JUDGEMENT
ANIL KSHETARPAL,J. -
(1.)The hearing of the case was held through video conferencing on account of restricted functioning of the Courts.
CM-2284-C-2021
For the reasons stated in the application, delay of 5 days in re-filing the appeal is condoned.
CM stands allowed.
CM-2285-C-2021
For the reasons stated in the application, delay of 92 days in filing the appeal is condoned.
CM stands allowed.
CM-2286-C-2021
Allowed as prayed for.
Main case
1. Defendant no. 2 and 3 have filed the present Regular Second Appeal against the concurrent finding of facts arrived at by the courts below while decreeing the suit for recovery of Rs.17,94,364/-. The point which arises for consideration is whether while hearing the Regular Second Appeal, it would be appropriate to permit a party to the suit to take up a entirely new point, which is based on appreciation of pleadings and evidence, for the first time.
(2.)Some facts are required to be noticed. The plaintiff-respondent no. 1 filed a suit for recovery of Rs.38,50,000/- against defendant no. 1 to 4. Defendant no.1 is a Private Limited Company whereas defendant no.2 and 3 are its Managing Director and Chairman respectively. The defendants appointed the plaintiff to be its clearing and forwarding agent for the paddy belt of Haryana. The contract between the plaintiff and the defendants was signed on 01.04.2008. The plaintiff, in accordance with the agreement, deposited the security amount of Rs.10,00,000/-. As per agreement, it was entitled to commission at the rate of 2.5% of the total turnover made from its godown. The total turnover from its godown was Rs.3,50,00,000/-. Hence, it is entitled to Rs.8,75,000/- on that account. The certain other amount was also due which inspite of demand being made, has not been paid.
(3.)Defendant no.1 to 3 filed a joint written statement contesting the suit. It was pleaded that there was no contract between the parties and the plaintiff did not facilitate the sale of seeds as claimed. The trial court on appreciation of evidence decreed the suit to the extent of Rs. 17,94,364/- with pendente lite and future interest at the rate of 8% per annum till realization of the decretal amount. Defendant no. 1 to 3 filed an appeal. The plaintiff also filed a cross appeal. The learned First Appellate Court on re-appreciation of evidence found no error in the judgment passed by the trial court. Consequently both the appeals were ordered to be dismissed.
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