RSA No.1259 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.1259 of 2010 (O&M) DATE OF DECISION: 06.05.2010 **** Jain Irrigation Systems Ltd. . . . . Appellant VS. Mashaal Irrigations Private Limited and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Arihant Jain, Advocate for the appellant. **** RAKESH KUMAR JAIN J. (ORAL) Defendant is in second appeal against the judgment and decree of the First Appellate Court dated 24.01.2009 by which the judgment and decree of the trial Court, whereby suit of the plaintiff was dismissed, has been reversed. Shorn of unnecessary details, the learned counsel for the appellant has challenged the impugned judgment and decree on two grounds; (i) that the finding recorded by the learned First Appellate Court under issue No.4-E to the effect that the suit is within limitation is wrong and (ii) the First appellate Court has erred in awarding amount of subsidy to the tune of Rs.2,92,092/- to the plaintiff on the ground that defendant had led no evidence that the plaintiff had not done 90% of RSA No.1259 of 2010 (O&M) 2 work relating to Drip/Micro Irrigation System, as the plaintiff has to stand on his own legs. The first argument raised by learned counsel for the appellant is relating to limitation. It is contended that since the suit has been filed after a period of three years, therefore, it is barred by limitation. However, learned counsel for the appellant has failed to point out any provision of the Limitation Act, 1963 under which suit is barred by limitation. Be that as it may, the suit has been filed on 9.3.2000 after a letter was written by the plaintiff on 23.1.1997 (Ex.P-19) asking the defendant No.1 to settle his account and refund advance amount of Rs.2,87,600/- paid for the last consignment which he had not received. In response to which the defendant vide his letter dated 10.3.1997 asked the plaintiff to send completion report on record on operation of Drip/Micro Irrigation System. But question of refund of the amount claimed by the plaintiff was avoided. Learned First Appellate Court recording following finding in this regard: - “As regards the claim of the appellants with regard to the recovery of advance payment of recovery of Rs.2,87,600/-, the same cannot be said to be barred by limitation. There is the clear cut statement made by DW-1 Anil Kumar Dubey, Area Manager of defendant No.1 that the advance payment of Rs.2,87,600/- received from the plaintiff has not been refunded so far. The cause of action to recover the said amount had to arise only when a refusal to pay the same was made by the defendants. The plaintiff had written RSA No.1259 of 2010 (O&M) 3 letter dated 23.01.1997, the copy of the same being Ex.P19 to defendant No.1 asking for the settlement of account and refund of deposit and advance paid for the last consignment, which had never reached and in response thereto, defendants vide letter dated 10.3.1997 asked for the submission of testing reports regarding the operation of the drip irrigation system installed in villages Dikh, Ghuman Kalan and Jalana, District Bathinda and Mansa and plaintiff accordingly had submitted the same vide their letter dated 09.04.1997, the copy of the same being Ex.P21, but the said suit had already been brought by the plaintiff on 09.03.2000 and therefore, the claim of the plaintiff in that regard could not be said to be barred by limitation. In my view, the finding recorded by First Appellate Court are in consonance with law because evasive denial on the part of the defendant was an admission of fact, which as alleged by the plaintiff that the advance amount paid for the purpose of supply of consignment was not returned, therefore, he had a cause of action to file a suit with regard to that amount, which has been filed within a period of limitation as the evasive reply was given on 10.3.1997 and suit was filed on 9.3.2000. Insofar as the second question is concern, plaintiff has appeared as PW1 and has specifically stated in his examination-in-chief as also in the cross-examination that 90% work has been completed and the 10% work is yet to be done by him. In the finding recorded, in this regard, in para 37 of the judgment, the First Appellate Court has found that in the RSA No.1259 of 2010 (O&M) 4 written statement the defendant/appellant has admitted that the plaintiff has been receiving the subsidy in respect of the work of Drip/Micro Irrigation System done by it as authorized agent of defendant No.1. That being so, a positive evidence has been led by the plaintiff that defendant No.1 has received subsidy amount of Rs.3.24,547/- in respect of projects carried out in the Orchard of Sneh Setia, Anjana Setia and Sunil/Ramesh Setia vide D.D. No.937040 dated 21.3.1997 for which plaintiff was proportionately entitled for having completed 90% of work. Learned counsel for the appellant has vehemently argued that the learned First Appellate Court has erred in observing that defendant has not led evidence that the plaintiff has not done 90% of work regarding installation of Drip/Micro Irrigation System. It is submitted that it was for the plaintiff to prove that they have completed 90% of the work of irrigation system. In my view, plaintiff, while appearing as PW1, has specifically stated in the examination-in-chief and also stated in cross- examination about the completion of 90% of work of the Drip/Micro Irrigation System in the Orchard of Setia’s and had very candidly stated that remaining 10% work would be completed. Therefore, subsidy, which was being received by the defendant from the Government on account of payment to be made to the agent in respect of the work of Drip/Micro Irrigation System done by the agent, the principal / the defendant was liable to pay proportionate amount of subsidy to the authorized agents/plaintiffs. In view of the above, I do not find any error in the finding recorded by the learned Court below in this regard as well who has awarded Rs.2,92,092/- for the completion of 90% work by authorized agent/plaintiff of defendant No.1. No other point has been raised in this RSA No.1259 of 2010 (O&M) 5 appeal. Hence, the present appeal is dismissed in limine as no substantial question of law as envisaged under Section 100 of the Code of Civil Procedure, 1908 (for short ‘CPC’) is found to have been involved. (RAKESH KUMAR JAIN) 06.05.2010 JUDGE Vivek