AS/2308/1993 of K.SRINIVASA RAO Vs POPULAR SHOE MART BY NARASIMHA RAO on 12 December 1996

JUDGMENT:-

The first defendant in O.S.No.63 of 1980 on the file of the IIAdditional Subordinate Judge, Kakinada, is the appellant herein.

2. The suit was filed by the plaintiff contending that the firstdefendant is not the lessee in reality and he was only a benami for theplaintiff and he has been doing business on behalf of the plaintiff andtherefore, the first defendant is liable to account for the stock receivedand should hand over the stock and furniture. The first defendantcontended that he is the real person, who is doing business and isentitled for doing business and he is not liable to view the value of thestock. The first defendant contended that he has got the leaseindividually with P.Krishna Murthy, which was later purchased by thesecond defendant and the second defendant also supported the claimof the first defendant. Apprehending interference with the business, thedefendants also filed O.S.No.23 of 1981. After trial, a commonjudgment was delivered and O.S.No.23 of 1981 was decreed andO.S.No.63 of 1980, which is subject matter of the present appeal, wasdismissed by the judgment dated 27.11.1985 and as against that theplaintiff has preferred the appeal to this Court and this Court held thatthe termination of tenancy by the first defendant is void and the plaintiffis entitled for the damages. The first defendant is liable to renderaccount to the plaintiff. Consequently, O.S.No.63 of 1980 wasremanded to the Court below and after remand, the following issueswere framed:

1) What is the period during which the accounts between theparties are true to be settled?parties are true to be settled?

2) Who has to pay to whom and in what amount afterdetermination of accounts?determination of accounts?

3. The evidence was also let-in after remand and the Court belowafter considering the value of the goods supplied and the amountspaid and also the deposit of Rs.45,000/- made by the first defendant,decreed the suit of the plaintiff for a sum of Rs.24,999.70 ps withinterest at 12% P.A. Challenging the decree, the present appeal is filedby the first defendant.

4. The points that arise for consideration are:

1. Whether the first defendant is not liable to pay the amount?

2. Whether the relief granted by the Court below is within theclaim made in the suit?claim made in the suit?

5. POINTS:

Though there is a dispute about the tenancy of the premises asto whether it was taken by the first defendant in his individual capacityor on behalf of the plaintiff, the fact remains that the purpose of takingthe premises on lease is for running of the footwear shop and thestocks are to be manufactured and supplied by the plaintiff and the firstdefendant will be doing business in sale of such footwear. Therefore,in view of the termination of the agency, which was found to be notvalid, by this Court, the second question would be about the liability ofthe first defendant to pay the amounts due to the plaintiff or to deliverthe stocks, which were available with him after the agreement betweenthe parties was ceased. The learned Subordinate Judge has taken intoconsideration the debts when the goods were supplied and when partof them were returned and the value thereof. Part of the paymentsmade by the first defendant were also taken into consideration andgiven credit apart from the deposit of Rs.45,000/-.

6. The learned counsel for the appellant claims that in the plaintonly a relief for delivery of the stocks was made and there is no claimfor payment of the money and consequently, the relief granted by theCourt below is beyond the scope of the suit.

7. It is to be noted that whenever a claim for movable property ismade, the party will be entitled to deliver of the movable propertywhich is available and if not to the value of the movable property. It isthe case basing on the claim of the appellant that he has got stocks ofthe goods supplied by the plaintiff and that he is willing to deliver thesame. Evidently, the stocks received by him must have been sold andrealized the money. Consequently, it can only be a claim for moneywhich has to be ordered by the trial Court. The trial Court after makingan exercise or taking into consideration the several documents andaccounts between the parties has arrived at the figure of Rs.24,999.70ps and there seems to be no substantial grievance about the amountdetermined by the Court below. An additional ground was sought tobe canvassed contending that the Court below has not granted intereston the deposit of Rs.45,000/- though given credit in the accounts. TheCourt has considered this aspect and found that under Ex.A.6agreement the deposit amount does not carry any interest. Therefore,when the first defendant has contracted to the same he cannot claimthat he is entitled for the interest. Consequently, I find no merits in theappeal.

Accordingly, appeal is dismissed. No costs. Miscellaneouspetitions, if any, pending in this appeal shall stand closed.

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JUSTICE N.R.L. NAGESWARA RAODate:30.08.2012INL