INSTITUTE OF LAW,

NIRMA UNIVERSITY

SEMESTER VI

B.A LLB (Hons.)

SUBMISSION IN FURTHERANCE OF THE PROJECT WORK OF

Code of Civil Procedure and Limitation Act II (2BL544)

DRAFTING OF SECOND APPEAL

For the academic year 2022-

23

SUBMITTED TO:

DR. ANAND KUMAR SHINDE

SUBMITTED BY:

MANAN SHARMA (20BAL196)

BEFORE THE HON’BLE DISTRICT COURT OF
INDORE
F.A. No. : / 2022
APPELLANT : M/s SIMCO PHARMA, UJJAIN
(Defendant before Through its proprietor,
the learned Court Shri Mayank Dhing,
below.) 30, Ravishankar Nagar,Freeganj, Ujjain (M.P.)

VERSUS

RESPONDENT: M/s HARIYANI TRADERS,

(Plaintiff before
the learned Court
below.)
Through its proprietor,
Shri Jai Hariyani,
142, Dawa Bazar, Ground Floor, 13-
14, R.N.T. Marg,
Indore (M.P.)

IN THE MATTER OF SECOND APPEAL UNDER SECTION 100

OF CODE OF CIVIL PROCEDURE,1908

To,
THE HON’BLE CHIEF JUSTICE & OTHER COMPANION JUDGES
OF THE HIGH COURT OF JUDICATURE MAY IT PLEASE YOUR
LORDSHIPS:
Being aggrieved by the impugned judgement and order dated
31.10.2021 passed in the C.O.S. No. 15-B/2010 by the learned
XII Additional District Judge, Indore the present appellant
prefers this appeal against the same on the following grounds
inter alia:
A. FACTS OF THE CASE :

That, the appellant is a proprietorship firm dealing in the

business of medicines in the district Ujjain and the
respondent is also a proprietorship firm dealing in the
same business in Indore. The present appeal on behalf of
the appellant firm has been preferred by its proprietor Mr.
Mayank Dhing through his Attorney Shri Santosh Dhing.

8. That, respondent/plaintiff had filed a Suit for Recovery

before the learned Additional District Judge, Indore on
16.06.2013 and the same was registered as 17-B/2013 (15-
B/2010). Aforesaid suit was valued at rupees 3, 78,000/-
(Rupees Three Lacs Seventy Eight Thousand Only) and
court fees of rupees 45,360/- was also deposited by the
respondent.

9. That, in the said suit it was alleged by the respondent that

the respondent firm, being the wholesaler and supplier of
medicines, have supplied medicines under certain
conditions to the appellant on credit basis. It was further
alleged that against those medicines an amount of rupees 3,
04,787/- was outstanding and recoverable from the
defendant/appellant.

10. That, apart from the aforementioned claim the respondent

furthermore claimed against the appellant an amount of
rupees 72,313/- as interest at the rate of 15% per annum to
 be calculated from the date of last payment i.e. 14.11.2011.

11. That, it was alleged by the respondent that for the

abovementioned outstanding amount, a notice was also
sent to the appellant on 25.03.2013 but even after that the
appellant have not deposited any amount to the
respondent.
12. That, the respondent in its suit has claimed that a letter
dated 28.09.2012 bearing no. 2704 was sent by an Income
Tax Officer, Circle-2 seeking details of transaction made
between the appellant and the respondent categorically
submitted by the details of outstanding amount and
transactions between the respondent and appellant to the
concern Income Tax Officer.

13. That, the appellant categorically submitted its written

statement and denied the allegations made by the
respondent. It is submitted by the appellant before the
learned court below that that there is no outstanding
amount due towards the medicines supplied by the
respondent as certain amount of medicines were sold out
by the appellant and the entire payment of the same was
paid to the respondent and the rest of medicines were
returned to the respondent through “New Ujjain Golden
Transport Company” vide its consignment number 1301
dated 20.02.2011. Receipt of which was duly marked at the
back of consignment slip marked as Exhibit D-3 submitted
before the learned lower court. It is pertinent to mention
here that despite the availability of the aforesaid
document on record, the learned lower court completely
ignored the said document and erroneously passed the
impugned judgement and decree dated 31.10.2021 in
favour of the respondent. A copy of impugned judgement
and decree is filed herewith and marked as Annexure A.
GROUNDS OF APPEAL
11. Because the learned court below has erred in decreeing the
suit in favour of the respondent without appreciating the
documents available on record specifically Exhibit D-3,
wherein the balance stock of medicine was returned to the
respondent and the same was duly received by the
respondent on 22.12.2011, which has resulted in
miscarriage of justice.

