{"id":121247,"date":"2010-04-26T00:00:00","date_gmt":"2010-04-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bihar-air-products-ltd-vs-andhra-oxygen-p-ltd-anr-on-26-april-2010"},"modified":"2016-10-07T21:27:53","modified_gmt":"2016-10-07T15:57:53","slug":"bihar-air-products-ltd-vs-andhra-oxygen-p-ltd-anr-on-26-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bihar-air-products-ltd-vs-andhra-oxygen-p-ltd-anr-on-26-april-2010","title":{"rendered":"Bihar Air Products Ltd. vs Andhra Oxygen P.Ltd.& Anr. on 26 April, 2010"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
Bihar Air Products Ltd. vs Andhra Oxygen P.Ltd.& Anr. on 26 April, 2010<\/div>\n
                            F. A. No. 1 of 2000 ( R)\n                                   ----\nAgainst the judgment and decree dated 14.10.1999 passed by Shri S. P. Singh, Sub\nJudge-II, Saraikela in Money Suit No. 2\/95\/S.R.1\/97.\n                                           ---\nBihar Air Products Limited, Adityapur Industrial Area, Phase-V ..... Appellant.\n                     -Versus-\n1. Andhra Oxygen Pvt. Ltd.\n2. Asiatic Oxygen Ltd.               .... Respondents.\n                             --\nFor the Appellant            : Mr. Kumar Vimal, Adv.\nFor the Respondents          : Mr. Pradeep Modi, Adv.\n                             --\n                              PRESENT\n              HON'BLE MR. JUSTICE PRADEEP KUMAR\nC.A.V.ON. 9.4.2010                        PRONOUNCED ON               26\/4\/2010\n\n\nPradeep Kumar,J             The first appeal is directed against the judgment and\n              decree dated 14.10.1999 passed by Shri S. P. Singh, Sub Judge-II,\n              Saraikela in Money Suit No. 2\/95\/S.R.1\/97, by which judgment the\n              learned Sub Judge dismissed the suit on contest with cost.\n              2.            It is submitted by the learned counsel for the appellant\n              that the learned Sub Judge wrongly dismissed the suit giving a\n              finding that the suit is barred by law of limitation and decided issue\n              no. 3 against the plaintiff-appellant. Learned counsel has further\n              submitted that the learned Sub Judge also committed an error of law\n              in deciding issue no. 4 that the court at Saraikela had no jurisdiction\n              to try the suit and as such the judgment of dismissal is bad in law\n              and only fit to be set aside and the appellant-plaintiff is entitled to\n              get a decree for refund security amount of Rs.5.75 lakhs with\n              defendant no.1-Andhra Oxygen Pvt. Ltd. which was deposited with\n              him as per the agreement entered into between the parties.\n              3.            On the other hand, learned counsel appearing for the\n              respondents-defendants has submitted that as per the agreement\n              between the parties the machine i.e. Air Compressor Machine was\n              installed in the premises of the plaintiff at Gamharia by the\n              defendant no.1-Company on the condition that he will return the\n              same in workable condition, but the same is not returned in workable\n              condition. Then, the respondent-defendant will be liable to claim\n              damages for the same and entitled to get the cost of the repair of the\n              machine. Admittedly, the machine was dismantled before arrival of\n              engineer of respondent no.1-defendant no.1 and subsequently\n              respondent incurred a heavy expenditure in repair of the Air\n              Compressor     Machine.    Learned       counsel   appearing   for   the\n                             2\n\n\nrespondents-defendants further submitted that the suit was obviously\ntime barred and it was filed as an afterthought only to harass the\ndefendant no.2-Asiatic Oxygen Limited due to their personal\ndifferences. Learned counsel for the respondents-defendants further\nsubmitted that the plaintiff-Bihar Air Products Ltd. filed several\ncriminal and civil cases against defendant no.2 only to harass the\ndefendant no.2 and this was also one such suit.\n4.            After hearing both the parties and going through the\nrecord, I find that the plaintiff's case, in his plaint, is that the\nplaintiff's Company incorporated under the Companies Act, 1956\nhaving its registered office at Awatar Building Bistupur,\nJamshedpur. The plaintiff's Company produces Oxygen, D. A.Gas\netc. used for various Industrial purposes and the plaintiff supplied\nsuch gases to its customers and the plaintiff's factory is situated in\nIndustrial Area Phase-V, Gamharia, P.S. Gamharia within the\njurisdiction of Saraikella Court. I further find that the defendant nos.\n1 and 2 are both companies incorporated under the Companies Act,\n1956. The plaintiff's company in a Board of Directors meeting on\n16.12.1982<\/pre>\n
