÄß ¸ÀAUÀæ»¸À®Ä ªÁ¢AiÀÄÄ
ªÉÆ¼ÀPÁ®ÆägÀÄ ¥ÀlÖtzÀ°è UÉÆÃqÁ£ï£À£ÀÄß ¨ÁrUÉUÉ ¥ÀqÉ¢zÀÝgÀÄ ºÁUÀÆ
UÉÆÃqÁ£ï£À ¨ÁrUÉ wAUÀ¼ÉÆAzÀPÉÌ gÀÆ. 1,000-00 DVvÀÄÛ D ¨ÁrUÉAiÀÄ£ÀÄß
1£ÉÃ ¥ÀæwªÁ¢ PÉÆqÀ®Ä M¦àzÀgÀÄ JA§ÄzÀ£ÀÄß ªÁ¢AiÀÄÄ
gÀÄdÄªÁvÀÄ¥Àr¹gÀÄªÀgÉÃ?
3) 1£ÉÃ ¥ÀæwªÁ¢AiÀÄÄ UÉÆÃqÁ£ï QÃ¥ÀgïUÉ ªÀiÁ¹PÀ gÀÆ. 2,000-
00 ¸ÀA§¼À ºÁUÀÆ ¸ÀzÀj UÉÆÃqÁ¤£À «zÀåZÀÒQÛ ©¯ï£À ºÀtªÀ£ÀÄß PÀlÖ®Ä
M¦àPÉÆArzÀÝgÀÄ JA§ÄzÀ£ÀÄß ªÁ¢AiÀÄÄ gÀÄdÄªÁvÀÄ¥Àr¹gÀÄªÀgÉÃ?
4) ªÁ¢AiÀÄÄ PÉÆÃ½ DºÁgÀªÀ£ÀÄß ªÀiÁgÁl ªÀiÁrzÁUÀ 1£ÉÃ
¥ÀæwªÁ¢AiÀÄÄ ¥Àæw aÃ®PÉÌ PÀ«ÄÃµÀ£ï ºÀtªÀ£ÀÄß PÉÆqÀÄwÛzÀÝgÀÄ JA§ÄzÀ£ÀÄß
ªÁ¢AiÀÄÄ gÀÄdÄªÁvÀÄ¥Àr¹gÀÄªÀgÉÃ?
5) 1£ÉÃ ¥ÀæwªÁ¢AiÀÄÄ 2009£ÉÃ E¸À« CPÉÆÖÃ§gï wAUÀ¼À°è
¥ÀÆgÉÊ¹zÀÝ PÉÆÃ½ DºÁgÀ ¨ÉAUÀ¼ÀÆgÀÄ ¥sÀlPÀ¢AzÀ §A¢zÀÄÝ CzÀÄ
«µÀ¥ÀÆjvÀªÁVvÀÄÛ ºÁUÀÆ D DºÁgÀzÀ ¸ÉÃªÀ£É¬ÄAzÀ PÉÆÃ½UÀ¼ÀÄ ¸ÀwÛgÀÄvÀÛªÉ
JA§ÄzÀ£ÀÄß ªÁ¢AiÀÄÄ gÀÄdÄªÁvÀÄ¥Àr¹gÀÄªÀgÉÃ?
6) ¢£ÁAPÀ: 25.05.2011 gÀ vÀ£ÀPÀ 1£ÉÃ ¥ÀæwªÁ¢AiÀÄÄ ªÁ¢UÉ
MlÄÖ gÀÆ. 3,33,992-00 UÀ¼À£ÀÄß PÉÆqÀ¨ÉÃPÁVgÀÄvÀÛzÉ JA§ÄzÀ£ÀÄß ªÁ¢AiÀÄÄ
gÀÄdÄªÁvÀÄ¥Àr¹gÀÄªÀgÉÃ?
7) ªÁ¢AiÀÄÄ F zÁªÉAiÀÄ°è PÉÆÃjgÀÄªÀ ¥ÀjºÁgÀªÀ£ÀÄß ºÉÆAzÀ®Ä
CºÀðgÉÃ?
8) ªÀiÁqÀÄªÀ DYÉÕ CxÀªÁ rQæ K£ÀÄ?”