12. Because the learned court below has failed to consider the
evidence available on record in a judicious manner.

13. Because the findings arrived by the learned lower court are
not supported by the evidence available on record and
the necessary issues of law and fact have not been framed
and answered by the learned court below.

14. Because the learned lower court was at manifest error in

holding that there is an outstanding amount due towards
the appellant amounting to rupees 3, 04,787/- on account
of purchased medicines. The learned court below also erred
by not appreciating the endorsement made by the
respondent on the back side of consignment slip Exhibit D-
3 which was duly signed by the respondent which clearly
reflects that the respondent has received the entire stock of
medicines which remained unsold with the appellant.

15. Because the learned court below has erred in law by not
appreciating the fact that the document on which the entire
 case of the respondent was based (Exhibit P-14) was
submitted without any seal of the respondent firm and
such document cannot be accepted as an evidence in the
light of Section 65-B of Indian Evidence Act.
16. Because, the learned court below further erred in law in not
appreciating that the document Exhibit P-10 was
submitted by the respondent after a lapse of considerable
time and not along with the plaint itself which clearly
shows that the document Exhibit P-10 is a forged
document and has been fabricated as per the requirements
of the respondent and is also an afterthought.
17. Because the learned court below also erred in law by not
appreciating that the document Exhibit P- 14 is completely
different with Exhibit P-1, P-2, P-3 and P-4 which clearly
shows that the document Exhibit P-14 is also a forged
document on the basis of which the respondent has
concocted a story with a malafide to usurp few extra
pennies from the pocket of the appellant.
18. Because the learned lower court was at manifest error in
not appreciating the evidence brought on record by the
appellant and by not considering the fact that the balance
stock remained unsold with the appellant was returned to
the respondent vide Exhibit D-3 and the same was received
and duly acknowledge by the respondent on 22.12.2011
but the learned lower court has completely ignored this fact
which has resulted into miscarriage of justice.
19. Because the learned lower court has erred in law by
deciding that the respondent is entitled to the amount
 decreedvide judgement dated 31.10.2021 and further erred
in law by not considering that the plaintiff has to prove its
own case, while in the present case the document
submitted by the plaintiff itself were contrary to each other.
The learned lower court committed serious error in not
appreciating the document Exhibit D-3 whereby the entire
balance stock was return to the respondent and there was
no outstanding due towards the appellant on the date of
filing of the suit.

That, an affidavit in support of the present appeal has been filed

herewith.
PRAYER
In view thereof it is humbly and most respectfully prays that the
Hon’ble Court may be pleased to:
1. Allow the appeal.

2. Dismiss the suit of the plaintiff/respondent by

setting aside the judgment of the trial Court.
3. Any other order or direction which is favourable to the
Appellant in the facts and circumstances of the case may
kindly be granted to the appellant.

Dated: 01/09/2022
COUNSEL FOR APPELLANT
 AFFIDAVIT IN SUPPORT OF APPEAL

I, the deponent solemnly state on oath as under:

1. That,
My name : Santosh Dhing
Father's Name : Shri Samrathmal Ji Dhing

Age : About 54 years,

Occupation : Business
Address : 30, Ravi Shankar Nagar,

Freeganj, Ujjain (MP)

2. That, I am Power of Attorney holder of the proprietor of

appellant firm and after being authorized have presented
this appeal on behalf of the appellant firm. I am fully
conversant with the facts and circumstances of the case.

3. That, I have read the appeal and understood its contents. I

say on oath that all the facts stated in the appeal are true
from my knowledge, nothing is concealed and nothing
untrue is stated therein.

INDORE
DATED : DEPONENT
 VERIFICATION

I, the above name deponent, solemnly affirm and declare on

oath that what is stated above in
paragraph no. 1 to 3 are true from my personal knowledge
and nothing is concealed and nothing untrue is stated
therein.Sworn by me today on day of
2022 at Indore.

INDORE
DATED : DEPONENT: