1 In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur Judgment in S.B.Civil Regular First Appeal No. 179/1990 M/s Appex Trading Agency vs The State of Rajasthan and another. Date of Judgment : February 11,2009 Present Hon'ble Mr. Narendra Kumar Jain,J Mr. R.D.Rastogi, for the appellant. Ms Priyanka Pareek for the State. By the Court: Briefly stated the facts of this Regular First Appeal are that plaintiff-appellant filed a suit for recovery of a sum of Rs. 37,000/- against defendants respondents in the trial court wherein it was prayed that as per oral and written orders of the defendants, the motor parts were supplied to defendants for their vehicles from time to time during the period from 1.12.1981 to 10.2.1982 and a total sum of Rs.23,934.90 paise has become due but despite several reminders, the payment of the said amount has not been made. A notice was served under 2 Section 80 CPC on 20.2.1984 but the amount has not been paid. Thus, the present suit has been filed for recovery of Rs. 23,934.90 paise as original amount, Rs.13,010.10 paise towards interest and Rs.55/- towards notice expenses, totaling a sum of Rs.37,000/-. 2. Defendants filed their written statements wherein the contents of the plaint were not admitted in the manner as stated. It was pleaded that now a sum of Rs. 23,919.20 paise has been paid to the plaintiff on 29.3.1985 in full satisfaction of the dues, therefore, now nothing remains to be paid by the defendants to plaintiff and the suit is liable to be dismissed. In the additional plea, it was pleaded that on 29.3.1985, it was agreed upon in between the plaintiff and the defendants that in case the defendants will make the payment of Rs.23,919.20 paise, then the plaintiff will accept it as full and final payment of dues and on the basis of aforesaid compromise, the amount was paid after taking receipt which has been placed on record. 3. It is relevant to mention that the defendants filed an application under Order 23 Rule 3 CPC in the trial court along with receipt Ex.A-1 with a prayer that the 3 entire payment of dues has been made to the plaintiff, therefore, the suit be dismissed. The trial court rejected the said application vide order dated 19.9.1987. 4. The trial court, on the basis of pleadings of the parties, framed two issues which are reproduced in para 3 of the impugned judgment. The plaintiff examined PW-1 Ashok Kumar and the defendants examined DW-1 Shyam Mohan Goyal. The trial court after considering the oral and documentary evidence available on record recorded finding in respect of issue No.1 that the payment made by defendants to plaintiff vide receipt Ex.A-1 is in full and final settlement of the dues, therefore, nothing remains to be paid by defendants to plaintiff and consequently passed the decree that the suit of the plaintiff is decreed with cost but in view of the fact that entire payment of dues has been made vide Receipt Ex.A- 1, therefore, the plaintiff will be entitled to the cost of the suit only. Aggrieved with the same, present appeal has been preferred by the plaintiff for the amount of interest only. 5. Mr. R.D.Rastogi, learned counsel for the appellant contended that the suit was filed for 4 recovery of a sum of Rs.37,000/- including the amount of interest and cost. The payment made through Ex.A-1, a receipt dated 29.3.1985, was only a part payment of the suit amount, therefore, the trial court committed illegality in not deciding the suit properly and not decreeing the suit of the plaintiff for the amount of interest. He contended that the receipt Ex.A-1 was filed by defendants along with an application to dispose of the suit but their application was dismissed by the trial court on 19.9.1987. Under these circumstances, the suit of plaintiff in respect of amount of interest should have been decreed. 6. Leaned counsel for the respondents supported the impugned judgment passed by the trial court and contended that the amount paid by defendants on 29.3.1985 was full and final payment against all dues, therefore, the appellant was not entitled for any interest. The plaintiff voluntarily waived the amount of interest and accepted the remaining amount on 29.3.1985 as final payment, therefore, there is no force in the submission of learned counsel for the appellant and appeal deserves to be dismissed. 5 7. I have considered the submissions of learned counsel for the parties and examined the impugned judgment and record of the trial court. The undisputed facts are that the plaintifff supplied the motor parts of Rs. 23,934.90 paise to defendants during the period from 1.12.1981 to 10.2.1982, the plaintiff filed a suit for Rs.37,000/-(original amount of Rs.23,934.90 paise + Rs. 13,010/- towards interest + Rs. 55/- towards legal expenses). It was on 29.3.1985, the defendants paid a sum of Rs.23,919.20 paise vide receipt Ex.A-1. The only question for adjudication is as to whether the amount paid on 29.3.1985 by defendants to plaintiff was in full satisfaction of the dues of plaintiff or it was only a part payment of the dues. According to plaintiff, it was only a part payment of the dues whereas as per defendants, this payment is in full and final satisfication of the entire dues. A bare perusal of Ex.A-1, the receipt shows that the words "SAMPURAN BHUGTAN' (entire payment), have been mentioned in it which was issued by Subhash Chand one of the partner of the plaintiff firm. Plaintiff examined PW-1 Ashok Kumar who admitted issuance of the receipt Ex.A-1 by Subhash Chand. It is 6 relevant to mention that Subhash Chand, who issued Ex.-A-1, was not examined by the plaintiff before the trial court to state that payment made by defendants on 29.3.1985 to him was not accepted by him as full and final payment against suit amount. DW-1 Shyam Mohan Goyal in his statement before the trial court specifically stated that after receipt of santioned of amount from the Government, the plaintiff was summoned on 4.3.1995 and it was agreed upon in between them that in case defendants make the payment of Rs. 23,919.20 paise then he (Subhash Chand) will receive the payment as full and final payment against plaintiff's dues and thereafter payment was made. Subhash Chand issued receipt Ex.A-1 wherein words "entire payment" have been mentioned. So far as interim order dated 19.9.1987 rejecting the application of defendants is concerned, it is relevant to mention that it was only an interim order and aforesaid order shows that defendants had made a prayer that if plaintiff is not satisfied with receipt Ex.A-1 and/ or in case plaintiff does not admit that in pursuance of compromise, the entire payment was made, then they may be given an opportunity to lead evidence in 7 this regard and the matter may be decided after recording the evidence but the said prayer was not allowed and the application was dismissed by observing that it has not been mentioned in Ex.A-1 that defendants will not recover the remaining amount. The trial court while deciding issue No.1 has observed that the meaning of words "entire payment" is that whatever amount was payable by defendants to plaintiff has been paid to the plaintiff. When payment has been made during the pendency of the suit then it will be presumed that entire payment has been made. That apart, it is relevant to mention that if the plaintiff received part payment during the pendency of the suit then it was expected from him to mention specifically in the receipt that they have only received part payment of the dues. If the words "entire payment" are read along with statement of DW-1 then it is clear beyond doubt that the full payment was made by defendants. Under these circumstances, I am satisfied that when payment was made by the defendants vide Ex.A-1 then remaining amount was waived by the plaintiff as they received the amount with clear understanding that it is full and final payment of 8 their dues. 8. In view of the above discussion, I do not find any merit in this appeal and the same is accordingly dismissed with no order as to costs. (Narendra Kumar Jain),J om,