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6. Plaintiff examined his son / PA Holder as PW-1 and one
st
witness as PW-2 and Exs.P1 to P34 were marked, while the 1
defendant examined its Senior Accountant as DW-1 and
documentary evidence at Exs.D1 to D6 were marked on its behalf.
As stated supra, the Trial court partly decreed the suit of the
st
plaintiff only as against the appellant – 1 defendant directing it to
pay a sum of Rs.2,33,900/- together with interest at 6% p.a. from
the date of the suit till realisation in favour of the plaintiff and
nd
dismissed the suit of the plaintiff as against the 2 defendant. In an
appeal in R.A.No.7/2014, the judgment and decree of the Trial
court was partly modified by reducing the aforesaid sum of
Rs.2,33,900/- to Rs.2,01,900/- by the First Appellate Court by
holding as under:-
“
19. On reappreciation of pleadings and evidence
placed by both parties before the lower court, the points
that would arise for my consideration are as under:
POINTS

1. Whether appellant/defendant No.1 proves that non
appearance of plaintiff to give oral evidence is fatal to
the case of plaintiff?

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2. Whether appellant/defendant No.1 further proves that
findings given by the lower court on Issues No.5 and 6
are contrary to the evidence placed by the plaintiff?
3. Whether appellant/defendant No.1 further proves that
judgment and decree of lower court is contrary to law
and evidence on record and it needs interference of this
court?
4. What order?

20. My answers to the above points are as under:
Point no.1: In the negative
Point no.2: Partly in the affirmative
Point no.3: Partly in the affirmative
Point no.4: As per final order for the following:
REASONS

. Point nos.1 to 4:
21 To avoid repetition I would
like to take these points together for discussion, any
how separate finding is given on each points.
On thorough examination of pleadings, oral and
documentary evidence placed by both parties it is
evident and admitted fact that plaintiff was the dealer of
poultry feeds, he used to purchased the feeds from
defendant No.1 and supplied to his customers. The
defendant No.1 agreed to supply the poultry feeds as
per terms and conditions of Ex.P-3 and also he gave
bank guarantee of defendant No.2 to the defendant
No.1 as a security for due performance of his obligation
and for payment as per Ex.P-4, 5, 6, 7, 31 and 32 from

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2004 to 2009. It is also evident and admitted fact that
the defendant No.1 agreed to pay commission PBSC-
Rs.20/-, S/G-C/P-Rs.30/- and S/G CONC Rs.40/-, for
sale of feeds, Rs.1050/- towards rent, Rs.2/- for
unloading of 70 kg and Rs.1.5 for unloading of 50 kg
and salary towards godown keeper-Rs.2,000/- as per
Ex.P-2 and Ex.P-3. There is no dispute between the
plaintiff and defendants in respect of transactions taken
place between them from January 2004 to March-2009.

22. It is specific case of the plaintiff that in the
month of October 2009 defendant No.1 supplied the
poultry feeds, but same were unsold and remained as it
is, later on it was sold out to various customers.
Thereafter only he came to know that the said feeds
sent by defendant No.1 are out dated and they became
poisoned. As a result many number of hens were died
due to consuming of poison feeds. Hence the plaintiff
examined the said deadly hens through an experts, who
gave an opinion that hens were died due to food
poisoning. Since his customers claimed compensation,
hence he brought to the notice of defendant No.1 in
respect of above said facts. Further he alleged that the
defendant No.1 without giving him to an opportunity
have invoked the bank guarantee against the terms and
conditions. Hence he constrained to file this suit for
recovery of Rs.3,18,862/- under different heads.
.
23 The defendant No.1 denied the above said
fact of the case of plaintiff. Further he contended that

