IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 275 of 2011. Reserved on: 06.07.2011. Decided on : 13.07.2011. _____________________________________________________ M/s. Asian Engineering Works, Sainik Chowk, Bhuntar, Tehsil and District Kullu, (H.P.). …Appellant. -Versus- M/s. Jai Bharat Engineering Works, Sainik Chowk, Bhuntar, Tehsil & District Kullu (H.P.). …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellant. : Mr. O.P. Sharma, Senior Advocate with Mr. K.R. Kashyap, Advocate. For the respondent. : Nemo. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 28.05.2011, passed by the learned Additional District Judge, F.T.C., Kullu, H.P. in Civil Appeal No. 4 of 2010. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the respondent-plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) deals and supplies various items of hardware, wielding material, electrodes, accessories, power cables and all kind of general industrial items. During the financial year 2002-2003 and 2003- 2004, the plaintiff sold and delivered to the appellant-defendant (hereinafter referred to as ‘the defendant’ for brevity sake) various items of hardware, wielding material, electrodes, accessories, 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - power cables and all kind of general industrial items. The defendant used to buy things from the plaintiff on credit basis and used to make payment regularly. However, according to the plaintiff, after October, 2003, the defendant made no payment to the plaintiff. The accounts between the plaintiff and defendant were finally settled up to 31.03.2004 and a balance amount of `8,00,364/- was found outstanding towards the defendant. Plaintiff requested the defendant many times to pay the above said amount of `8,00,364/-, but the defendant kept on delaying the matter. A notice was also issued to the defendant through an advocate to make the payment. It is in these circumstances, the suit for `8,00,364/- alongwith interest @10% per annum from the date of filing of this suit till its realization with costs of the suit was filed. 3. The suit was contested by the defendant. According to the defendant, he received certain items of hardware and other material as per acknowledged delivery challan. He has given the details of articles received by him in paragraph No. 3 of the written statement. He has specifically pleaded that he has paid `2,00,000/- vide cheque No. 828479, dated 18.10.2003, `1,00,000 on 08.02.2003, `15,000/- on 29.10.2002, `15,000/- on 30.10.2002, `15,000/- on 19.02.2003, `15,000/- on 20.02.2003, `20,000/- on 26.10.2002, `20,000/- on 28.10.2002 and `8700/- on 05.08.2002. Thus, a sum of `4,08,700/- was paid to the plaintiff. According to the defendant, the plaintiff has also received the articles from the defendant and his sister concern on various challan on various dates amounting `1,42,307/- only and this amount was required to be adjusted to the amount claimed by the - 3 - plaintiff. He further pleaded that he was ready and willing to pay a sum of `2,49,357/- only, whereas the plaintiff has claimed `8,00,364/-. 4. The replication was filed by the plaintiff. The issues were framed by the trial Court on 23.07.2007. The trial Court decreed the suit for recovery of `8,00,364/- alongwith interest @10% per annum from the date of filing of the suit till realization of the entire decretal amount. Defendant preferred an appeal before the learned Additional District Judge, F.T.C., Kullu, H.P.. The same was dismissed on 28.05.2011. Hence, this Regular Second Appeal. 5. Mr. O.P. Sharma, learned Senior Advocate for the appellant has strenuously argued that both the courts below have mis-read and mis-construed the evidence led by the parties, which has resulted in grave injustice. According to him, the plaintiff has not proved that a sum of `8,00,364/- was to be paid by the defendant. According to him, the suit was filed beyond the period of limitation. 6. Plaintiff has appeared as PW-1. He has led his evidence by way of affidavit Ex. PW-1/A. According to the recitals contained in the affidavit, he supplied the material on different dates vide bills Ex. P-1 to Ex. P-167 as per computer ledger print out Ex. P-168 to Ex. P-171. He also served a legal notice upon the defendant vide Ex. PW-1/B against postal receipt Ex. PW-1/C. According to him, when the account was settled, a sum of `8,00,364/- was outstanding against the defendant. Plaintiff has admitted that he has received a sum of `2,00,000/- from the defendant. He has denied that on 08.02.2003, he has received - 4 - `1,00,000/-. He also denied that on 29.10.2002 and 30.10.2002, he has received a sum of `15,000/-each. He further denied that on 19.02.2003, he has received a sum of `15,000/-, on 26.10.2002 and 28.10.2002, a sum of `20,000/-. He has denied that he has received a sum of `4,08,700/- from the defendant. 