R.S.A.No. 3536 of 2009 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 3536 of 2009 (O&M)
Date of decision: 5.10. 2009
The Bhogpur Cooperative Sugar Mills Ltd. Bhogpur
......Appellant
Versus
Vijay Kumar Sondhi
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Rahul Sharma, Advocate,
for the appellant.
****
SABINA, J.
Plaintiff Vijay Kumar Sondhi filed a suit for recovery of Rs.
96344/-, which was decreed with costs for recovery of Rs.62,561/-
along with interest @ 12% per annum by the Additional Civil Judge
(Sr.Divn.), Phagwara vide judgment and decree dated 24.8.2007. In
appeal, the said judgment and decree were upheld by the Additional
District Judge, Kapurthala vide judgment and decree dated
22.12.2008. Hence, the present appeal by the defendant.
R.S.A.No. 3536 of 2009 (O&M) 2
Brief facts of the case, as noticed by the lower appellate
Court in para Nos. 2 to 4 of its judgment, are as under:-
“2. The plaintiff has filed the suit against the
defendant for recovery of Rs.96,344/- against defendant
the Bhogpur Cooperative Sugar Mills Ltd. Bhogpur,
District Jalandhar, Punjab.
3. It is pleaded by the plaintiff that he is carrying
on his business under the name and style of M/s
V.S.Industries, G.T.Road, Phagwara, and deals in the
supply of lime. In reply to the quotations submitted by
the plaintiff, the Punjab State Federation of Cooperative
Sugar Mills Limited, Chandigarh, placed Order
No.PSF/Lime/A-2/97/74-75 dated 21.10.1997 for the
supply of 440 M.T.Lime at the rate of Rs.2150/- M.T. to
the defendant. The said order was also confirmed by
the defendant and in response to the said order, the
plaintiff supplied quick lime to the defendants vide the
following bills:-
Bill No.& Date Amount
1301/1.4.1997 Rs.15,147/-
1303/5.4.1997 Rs.17,523/-
1306/10.4.1997 Rs.12,997/-
1313/17.4.1997 Rs.16,318/-
1315/23.4.1997 Rs.17,318/-
1318/27.4.1997 Rs.17,738/-
R.S.A.No. 3536 of 2009 (O&M) 3
1347/5.11.1997 Rs.31,874/-
1348/12.11.1997 Rs.33,035/-
1351/19.11.1997 Rs.34,325/-
1356/4.12.1997 Rs.33,475/-
1357/12.12.1997 Rs.34,884/-
1361/23.12.1997 Rs.34,862/-
1364/30.12.1997 Rs.35,120/-
1366/8.1.1998 Rs.35,357/-
1369/17.1.1998 Rs.36,926/-
1375/27.1.1998 Rs.34,722/-
1376/31.1.1998 Rs.36,217/-
The total supply of lime was worth Rs.6,80,488-35 paise.
Out of the amount of goods supplied, the defendant made
the payment of Rs.6,17,810/- which amount was
appropriated towards the previous outstanding balance at
the close of financial year 1996-97 i.e. Rs.2,02,650-35
paise and the remaining amount towards the above
stated bills and in this way, balance amount of
Rs.62,678/- is due to be paid by the defendant to the
plaintiff. The last payment was made on 4.2.1998 by the
defendant through Bank Draft No.809384. It was
stipulated that if the payment of bills amount is not made
within 15 days, then an interest at the rate of 24% per
annum would be chargeable. However, the defendant did
not make the payment as agreed, rather declared that
the lime supplied by the plaintiff is not according to the
specifications. It was a just lame excuse made by the
R.S.A.No. 3536 of 2009 (O&M) 4defendant. In fact, the defendant was interested to
purchase the lime from other party for wilful gain. After
declaring the goods as substandard, the defendant
purchased the lime from other companies at higher rate
and in this way, they deprived the plaintiff from supplying
the goods further to them and the defendants also caused
loss to the plaintiff. In fact, the plaintiff had not only
supplied the quick lime to the defendants, but he had
supplied the same to various concerns and they never
raised any objection. On repeated requests made by the
plaintiff, on 19.5.1998, the defendant issued a cheque
dated 19.5.1998 for Rs.117-10 paise to the plaintiff and
as per their own calculations, they deducted a sum of Rs.
56,083-15 paise, illegally and unlawfully. Then the
plaintiff protested against this illegal deduction and
referred the matter to the Managing Director, Punjab
State Federation of Cooperative Sugar Mills Limited,
Chandigarh, requesting him for the release of balance
amount, but they also did not give any reply to the letters
of the plaintiff. Hence, the present suit for recovery of
Rs.96,344/- including interest amount to Rs.33,783/- at
the rate of 24% per annum.