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from the date of withdrawal of bank guarantee on
21/08/2008, there is no contractual obligations between
him and plaintiff and due to negligent act of the plaintiff,
he has sold out out dated poisoned feeds to his
customers. Hence he is not liable to pay the above said
amount.
.
24 In order to substantiate their respective cases
plaintiff examined his PA holder as PW-1 and got
marked 34 documents at Ex.P-1 to Ex.P-34. The
defendant o.1 got examined his Senior Accountant as
DW-1 and got marked 6 documents at Ex.D-1 to Ex.D-6.
The learned trial Judge after thorough examination of
pleadings, evidence and after hearing the arguments
came to the conclusion that plaintiff has failed to prove
the fact that defendant No.1 supplied out dated or
poisoned poultry feeds and due to consuming of the
said out dated or poisoned feeds hens were died and
answer Issue No.5 partly in the affirmative and further
he held that the evidence placed by the plaintiff is
sufficient to believe that without his knowledge bank
guarantee was invoked and he has returned unsold
feed, hence he is entitle to recover an amount of
Rs.3,33,900/- with interest at the rate of 6% from the
date of suit till its realization.
.
25 Being aggrieved by the above said judgment
and decree, defendant No.1 approached this court on
several grounds one of the ground urged in the appeal
memo is that lower court has committed an error while

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accepting the evidence of PA holder of the plaintiff who
had no personal knowledge about the contract between
the plaintiff and defendant No.1 company. In this back
ground I have thoroughly gone through the entire
evidence placed by the plaintiff and also defendant
No.1.
.
26 It is true, that plaintiff has to substantiate the
contents of his plaint by entering the witness box by
deposing on oath. At the same time there is no bar to
examine the PA holder on his behalf, but only the
condition is that the PA holder of the plaintiff had
knowledge about the case. In the instance case there is
an agreement between the plaintiff and defendant No.1
in respect of supply of poultry feeds on certain terms
and conditions i.e., Ex.P.2. Though the defendant No.1
denied the case of the plaintiff in his written statement,
but DW-1 admit the entire case of the plaintiff in respect
of supply of poultry feeds, bank guarantee, commission
for sale of poultry feeds, paying of rent towards godown,
payment of salary to the godown keeper and unloading
charges as per Ex.P-2, Ex.P-3, Ex.P-4, Ex.P-5, Ex.P-6,
Ex.P-7 and also he admits withdrawal of bank
guarantee as per Ex.P-30 and Ex.P-33. If at all DW-1
the Senior Accountant Officer of defendant No.1
disputed the above said facts, oral and documentary
evidence of plaintiff then it can be said that P.W-1 who
is the PA holder of plaintiff is not competent witness to
dispose about the terms and conditions of the contract.

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Moreover P.W-1 is not only the PA holder, he is the son
of plaintiff who has knowledge about the facts of the
case. Further in the chief examination itself he deposed
that he has knowledge about the case of the plaintiff.
Considering the evidence of PW-1 and admission given
by D.W-1 it cannot be said that P.W-1 is not a
competent person to give evidence on behalf of his PA
holder. When D.W-1 admitted the terms and conditions
of agreement in respect of supply of poultry feeds,
payment of commission, payment of rent towards
godown, payment of salary to the godown keeper,
revocation of bank guarantee, when he admits Ex,
P.2,3,4,5,6,7, it cannot be said that the evidence of
P.W-1 cannot be accepted, since he has not a party to
the transactions. So the argument advanced by the
counsel for appellant in respect of evidence of PA
holder of plaintiff cannot be accepted in view of
admission given by the D.W-1. Accordingly I answer
Point No.1 in the Negative.
.
27 As already stated above there is no dispute
between the plaintiff and defendant No.1 in respect of
supply of poultry feeds, payment of commission,
payment of rent towards godown, payment of salary to
the godown keeper. Only disputed fact is that whether
defendant No.1 supplied out dated or poisoned feeds to
the plaintiff in the month of October 2009 and due to
sale of said poisoned feeds plaintiff sustained loss.
Because the plaintiff has filed this suit for recovery of

