Gurdev Singh, J.@mdashThis second appeal by the Plaintiff/Appellant-Nisha Maheshwari is directed against the judgment and decree dated 10.12.2008 passed by the Additional District Judge, Karnal, vide which the first appeal filed by her against the judgment and decree dated 26.7.2004 passed by the Civil Judge (Junior Division), Karnal, dismissing her suit for the recovery of a sum of Rs. 23,36,211.78 paise against the Respondents/Defendants, was dismissed.
2. The case of the Plaintiff, as made out from the plaint, is that the Defendant-firm called tenders, vide letter dated 26.9.1991, for haulage of crushed stones from Tejewala Crusher site to the work at site between 74.800 to 130 kms. Her offer, in response to the said tender, was accepted and thereafter an agreement was executed between her and the Respondents company. In order to execute the work allotted in terms of the agreement, she engaged the trucks of M/s Maheshwari Transport Company, to whom she was to pay the expenses for the carriage. For the work so executed by her, as per the record of the Defendants, a sum of Rs. 9,89,131.62 paise was due to her as on 24.12.1994 and on the basis of the supplementary bills, details of which are given in the plaint, another sum of Rs. 1,02,900.12 paise became due. On the total amount, she was entitled to interest @ 10%, which comes to Rs. 4,25,000/-.
3. These contentions made in the plaint were repelled by the Defendants in their written statement They pleaded therein that, in fact, the tender was submitted by M/s Mahehswari Transport Company, a partnership firm, which was accepted. That firm was constituted with 8 partners on 3.12.1991 and those partners executed a power of attorney in favour of the present Plaintiff. The supplementary bills, so stated in the plaint, have already been accounted for and included in the account of the said firm. A sum of Rs. 3,01,245 stands deducted as security. A letter dated 18.9.1983 was received from the side of the said firm stating that some dispute has arisen amongst their partners and it was requested that the work order be changed in the name of M/s Maheshwari Transport Company, alongwith security deposit. Letter dated 1.9.1993 was written to M/s Maheshwari Transport Company to submit no objection certificate from all the partners of the alleged defunct company, together with attested copy of the new partnership deed. That requirement was never complied with.
4. Thereafter, three partners of the firm made a request that no payment be released in favour of the transport company, on account of their inter-se dispute. On account of the abandoning of the work by the transport company, they incurred loss of Rs. 1 lakh per day because of idling of their plants and machinery, till alternate arrangement was made. Thus, they incurred a total loss of Rs. 20 lakhs, which is to be recovered from the said firm as liquidated damages.
5. In the replication to the written statement, the Plaintiff denied the contentions raised therein and reiterated her averments as made in the plaint.
6. The following issues were framed by the trial court:
1. Whether Plaintiff is entitled to recover a sum of Rs. 23,36,211.78 alongwith costs and interest pendente lite and future at the rate of 10% P.A. from the Defendants OPP
2. Whether suit is not maintainable in the present form ? OPD
3. Whether suit is bad for non-joinder of necessary parties ? OPD 4. Whether Plaintiff is estopped to file the present suit by her own conduct ? OPD
5. Whether Plaintiff is liable to affix the court fee ? OPD
6. Whether suit is barred by the provisions of Section 69 of the Partnership Act ? OPD
7. Relief.
7. On the basis of the evidence produced by both the sides, the trial court decided issues No. 1 to 4 against the Plaintiff and issues No. 5 and 6 in her favour and resultantly, dismissed the suit. As already stated above, the appeal preferred against that judgment and decree was dismissed by the first appellate court.
8. I have heard learned Counsel for the parties.
9. It has been submitted by the learned Counsel for the Plaintiff/Appellant that the Plaintiff was competent to maintain the suit in her own name even if the contract was entered into between the firm of which she was one of the partners, as all other partners had executed a power of attorney in her favour. He placed reliance on the judgment of Hon''ble Supreme Court in
10. The first submission of the learned Counsel for the Plaintiff relates to the procedure. The suits to be filed by firms are being governed by Order XXX of the Code of Civil Procedure. In view of the ruling cited by the learned Counsel for the Appellant, it may be said that the Plaintiff could have filed the suit in her own name instead of filing the suit in the name of the firm or describing herself as partner of the firm. However, I do not find any merit in the submission of the learned Counsel so far as the substantive rights of the Plaintiff are concerned. Admittedly, the contract was never entered into by the Plaintiff with the Defendants in her personal capacity. It is pertinent to note that in the plaint itself the Plaintiff never contended that mere was any privity of contract between the firm (M/s Maheshwari Transport Company) and the Defendants. She has specifically pleaded that in fact that contract was between her and the Defendant and that she further availed the services of the said firm for the purpose of transportation of the material at the site. It cannot be said that any substantial question of law arises in the present appeal. When such is the position, it cannot be said that this second appeal lies. The appeal is dismissed accordingly.
