HIGH COURT OF CHHATTISGARH AT BILASPUR First Appeal No. 158 of 2006 APPELLANT: Plaintiff RESPONDENTS: Defendants M/s Raipur Alloys & Steels Ltd., A Company Registered under Indian Companies Act, 1956, having its office at P-49, Industrial Area Urla, Raipur. Represented through it's A (Officer) Legal, Gopal Ranjan Panigrahi, S/o C.P. Panigrahi, aged about 33 years, P-49, Industrial Area, Urla, Raipur (CG) Versus 1. 2. 3. M/s Larsan & Tubro Limited, L&T House, Balard Estate, Mumbai 400 001 M/s Cummins Diesels (Sales & Services) India Limited, 35-A/1/2 Irandawana, Pune411 038 Cummins India Limited, Kothrud, Pune 411 021 Present: Shri Chandresh Shrivastava, counsel for the appellant. Shri B.P. Sharma, counsel forthe respondents. Division Bench: Hon'ble Shrj Dhirendra Mishra & Hon'ble Shri R.N. Chandrakar, JJ. JUDGIVIENT (1-4-2010) The following judgment ofthe Court was delivered by Dhirendra Mishra, J. 1. This first appeal under Section 96 of the Code of Civil Procedure is directed ' against the judgment and decree dated 31 January, 2006 passed in Civil Suit No.SO-A/2002 whereby learned 9th Additional District Judge, Raipur, has dismissed the plaintiff's suit for claim of Rs.10 lakhs towards cost of replacement of engines, spare parts and other expenditure incurred by the plaintiff. ny 2. Hereinafter the parties shall be referred to as per their description before thev trial Court. 3. Briefly stated the plaintiffs case before the trial Court was that defendant No.1 supplied two pay loaders on 13-7-1992 and 7-2-1993 along with warranty certificate. Warranty was effective for a period of 6 months or one thousand hours whichever is less and earlier. The performance of the supplied machinery was not satisfactory since beginning. There were starting problems, over heating of transmission oil and non-availability of the spare parts. The engines of the pay loaders were manufactured by defendant No.2 and 3. Defendant No.3 had assembled loaders and thus, the defendants are jointly and severally responsible for deficiencies and mechanical defects of the pay loaders. The plaintiff brought the above defects and shortcomings of the pay loaders to the notice of the defendants. Ultimately, he served them with a legal notice. On receiving notice from the , plaintiff, defendant No.1 addressed a letter to defendant No.2 on 2-8-1994 and forwarded copy of the same to the plaintiff. By the above letter, defendant No.2 was apprised about the complaints of the plaintiff. Another letter dated 8-8-1994 was written by defendant No.1 to defendant No.2. Defendant No.2 in his reply dated 25-7-95 admitted that Cummins engine fitted in pay loaders is not suitable and because of this, the plaintiff suffered ' additional loss. 4. Thus, from the above documents, it is evident- that there was some inherent defect in design and manufacture and the defendants are jointly and severally liable for payment of damages suffered by the plaintiff. The plaintiff demanded for replacing defective engine or in the alternative for refund of consideration and return of pay loaders. However, after lengthy negotiations, ^"i^ '^ //'^^ "^ S f J^^a » il ^^SF"^ S "^: .s' the plaintiff replaced the engine as advised by the defendants by spending a sum of Rs.10 lakhs. However, they did not yield any desired result and the plaintiff prayed for relief of free replacement of defective pay loaders with new pay loaders and a sum of Rs.10 lakhs towards expenditure incurred by him on engine replacement, spare parts and maintenance with interest. The defendants in their separate written statement denied the allegations in the plaint. 5. On the pleadings of the respective parties, the trial Court framed issues as ' detailed in paragraph-11 of the judgment. The documents have been filed by the parties. The plaintiff examined Shri Gopal Prasad Soni in support of his casewhereas, Shri Pradeep Inchurkarwas examined by defendant No.1 and Shri Vivek Hajela was examined by defendant No.2 as their witnesses. 6. The trial Court dismissed the suit by recording a finding that Shri G.K. Changani was competent to sign and verify the plaint; the plaintiff failed to prove that pay loaders supplied by defendant No.1 developed defect/snag within the warranty period; he also failed to prove that the plaintiff incurred expenditure on spare parts and maintenance as per advise of defendant No.1 to the tune of more than Rs.10 lakhs and he is not entitled to recover Rs.10 lakhs; the pay loaders were assembled by defendant No.1 and fitted the engine manufactured by defendant No.2; the suit is within the prescribed period of limitation and the court has territorial jurisdiction to hear the suit; the plaintiff has paid proper court fee and the plaint does not suffer from non- joinder and mis-joinder of the parties and the plaintiff is not entitled for any relief by way of damages and the suit has been dismissed with costs. ft.fSac- '/1:. . <i3®s'i.