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Rs.3,18,862/- on the ground that due to supply of
poisoned feeds he sustained loss in the business. So
entire burden is on the plaintiff to prove that defendant
No.1 supplied the poisoned feeds in the month of
October 2009. In this back ground I have thoroughly
gone through the contents of plaint. In the plaint, plaintiff
not specifically pleaded, when defendant No.1 has
supplied the poultry feeds in the month of October 2009,
how much of quantity he has supplied, how much of
bags he has sold to his customers and how much of
bags retained unsold. In para No.4 of the plaint he
simply pleaded that in the month of October 2009
defendant No.1 supplied the poultry feeds bags. The
said bags were unsold without sale. Thereafter he has
sold the said bags to his customers, later on he came to
know that the poultry feeds supplied by the defendant
No.1 are out dated or poisoned and due to
consummation of the said poultry feeds hens of his
customers expired. Accordingly P.W-1 re-produced the
above said fact in his chief examination affidavit. To
substantiate the same he got marked the opinion given
by Assistant Director of Animal hospital, Molakalmuru at
Ex.P-34. Further the plaintiff has examined one witness
as P.W-2. But the plaintiff has not examined the person
who has issued Ex.P-34. Considering the evidence of
P.W-2 and contents of Ex.P-34, the learned trial judge
rightly comes to the conclusion that the plaintiff has
utterly failed to prove that defendant No.1 supplied the
poisoned feeds, on the ground that P.W-2 not produced

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any piece of document to believe his evidence that he
has purchased the poultry feeds from plaintiff which
were supplied by the defendant no.1 and non-
examination of the person who has issued Ex.P-34. In
my opinion the pleadings of the plaintiff in respect of
supply of poisoned feeds itself is insufficient. Because if
defendant No.1 supplied the feeds in the month of
October 2009, plaintiff should have plead and placed
evidence how much of quantity defendant no.1 supplied
or how much of bags of feeds supplied, when he has
supplied, why has not sold the same for some time, how
much of bags were sold to his customers, when he has
sold, to whom he has sold and how much of bags
remained in the godown without sale. So in absence of
above said specific facts and evidence it cannot be said
that defendant No.1 has supplied the poisoned poultry
feeds to the plaintiff and due to consuming of the said
poisoned feeds hens of the customers of the plaintiff
died.
.
28 But D.W-1 in cross-examination admits that on
12/04/2013 plaintiff returned the alleged poisoned feeds
worth of Rs.1,55,440/- as per Ex.P-10. Ex.P-10 is the
delivery challan dt.12/04/2010 issued by Chief
Executive of Pranav Agro Industries Limited, Bangalore
to Pranav Agro Industries Limited for sending 100 bags
of feeds worth of Rs.1,55,440/-. Considering the
admission of D.W-1 coupled with contents of Ex.P-10,
the learned trial judge comes to the conclusion that

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plaintiff has returned unsold feeds worth of
Rs.1,55,440/- under Ex.P-10. Further the learned trial
Judge on the basis of Ex.P-30 rightly comes to the
conclusion that defendant No.2 the State Bank of
Mysore invoked by M/s Pranav Agro Industries Ltd., and
the amount was paid to them on 24/02/2010 by way of
demand draft and came to the conclusion that contrary
to the terms and conditions of the agreement defendant
No.2 withdraw the bank guarantee, since defendant
No.1 invoked and the amount of Rs.1,40,000/- was paid
to the defendant No.1 by way of demand draft. Further
the learned trial judge assigned the reasons that
defendant No.1 has not pleaded and placed evidence
how much of amount plaintiff has to pay and for how
much of amount he has invoked the bank guarantee
and came to the conclusion that defendant No.1 is liable
to pay Rs.1,40,000/- towards bank guarantee,
Rs.12,000/- towards fright charges, Rs.29,900/- towards
godown rent and Rs.52,000/- towards salary of godown
keeper. When defendant no.1 and 2 without the
knowledge of plaintiff withdraw the bank guarantee and
when D.W.1 admits that plaintiff returned unsold seed
bags, defendant no.1 is liable to pay the godown rent,
salary of godown keeper till the period of cancellation of
agreement or revocation of bank guarantee. Accordingly
the learned trial judge rightly came to the conclusion
that plaintiff is entitle for Rs.29,900/-, towards rent of the
godown and Rs.52,000/- towards salary of godown
keeper. But he failed to appreciate Ex.P-30 and Ex.P-10