, a decision was taken to take one Air Compressor
\nMachine from the defendant no. 1’s company and an order was
\nplaced with defendant no.1 for Air Compressor Machine on hire
\nbasis. It was agreed that the plaintiff would deposit a sum of Rs. 5.75
\nlakhs as security deposit with the defendant no.1, refundable when
\nthe said machine would be returned back. It was also agreed that the
\nplaintiff would pay Rs. 20,000\/- per month as rent during the period
\nthe machine will be used by the appellant-plaintiff. In accordance
\nwith the said agreement, the plaintiff deposited Rs. 5.75 lakhs with
\nthe respondent no.1-defendant no.1 as security deposit and the
\ndefendant no.1 delivered the Compressor Machine to the plaintiff’s
\nCompany in the month of March, 1983 at the plaintiff’s premises at
\nGamharia. The plaintiff has stated that on 25th August 1989, the said
\nAir Compressor Machine was dismantled by persons deputed by
\ndefendant no.2-Company authorized by defendant no. 1 for packing
\nand despatching the machine from the plaintiff’s factory. He further
\nstated that the defendant no.2 was acting as an agent of defendant
\nno. 1 for dismantling of the machine, but the same was despatched to
\ndefendant no.1. He filed a letter dated 28.8.1989. He has further
\nalleged that both defendant nos. 1 & 2 are equally liable for the
\n                              3<\/span><\/p>\n
payment of security deposit. The plaintiff further stated that he sent
\na demand letter dated 30.6.1992 demanding the payment, but the
\ndefendants have failed to send back the same, hence he filed the suit.
\nThe plaintiff has further stated that the finding of the trial court that
\nthe defendants had any right to claim the cost of repair in absence of
\nany agreement between the parties to return the said Compressor
\nMachine in good and running condition, is bad in law and only fit to
\nbe set aside.\n<\/p>\n
5.              On the other hand, the defendants appeared in the suit
\nand file their written statements stating therein that the plaintiff is a
\nCompany incorporated under the Companies Act and its engaged in
\nmanufacturing gases. It is further stated that the defendants and their
\nassociate Companies entered into a collaboration agreement with the
\nBihar State Industrial Development Corporation for setting up a
\nplant in Bihar at Jamshedpur for manufacturing industrial gases and
\naccordingly the plaintiff’s Company i.e. Bihar Air Products Ltd.
\ncame into an existence. It was agreed that the Managing Director of
\nBihar Air Products shall be nominated by defendant no.2 and
\naccordingly Shri S.S.Malik was appointed as Managing Director in
\nBihar Air Products from its inception being the nominee of the
\ndefendant no.2. The said S.S.Malik of Bihar Air Products suffered
\nhuge loss and as such the said S.S.Malik tendered his resignation on
\n23rd April, 1992 and his resignation was accepted by defendant no.2.
\nIt is further alleged that subsequently Sri S.S.Malik in connivance
\nwith Bihar State Industrial Development Corporation withdrew his
\nresignation by his letter dated 28th May, 1992 and thereafter Sri
\nS.S.Malik, Ex-Managing Director of Bihar Air Products and one
\nN.C.Mukherjee in collusion with each other filed frivolous cases
\nsuch as criminal and civil against the defendant nos. 1 & 2. They
\nalso filed cases at Calcutta High Court, but did not succeed. The
\ndefendants admitted that an old machine was booked with the
\ndefendant no.1 as per the meeting of the Company dated 16.12.1982
\nand the said old machine was given on hire by defendant no.1 on
\nsecurity deposit of Rs.5.75 lakhs and on a monthly rental of Rs.
