RSA No.1591 of 2008 1 In the Punjab and Haryana High Court,at Chandigarh. RSA No.1591 of 2008 Decided on November 07,2008. Amritsar Pulp & Board Mills (P) Limited -- Appellant vs. Rana Sugars Limited ---Respondent Present: Mr.Sarbjit Singh, Advocate, for the appellant Mr.Rahul Sharma,Advocate,for the respondent. Rakesh Kumar Jain,J: This is defendant's Regular Second Appeal against the judgments and decrees of both the Courts below, whereby the plaintiff's suit for recovery of Rs. 27,39,958.50 paise has been decreed. The plaintiff company is running its business at village Buttar Seviyan, Post Office Sathiala, Tehsil Baba Bakala, Amritsar and is engaged in manufacturing sugar as well as Bagasse (Chura) which is sold to different parties. The defendant company is running a Pulp and Board Mill at Gutala. There was an agreement (letter) dated 11.11.1995 executed between the plaintiff and the defendant as per which the plaintiff agreed to supply 5000 tones of Bagasse (Chura) to the defendant in the crushing year 1995-96 at RSA No.1591 of 2008 2 the rate of Rs. 320/- per ton ex-factory of plaintiff including the sale tax . The defendant agreed to pay Rs.350/- NP per quintal as loading expenses. The plaintiff firm supplied the following Bagasse to the defendant worth Rs. 3,49,072/-:- Bill No. Date Quantity Rate Amount -------------------------------------------------------------------------------------------- 0004 30.11.95 9858-40 Rs.32/- Rs.315468-80 per Qntl. 0020 31.12.95 1050.10 Rs.32/- Rs. 33602-20 -------------------------------------------------------------------------------------------- Rs.34,9072.20 During the supply period of Bagasse, another contract was entered into between the plaintiff as also the defendant in respect of rate of Bagasse which was fixed @ Rs.45/- per quintal consented to in writing by the defendant dated 15.1.1996. After re-fixing of the rates, the plaintiff supplied Bagasse as per detail given below:- Bill No. Date Quantity Rate Amount -------------------------------------------------------------------------------------------- 0037 31.1.96 2049.60 Rs.45/- Rs.91827-00 per Qntl. 0045 29.2.96 10435.25 -do- Rs.469586.25 064 31.3.96 10494.60 -do- Rs.472257.00 09 30.9.96 9507.05 -do- Rs.427817.25 26 31.5.96 994.30 -do- Rs. 44743.50 ------------------------------------------------------------------------------------------- Rs.15,06,231.00 In all, the plaintiff company supplied total Bagasse (Chura) weighing 44380 quintals and 30 Kgs but in these bills, Bagasse weighing 191 quintals 95 Kgs was deducted being inadvertently added and as such, the plaintiff company supplied the Bagasse weighing 44188 quintals and 35 Kgs worth RSA No.1591 of 2008 3 Rs.18,53,303.00/- besides loading charges of Rs. 1,46,021.50 NP total amounting to Rs.20,01,324.50 NP against which the defendant had paid only Rs.1,50,000/- on 17.1.1996. The defendant was to pay the outstanding amount of Rs.18,51,324.50 NP towards the principal amount. When this amount was demanded, the defendant admitted the claim but asked the plaintiff to recover the amount from one Standard Sales, Jalandhar. Since there was no contract between the parties, namely the plaintiff and Standard Sales, Jalandhar, there was no question of claiming the amount from them. On these premises, the plaintiff filed a suit for recovery of Rs.18,51,324.50 NP towards principal amount and Rs.888634/- towards interest, total amounting to Rs. 27,39,958.50NP. In the written statement, besides taking technical objection, the suit was contested on merit, in which it was admitted that there was an agreement dated 11.11.1995 for supply of 5000 tones of Bagasse @ Rs 320/- per quintal for loading charges at Rs. 3.50 per quintals but it was pleaded that the plaintiff had failed to supply the required quantity of Bagasse as per terms of the agreement and that the rate claimed by the plaintiff was excessive. It was not denied that the rate was later on agreed to be paid @ Rs.45/- per quintals as per writing dated 15.1.1996, but the said rate came into force only after supply of Bagasse under the previous contract and as such the plaintiff can recover the price @ Rs.3.50 per quintal. Since the total supply was only 44188 quintals and 35 Kg against the agreed quantity of 5000 tones, it was pleaded that the payment was to be made by Standard Sales, Jalandhar through whom the defendant supplied the goods. It was alleged that the plaintiff was not entitled to recover the RSA No.1591 of 2008 4 amount in question from the defendant. The basic issue in this case was as to whether the plaintiff was entitled to recover the amount as alleged from the defendant or from Standard Sales, Jalandhar. While dealing with this question, the learned trial Court after taking into consideration the evidence on record observed as under:- “ It is the case of the defendant that payment was to be made by the Standard Sales, Jalandhar to the plaintiff company. Even it is alleged that the defendant company had already paid the amount to the plaintiff concern and now nothing is due. But the defendant had miserably failed to prove on record that