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while determining the amount of bank guarantee and
freight charges respectively.
.
29 Because in Ex.P-30 defendant No.2
specifically stated that they have issued a bank
guarantee for Rs.1,20,000/- on 04/08/2004 in favour of
defendant No.1 on behalf of plaintiff and same was
renewed from time to time upto 25/03/2010 and further it
is stated that the same was invoked by defendant No.1
and amount was paid to them on 24/02/2010 by way of
demand draft. In Ex.P-30 defendant No.2 not stated
they have paid Rs.1,40,000/- or they have issued a
bank guarantee of Rs.1,40,000/-. Though Ex.P-7 the
letter of defendant No.2 goes to show that the
guarantee issued for Rs.1,40,000/- for the period of
2007-08, but in Ex.P-30 defendant No.2 stated that they
have issued a bank guarantee of Rs.1,20,000/- on
04/08/2004 and same was renewed regularly upto
25/03/2010 and same was invoked by defendant No.1
and paid the amount to the defendant No.1 on
24/02/2010. Considering the contents of Ex.P-30 the
learned trial judge ought to have state that plaintiff is
entitle for Rs.1,20,000/- towards bank guarantee. But in
the judgment, though he relied Ex.P-30 but wrongly
comes to the conclusion that plaintiff is entitle for
Rs.1,40,000/- towards bank guarantee. In view of Ex.P-
30 which is produced by the plaintiff, I come to the
conclusion that the lower court has committed a mistake

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while appreciating Ex.P-30. In fact plaintiff is entitle for
Rs.1,20,000/- towards bank guarantee as per Ex.P-30.
.
30 It is further noticed that the learned trial judge
while answering Issue No.6 partly in affirmative held that
plaintiff is entitle for Rs.12,000/- towards fright charges
on the basis of Ex.P-10, which is admitted by D.W-1 in
the cross-examination. As already stated above Ex.P-9
and Ex.P-10 are not disputed by D.W-1. Ex.P-9 is bill
issued by Murthy Transport Company towards fright
charges for supply of 100 bags of poultry feeds for
Rs.12,000/-. Ex.P-10 is the delivery challan goes to
show that the total Lorry hiring charges is Rs.12,000/-
and same has to pay. So from the contents of Ex.P-9
and Ex.P-10 it cannot be said that the plaintiff has paid
the fright charges of Rs.12,000/- for having send unsold
100 bags. If the plaintiff has paid Rs.12,000/- for hiring
charges, he is entitle for the same. Whereas Ex.P-9 and
Ex.P-10 falsify the case of the plaintiff for having paid
Rs.12,000/- towards fright charges. The very contents of
Ex.P-9 and Ex.P-10 falsify the case of the plaintiff in
respect of claiming of fright charges of Rs.12,000/- for
sending of unsold poultry seeds. It appears that learned
trial judge lost his sight towards the contents of Ex.P-9
and Ex.P-10 and wrongly comes to the conclusion that
plaintiff has paid Rs.12,000/- towards fright charges.
From the contents of Ex.P-9 and Ex.P-10 I comes to the
conclusion that plaintiff has not paid Rs.12,000/-
towards fright charges as pleaded in the plaint. For the