\n20,000\/- per month even it was also agreed with the plaintiff’s
\ncompany that he will return the said Air Compressor Machine in a
\nworkable condition and without any technical defects. The defendant
\nno.1 sent its engineer for the inspection of the said machine and
\n                              4<\/span><\/p>\n
found many defects in the said machine, but in spite of several
\nrequests made by defendant no.1 the appellant-plaintiff failed to
\nrectify the defects and finally the machine was dismantled on
\n25.8.89. With the help of defendant no. 2, it was found that the
\nequipment has become not workable and after spending a huge loss
\nof Rs. 8-10 lakhs for repair of the said machine the said machine was
\nmade workable, hence the defendant no.1 demanded Rs. 2.25 lakhs
\nafter adjusting security deposit of Rs. 5.75 lakhs. The defendant
\nno.1 had suffered a loss of Rs. 2.25 lakhs as per the terms and
\nconditions of the agreement since within the misuse of the plaintiff
\nthe machine become unworkable, hence the plaintiff should fulfill
\nthe damages.\n<\/p>\n
6.             After hearing both the parties and on their pleadings
\nthe learned trial court framed the following 9 issues:\n<\/p>\n
       1.      Is the suit as framed maintainable?\n<\/p><\/blockquote>\n
       2.      Has the plaintiff got any valid cause of action for the
\n               suit?\n<\/p><\/blockquote>\n
       3.      Is the suit time barred?\n<\/p><\/blockquote>\n
       4.      Has this court got jurisdiction to entertain this
\n               suit?\n<\/p><\/blockquote>\n
       5.      Is it a fact that defendant no.2 acted as an agent of
\n               defendant no.1 in removing back the Air Compressor
\n               Machine from the premises of plaintiff’s factory?\n<\/p><\/blockquote>\n
       6.      Whether the defendant no.2 is also liable to pay
\n               security money jointly and severally with defendant
\n               no.1or not?\n<\/p><\/blockquote>\n
       7.      Whether the plaintiff is entitled to receive back the
\n               security deposit from defendant no.1 amounting to Rs.
\n               5.75 lakhs with interest?\n<\/p><\/blockquote>\n
       8.      Is the plaintiff entitled to a decree as claimed for?\n<\/p><\/blockquote>\n
       9.      To what other relief or reliefs of any; the plaintiff is
\n               entitled to get?\n<\/p><\/blockquote>\n
7.     The learned trial court while deciding the issue no. 5 against
\nthe plaintiff holding that the defendant no. 2 did not act as an agent
\nwith defendant no.1 in dismantling the old compressor machine.
\nThe learned trial court also decided issue no.3 against the plaintiff
\nand came to a conclusive finding that the suit was hopelessly time
\nbarred and also decided the main issue of jurisdiction that is issue
\n                             5<\/span><\/p>\n
no. 4 holding that the Court at Saraikella had no jurisdiction to try
\nthe suit and finally dismissed the suit.\n<\/p>\n
8.     After hearing both the parties and going through the
\nevidences of plaintiff’s case, I find that as far as issue no. 4 is
\nconcerned on the basis of the correspondence with the plaintiff and
\ndefendant relying on Exts.1\/C, 1\/A and Exts. 2 to 2\/L and also Exts.
\n3 and Exts. 5 to 5\/B. 3, 5 to 5b, the learned trial court found that all
\nthe correspondences were made from the plaintiff’s company head
\noffice, situated at Awatar Building, Bistupur, Jamshedpur and hence
\ncame to a finding that since the company’s Headquarter is at
\nJamshedpur and entire correspondences and agreement took place
\nthere, hence only Jamshedpur court has got jurisdiction, but the trial
\ncourt lost sight of the fact that the part of cause of action arose
\nwithin the jurisdiction of Saraikella at Gamaharia. The agreement
\nwas for installing a compressor machine in the factory of plaintiff’s
\ncompany at Gamaharia within the jurisdiction of Saraikella. The
\nsaid machine was dismantled by the defendant no. 1’s Company at
\nGamaharia and it was despatched to defendant no. 1’s company at
\nMadras from Gamaharia and hence as per Section 20(c) of the Code
\nof Civil Procedure a suit lies where the cause of action wholly or in
\npart arises even the explanation of section 20 says that a corporation
\nshall be deemed to carry on business at its sole or principal office in
\nIndia or, in respect of any cause of action arising at any place where
\nit has also a subordinate office, at such place. Admittedly, there is a
\nfactory at Gamaharia and it has got subordinate office also at
\nGamaharia and as such Saraikella court had jurisdiction to try the
\nsuit and the issue no. 4 which has been decided against the plaintiff
\nis set aside and the said issue decided in favour of the appellant-
\nplaintiff.\n<\/p>\n
9.     However, as far as issue no.3, the point of limitation is
\nconcerned, which has been submitted by the learned counsel for the
\nappellant-plaintiff that the suit was filed on 12.1.1995 within 3 years
\nfrom the last date of demand made by the plaintiff for the refund of
\nthe said security deposit of Rs. 5.75 lakhs and hence the suit is
\nwithin time.\n<\/p>\n
10.    It is submitted by the learned counsel for the plaintiff
\nappellant that since defendant no. 1 never refused the demand and
\nhence the suit is within time from the date of his last demand.\n<\/p>\n
                               6<\/span><\/p>\n
11.    On the other hand, the defendants have submitted that vide
\nletter-Ext-A dated 27.11.89 they denied their claim of the plaintiff
\nfor any refund and specifically stated that they have incurred the loss
\nfor getting the machine in workable condition and demanded Rs.