7. Plaintiff has also examined PW-2 Ranjit Singh. He has also led his evidence by way of affidavit Ex. PW-2/A. According to him, as per the account statement, the outstanding amount was `8,00,364/-. In cross-examination, he has stated that he used to maintain the account of the plaintiff. 8. Plaintiff has also examined PW-3 Shri R.L. Thakur, who has served a legal notice Ex. PW-1/B upon the defendant against postal receipt Ex. PW-1/C. Shri Lal Chand was examined as PW-4. He has proved Ex. PW-4/A. 9. Defendant has produced DW-1 Balak Ram. He has led his evidence by way of affidavit Ex. DW-1/A. According to the averments contained in the affidavit a sum of `2,61,743/- was outstanding against the plaintiff. He has placed on record Ex. D-1 to D-7. He has also admitted in his cross-examination that Surya Narayan has made the payment on 18.10.2003 by way of cheque in the sum of `2,00,000/-. This amount was admitted by the plaintiff at the time of settlement of accounts. Though he has deposed that he was having receipt of the payment made on different dates, but no such receipt has been placed on record by him. He has denied that on 31.03.2004, the amount was settled and a sum of `8,00,364/- was outstanding against him. He has shown his ignorance about the issuance of legal notice. - 5 - 10. Defendant has also examined Shri Ravinder Kumar as DW-2. He has also led his evidence by way of affidavit Ex. DW- 2/A. According to him, the total articles received between 1.7.2002 to 21.4.2003 were in the sum of `8,12,750/-. The defendant has paid a sum of `4,08,700/- to the plaintiff on different dates. According to him, the plaintiff has also purchased the articles worth `77,262/-. According to him, the defendant has deposited the sale tax of the plaintiff on 08.02.2003 for `1,00,000/-. He further deposed that articles worth `65,045/- were also received by the plaintiff from the defendant. According to him, the defendant has never purchased articles worth `2,91,083/-, as claimed by the plaintiff. He has not produced on record the receipt of `1,00,000/-, dated 08.02.2003. He has denied the settlement of accounts on 31.03.2004. He has also denied that the defendant had purchased total articles for `11,09,064/- and has paid only `3,08,700/- to the plaintiff. DW- Dhani Ram has also led his evidence by way of affidavit Ex. DW- 3/A. According to him, he was maintaining the ledger account of the defendant for the year 2002-2003 and for the year 2003-2004. He has admitted Ex. P-172 to Ex. P-179 to be correct. 11. Defendant has also examined DW-4 Surender Kumar, salesman of the defendant. He has tendered his evidence by way of affidavit Ex. DW-4/A. According to him, the defendant has given to him a sum of `1,02,000/- to deposit the sale tax of the plaintiff on 08.02.2003, but due to Second Saturday, he could not deposit the same on the said date. He has deposited the same on 10.02.2003. However, in cross-examination, he has admitted that he did not know the sales tax number of the plaintiff. He could not - 6 - narrate as to who has supplied the sale tax number to him to deposit the sale tax of the plaintiff. 12. The defendant has not led any tangible evidence on record to establish that the outstanding amount was paid by him by producing receipts. Plaintiff has proved his case on the basis of Ex. P-1 to Ex. P-179. The defendant has admitted that a sum of `2,00,000/- was paid to the plaintiff at the time of settlement of accounts. 13. Now, as far as the question of limitation raised by Mr. O.P. Sharma, learned Senior Advocate for the appellant is concerned, as per the evidence led by the plaintiff, the accounts were settled on 31.03.2004 and the suit has been filed on 08.08.2006. Defendant has admitted in paragraph No. 3 of his written statement that he was ready and willing to pay `2,49,357/- to the plaintiff. It amounts to admission on behalf of the defendant. The defendant has paid a sum of `2,00,000/- by way of cheque at the time of settlement of accounts. In view of this, the present suit was not barred by limitation. The defendant has not filed reply to the legal notice Ex. PW-1/B. The receipt of the notice is Ex. PW-1/C. 14. Mr. O.P. Sharma, learned Senior Advocate for the appellant has also argued that Ex. P-1 to Ex. P-179, copies of the ledger has not been proved. Plaintiff has produced PW-2, Accountant, who has prepared the computerized account statement, in which, the day-today account had been maintained. PW-2 was not cross-examined by the defendant to the effect that account books were not kept in regular course of business or those were tampered with or prepared later on. - 7 - 15. Consequently, there is no substantial question of law involved in this Regular Second Appeal and the same is dismissed. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma) Judge July 13, 2011. (bhupender) - 8 -