4. Notice of the suit was given to the defendant.
Defendant appeared and filed the written statement by
R.S.A.No. 3536 of 2009 (O&M) 5taking preliminary objections that the suit is barred by
limitations; that the Civil Court has no jurisdiction to
entertain and try this suit, which is barred by Arbitration
Law; that the suit is bad for non-joinder of necessary
parties i.e. Punjab State Federation of Cooperative Sugar
Mills Limited, Chandigarh; that the plaintiff is estopped
from filing the present suit by his own act and conduct;
that the plaintiff has not come to the Court with clean
hands and that the suit of the plaintiff is not maintainable
in the present form. Upon merits, it has been pleaded
that the Sugarfed, Punjab had placed an order
No.PSF/Lime/A-2/97/74-75 dated 21.10.1997 for the
supply of 440 M.T. Lime at the rate of Rs.2,130/- per M.T.
to the defendant, during the crushing season 1997-98
only. Since the lime supplied by the plaintiff was not as
per the specifications of the purchase order, resultantly,
the plaintiff was informed telegraphically as well as by
post, a number of times to improve the quality of the lime
as the same was of the inferior quality and was not as per
the specifications, but the plaintiff did not pay any heed to
the written requests made by the defendant. In this way,
the defendant had to purchase the lime at higher rate
from the market in order to fulfill their requirement. The
lime supplied by the plaintiff was also got tested and it
R.S.A.No. 3536 of 2009 (O&M) 6was found below the specifications, as such, the
defendant was well within their right to deduct the amount
as per Clause 9 of the Purchase Order. The plaintiff has
already settled the accounts with the defendants on
19.5.1998 after receiving a cheque for Rs. 117-10 paise.
Hence, no amount as prayed for by the plaintiff is due
from the defendant. Rest of the averments have been
denied. It has been prayed that the suit of the plaintiff be
dismissed with costs.”
On the pleadings of the parties, following issues were
framed by the trial Court:-
“1. Whether the plaintiff has settled account with
the defendant and no amount is due from the defendant
under the bills mentioned in para No.3 of the plaint? OPD
2. Whether the plaintiff is entitled to the recovery
of suit amount along with interest as prayed ? OPP
3. Whether this Court has no jurisdiction to
entertain and try the present suit? OPD
4. Whether the suit is barred by limitation? OPD
5. Whether the suit is barred by law of
arbitration? OPD
6. Whether the suit is bad for mis-joinder and
non-joinder of necessary parties? OPD
7. Relief. “
R.S.A.No. 3536 of 2009 (O&M) 7
After hearing learned counsel for the appellant, I am of
the opinion that the present appeal is devoid of any merit and
deserves to be dismissed.
Admittedly, the defendant had made purchase of lime
from the plaintiff vide purchase order dated 21.10.1997, Ex.D-2. The
defendant accepted the delivery of lime from the plaintiff. Out of the
total sale consideration of Rs.6,80,488-35 paise, defendant made
payment of Rs.6,17,810/- to the plaintiff. Since the payment
regarding the remaining amount was not made to the plaintiff, the
plaintiff filed the present suit for recovery of the balance amount. The
case of the defendant was that the lime supplied qua the remaining
amount was of substandard quality and hence, it had settled the
accounts with the plaintiff after deducting the amount regarding
substandard lime, while making the full and final payment to him.
The defendant placed reliance on report of the Chemical Analyst to
the effect that the lime supplied by the plaintiff was of substandard
quality. However, the Chemical Analyst, who had prepared the
report, was not examined by the defendant to prove the said report.
In these circumstances, the learned Additional District Judge rightly
held that no reliance could be placed on the report of the Chemical
Analyst.
Since the appellant had contested the suit and had not
asked for reference of the case to Arbitrator before filing the written
statement, the argument raised by the learned counsel that the
R.S.A.No. 3536 of 2009 (O&M) 8
dispute should have been referred to Arbitrator is without any force.
Both the Courts below, after appreciating the evidence on record,
held that since the lime in question had been used/utilized by the
defendant, the defendant was liable to make payment to the plaintiff
regarding the lime supplied to it. The last payment was made by the
defendant on 9.5.1998. Hence, the suit filed by the plaintiff was within
limitation.
No substantial question of law arises in this regular
second appeal. Accordingly, the same is dismissed.
(SABINA)
JUDGE
October 05, 2009
anita