\n2.25 lakhs from the plaintiff and as such that is a complete denial of
\ntheir demand and hence the suit has to be filed by 27.11.92 and since
\nthe same was not filed within time it was hopelessly barred.\n<\/p>\n
12.    From perusal of Ext.-A dated 27th November,.89 and Ext. A\/1
\ndated 18th November, 1989, it is clear that defendant no. 1 refused to
\nrefund the security deposit and as per Article 70 of the Limitation
\nAct the time is three years from the date of refusal after demand,
\nsince, admittedly by letter as Exts. A and A\/1 finally the defendant
\nno. 1 refused to pay back the security deposit of Rs. 5.75 lakhs and
\nby its letter dated 27.11.89 it demanded the difference or loss caused
\nto them at Rs. 2.25 lakhs which they have incurred on the repair of
\nthe equipment, the suit should have been filed within 3 three from
\n27.11.89.\n<\/p>\n
13.    Accordingly, I find that the suit was barred by the law of
\nlimitation and the trial court finding on that score, which requires no
\ninterference by this Court.\n<\/p>\n
14.    As far the plaintiff’s claim of refund of Rs. 5.75 lakhs is
\nconcerned, it has been submitted by the learned counsel for the
\nplaintiff that there was no agreement that the machine has to be
\nreturned in a workable condition, but from perusal of the evidences
\nas adduced by the plaintiff as also by the defendant, it is clear that
\nthe   plaintiff’s   witnesses     no.3,   Shyam      Sunder    Narora
\nadmitted his evidence at para 11 that there was no written agreement
\nwith the defendant no. 1’s Company with regard to taking the air
\ncompressor machine on rent and the agreements were made on
\nvarious meetings and letters. He also admitted in para 12 that it was
\nagreed between the parties that the plaintiff will return the machine
\nin workable condition. It is important to note that the plaintiff or
\ndefendnat have not filed any ‘Written Agreement’ nor proved the
\nsame in trial and as such the acceptance made by the plaintiff’s
\nwitness no. 3 has to be accepted as agreement that the plaintiff was
\nbound to return the same in a workable condition.\n<\/p>\n
15.           The plaintiff has also claimed that the machine was
\ndismantled by defendant no. 1 and they had taken the same on
\n                                          7<\/span><\/p>\n
            23.8.89 and the machine was in good condition, but it appears from
\n            the evidence of plaintiff’s witness itself that it is not a correct fact,
\n            the plaintiff’s witness no. 6, S.K.M.Sinha has stated, in his evidence,
\n            that the machine was dismantled on 18.8.89 itself and subsequently
\n            when the representative engineer of defendant no. 1 he only received
\n            a dismantled machine and hence the claim of the defendant no. 1 that
\n            they got the machine fully checked at Madras and found that it is not
\n            workable and hence they got the same repair suffering a loss since
\n            repair cost comes to Rs. 8-10 lakhs and they demanded Rs. 2.25
\n            lakhs after adjusting Rs. 5.75 lakhs seems to be a demand as per the
\n            agreement and the claim of the plainfiff for refund of the security
\n            deposit was not maintainable and the trial court rightly decided issue
\n            no. 7 also against the plaintiff.\n<\/p>\n
            16.    Thus, after discussing all the points raised by the plaintiff and
\n            considering the same as per the evidence and documents I find no
\n            infirmity or impropriety in finding recorded by the trial court on any
\n            of the issue.\n<\/p>\n
            17.    I find no merit in this appeal and the same is accordingly
\n            dismissed with cost.<\/p>\n
\n\n\n                                                               [ Pradeep Kumar,J]\nJharkhand High Court, Ranchi,\nThe    26th April, 2010\nJK\/NAFR\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court Bihar Air Products Ltd. vs Andhra Oxygen P.Ltd.& Anr. on 26 April, 2010 F. A. No. 1 of 2000 ( R) —- Against the judgment and decree dated 14.10.1999 passed by Shri S. P. Singh, Sub Judge-II, Saraikela in Money Suit No. 2\/95\/S.R.1\/97. — Bihar Air Products Limited, Adityapur Industrial Area, Phase-V […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-121247","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nBihar Air Products Ltd. vs Andhra Oxygen P.Ltd.& Anr. on 26 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bihar-air-products-ltd-vs-andhra-oxygen-p-ltd-anr-on-26-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bihar Air Products Ltd. vs Andhra Oxygen P.Ltd.& Anr. on 26 April, 2010 - 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