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aforesaid reasons I came to the conclusion that the
findings given by lower court on Issues No.5 and 6 in
respect of claim of bank guarantee of Rs.1,40,000/- and
Rs.12,000/- towards fright charges is not correct, but
respect of other facts, findings given by the lower court
is correct and proper in accordance with the evidence
on record.
.
31 So, on over all appreciation of entire oral and
documentary evidence placed by the plaintiff and
defendant No.1 it is evident that the lower court properly
appreciating the evidence on record and rightly decreed
the suit of the plaintiff. But while appreciating the
contents of Ex.P-30 and Ex.P-10 it has lost its side and
came to the conclusion that plaintiff is entitle for
Rs.1,40,000/- instead of Rs.1,20,000/- and Rs.12,000/-
towards fright charges. In fact plaintiff is entitle for
Rs.1,20,000/- towards bank guarantee and he is not
entitle for Rs.1,40,000/-. Like so, he is not entitle for
Rs.12,000/- towards fright charges. Under the
circumstances I come to the conclusion that plaintiff is
entitle for Rs.2,01,900/- instead of Rs.2,33,900/- as
decreed by the lower court. For the aforesaid reasons
the interference of this court in respect of claim of bank
guarantee and claim of fright charges interference of
this court is necessary. In respect of other findings of
the lower court there is no hesitation to confirm
judgment and decree of lower court. Accordingly, the
judgment and decree is modified to the extent of

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2,10,900/ instead of 2,33,900/ to meet the ends of
justice. Hence, I answer point no.3 partly in the
affirmative and proceed to pass the following:
ORDER

Appeal filed appellant u/s.41 rule 1 of CPC is
hereby allowed in part as under.
Judgment and decree of O.S.no.84/2011
dt.16.12.2013 passed by Civil Judge and JMFC,
Molakalmuru decreeing the suit of the plaintiff that
plaintiff is entitle to recovery of Rs.2,33,900/- with
interest at the rate of 6% p.a from the date of suit till its
realization is modified to the extent of Rs.2,01,900/
instead of Rs.2,33,900/-.
Draw decree accordingly.”

7. A perusal of the impugned judgment and decree of the
First Appellate court will clearly indicate that the finding recorded by
st
it as regards the liability of the 1 defendant towards the plaintiff is
based on legal and acceptable evidence; so also, the First
Appellate court upheld the claim of the plaintiff towards godown
rent based on pleadings and evidence of the parties, even if the
lease deed at Ex.P2 was excluded from consideration on the
ground that it was insufficiently stamped. Further, the First
Appellate Court was also justified in upholding the claim of the

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plaintiff for payment of salary to the godown people on the basis of
the pleadings and evidence on record. So also, both the Courts
also took into account the material on record which established that
st
without reference to and without intimating the plaintiff, the 1
defendant was not entitled to unilaterally invoke the Bank
st
Guarantee furnished by the plaintiff and consequently, the 1
defendant was liable to pay the aforesaid sum of Rs.1,20,000/- to
the plaintiff for illegal invocation of the Bank Guarantee, especially
st
when the 1 defendant had not established its claim against the
plaintiff in this regard. Under these circumstances, I am of the
considered opinion that both the Courts were fully justified in
recording findings of fact against the appellant and substantial
questions of law deserve to be answered accordingly against the
appellant and as such, I do not find any merit in the appeal which
accordingly is liable to be dismissed.

8. In the result, I pass the following:-
ORDER
(i) Appeal is hereby dismissed.

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(ii) The amount deposited by the appellant in the present
appeal and withdrawn by the respondents would be subject to the
orders of the Bombay High Court in Co.P.No.256/2013 and the
present order would be without prejudice to the rights and
contentions of the parties in the said proceedings before the
Bombay High Court.

Sd/-
(S.R.KRISHNA KUMAR)
JUDGE

Srl.