the defendant had already made the payment to the plaintiff and now nothing is due against him. It is not proved on the file that there was any adjustment/contract that outstanding amount will be paid by Standard Sales, Jalandhar. DW-1 Mohan Singh admitted in his cross- examination that he has no knowledge regarding the payment given by Standard Sales, Jalandhar to Rana Sugar. DW2 Rajesh Kumar in his cross examination admitted that in the letter dated 11.11.1995, there is no reference that the payment will be made by Standard Sales, Jalandhar. He further admitted that there is no document to show that the Standard Sales, Jalandhar is to pay the amount of Bagasse to the plaintiff company. He further stated that he is not in possession of any document regarding the payment to the plaintiff company either by the defendant firm or by Standard Sales, Jalandhar. Even Satnam Singh, Managing Director of the defendant company also admitted in his cross examination that there is nothing with him to show that payment was to be made by Standard Sales, RSA No.1591 of 2008 5 Jalandhar to the plaintiff company. Even he is not in possession of any document to show that adjustment with the Standard Sales, Jalandhar. Rather DW 4 Swatanter Kumar prop. of the Standard Sales, Jalandhar had totally shattered the claim of the defendant. In his chief examination itself he has stated that there was no agreement by which he had agreed to pay the outstanding amount to the plaintiff company. In his cross-examination, he had admitted that their firm has not paid any amount to the plaintiff company on behalf of the defendant. Thus, the defendant had failed to prove on record that they had already made payment through Standard Sales, Jalandhar to the plaintiff firm”. In appeal, the same argument was raised which was dealt-with by the learned Appellate Court as under:- “Another point argued by learned counsel before this Court is that the payment was to be made by M/s. Standard Sales, Jalandhar. The said contention of the defendant is belied by the statement of DW 4 examined by the defendant. DW 4 Swatanter Kumar is the proprietor of Standard Sales, Jalandhar and in his statement, he has stated that he was not having any business with the plaintiff firm. He had paid the amount to Rana Sugar Mills prior to the agreement. Standard Sales is running the business of paper mill. The respondent is running the business of sugar mill. In his examination-in-chief itself, he stated that there was no mutual agreement under which his firm agreed to pay the amount to the defendant firm. In his cross-examination, he stated that after the agreement between the parties, his firm did not make any payment to the plaintiff. Before this agreement between the plaintiff and the defendant, his firm was having direct dealing RSA No.1591 of 2008 6 with the plaintiff firm and his firm has not made any payment to the plaintiff firm on behalf of the defendant firm. As such, the statement of DW4 shows that the Standard Sale, Jalandhar never agreed to make the payment on behalf of the defendant firm to the plaintiff nor the said firm made any payment to the plaintiff. Admittedly, the supply was made to the defendant. Agreement was also entered into with the defendant firm. As such, the defendant is liable to pay the amount to the plaintiff firm and the trial Court rightly decided all the issues against the defendant”. Even before this Court, learned counsel for the appellant has submitted that an application filed by the defendant under Order 41 Rule 27 of the C.P.C. has been wrongly dismissed by the Court below vide which the defendant wanted to lead evidence to prove on record the letter dated 13.2.1996 issued by Standard Sales, Jalandhar to the defendant as per which the plaintiff was to receive the amount of Bagasse from M/s. Standard Sales, Jalandhar. Although, learned counsel for the appellant has laid great stress upon the letter dated 13.2.1996, but he failed to point out from the record that there was any adjustment/contract between the plaintiff and the defendant that the outstanding amount will be paid by M/s.Standard Sales, Jalandhar to the plaintiff. It has been concurrently found by both the Courts below after appreciating of the entire evidence on record that even Mr. Satnam Singh, Managing Director of the defendant company admitted in his cross examination that there is nothing with him to show that the payment was to be made by Standard Sales, Jalandhar to the plaintiff-company. Even DW 4 Swatanter Kumar, proprietor of M/s.Standard Sales, Jalandhar has stated that he was not having any business with the plaintiff company. In RSA No.1591 of 2008 7 such a situation, the defendant cannot shift its liability upon a third party who has not agreed to make the payment of the defendant to the plaintiff. Learned counsel for the appellant has failed to point out any question of law much-less substantial involved in this appeal. In view of my above discussion, I do not find any merit in this appeal and the same is hereby dismissed without any order as to costs. November 07,2008 (Rakesh Kumar Jain) RR Judge