&. ;, Igsg?' •i' (5 ( 7. Shri Chandresh Shrivastava, learned counsel for the appellant/plaintiff vehemently argued that learned Additional District Judge was not justified in deciding issue No.2 against the plaintiff and holding that it is not proved that both the pay loaders developed defect within the warranty period and he has also failed to prove that there was any manufacturing fault. The document of Ex.-P/49, is a letter dated 3-7-1993 written by the plaintiffto defendant No.1 in which problems faced by the plaintiff in operating pay loaders have been elaborately detailed. The letter was dispatched within the currency of warranty period which goes to show that pay loaders developed defect within the warranty period, however, the trial Court without considering the above letter has decided issue No.2 against the plaintiff which is on the face of it erroneous. 8. On the other hand, Shri B.P. Sharma, learned counsel for the respondents/ defendants would argue that it was consistent stand of the defendants before the trial Court that the supplied pay loaders did not develop any defect within the warranty period according to which warranty was available to the buyer within 6 months of the supply or within one thousand hours of the use of pay loaders, whichever is earlier. 9. In the ihstant case, the plaintiff has not adduced any evidence to establish that supplied machineries developed defect within one thousand hours of its supply by defendant No.1. Even otherwise, the trial Court, on the basis of documents filed by the plaintiff and proved, arrived at the conclusion that the plaintiff failed to establish that pay loaders developed any snag within the warranty period. Sofar as document of Ex.-P/49 is concerned, there is no specific pleading in the plaint regarding aforesaid document that after detecting defect which developed during the currency of the warranty period, the plaintiff dispatched his letter to defendant No.1 vide Ex.-P/49. From perusal of the documents, it would be evident that there is no document evidencing receipt of the above document by defendants. Even postal/ courier acknowledgement evidencing dispatch of the said document on the date indicated in the document has not been filed and proved. The plaintiff has also not stated on oath that the document of Ex.-P/49 was in fact dispatched by him. 10. The trial Court considering the admitted fact that after purchase of the first pay loader on 30-6-1992, the plaintiff obtained second pay loader on 31-1- 1993; held on preponderance of probability that had there been any defect in pay loaders within its warranty period, the plaintiff would not have gone for second pay loader, and dismissed the suit of the plaintiff. 11. We have heard learned counsel for the parties. We have perused the record ofthe trial Court as also impugned judgment. 12/The trial Court after elaborately dealing with the documentary and oral evidence available on record held that though the plaintiff has averred in the plaint that pay loaders supplied by defendant No.1 did develop snag and there was hard starting problems, spare parts of the machine were not available with the defendants, there was some heating problem in the transmission oil; The plaintiff in his evidence has also stated that the defendants vide their letter dated 8-8-1994 (Ex.-P/S) advised to substitute the engine by the engine of Ashok Leylands company, however, the plaintiff has not filed any documents and proved.which would go to show that the machineries developed snag within the warranty period. 13. From perusal of the plaint and evidence of the plaintiff, we also find that there is no pleading in the plaint with respect to document of Ex.-P/49 that the plaintiff dispatched the same within the warranty period to defendant No.1 complaining about the defects in the pay loaders and even in his evidence before the Court, the plaintiff has not deposed that document of Ex.-P/49 was dispatched by him within the warranty period. In these circumstances, we are of the opinion that the finding of the trial Court that the plaintiff has failed to prove that both the pay loaders developed defect/snag within the warranty period or that there was any manufacturing fault in the supplied machineries, is based on the cogent and clinching evidence and the same does not require any interi'erence by this Court. 14. Since no other argument was advanced by learned counsel for the appellant/ plaintiff, we find no substance in this appeal, the same deserves to be and is accordingly dismissed with costs throughout. Sd/- Dhu'endra Mishra Judge SA'- R-N. Chandrakar Judge Barve