Regular Second Appeal No.4365 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.4365 of 2008 Date of decision: 14.07.2009 M/s Amar Singh & Sons, Tilak Bazar, Hisar, through its Proprietor, Shri Amar Singh. ..... Appellant. Versus 1.Haryana State through Collector, Hisar. 2.Financial Commissioner and Secretary to Government, Haryana, Animal Husbandry Department, New Sectt. Sector 17, Chandigarh. 3.The Director of Animal Husbandry, Haryana, Chandigarh. 4.Milk Commissioner, Haryana, Sector 6, Panchkula. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:-Mr. B.R. Gupta, Advocate for the appellant. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 17.03.2007, rendered by the Court of Civil Judge (Senior Division), Hisar, vide which it dismissed the suit of the plaintiff, for rendition of accounts and the Regular Second Appeal No.4365 of 2008 2 judgment and decree dated 29.04.2008,rendered by the Court of District Judge, Hisar, vide which it dismissed the appeal against the judgment and decree of the trial Court. 2. Shorn off unnecessary details, the relevant facts of the case, are that Amar Singh, is the sole proprietor of the plaintiff concern, dealing in Vety. Medicines at Hisar. The plaintiff being an approved source of medicines etc. supply the same, to the Central Government, Haryana Govt. the Haryana Agricultural University, Hisar, and the National Dairy Research Institute, Karnal. The Director, Animal Husbandry, Haryana, Chandigarh, and the Milk Commissioner, Haryana, Panchkula had placed orders for the supply of medicines, with the plaintiff, in the year 1996. The plaintiff supplied the medicines against those orders, from time to time, vide different bills, which provided that, in case of any delay, in payment, after 21 days of raising the same, the plaintiff shall be entitled to interest at the rate of 24% per annum. It was further stated that, as per the Government instructions, in case of any delay, on the part of the supplier, to supply the goods, penalty at the Regular Second Appeal No.4365 of 2008 3 rate of 2% per month could be recovered. It was further stated that actually the purchasers had collected the penalty at the rate of 2% per month, from the plaintiff, as and when there was some delay, in supplying the goods. It was further stated that the plaintiff raised various bills worth Rs.28,03,728.71 Paisa in respect of the medicines supplied by it, to the Director of Animal Husbandry, Haryana, Chandigarh, in the year 1996. The department, however, pegged the price of these medicines at Rs.27,65,609/-. Then the plaintiff raised another bill amounting to Rs.4,16,618.22 paisa, in respect of the medicines, supplied by it to the Milk Commissioner, Haryana, Panchkula, in the year 1996, but the department pegged the price of those medicines at Rs.4,09,409/-. Both the departments did not release the aforesaid amount, because of a false complaint, filed by Dr. P.S. Gaur, former Milk Commissioner, Haryana, which was inquired by the Flying Squad of the Chief Minister, Haryana, Chandigarh, and also the Vigilance Department, Haryana, Chandigarh. It was further stated that the said enquiry was finalized, in the year 1999, Regular Second Appeal No.4365 of 2008 4 in which it was found that Dr. P.S. Gaur, was in the habit of making false complaints and the complaint made by him, in the instant case, was also proved to be false and frivolous. The Government of Haryana decided vide letter dated 5.5.1999 that payment of the plaintiff be released and for delayed payment, interest be paid. It was further stated that despite this decision, various representations were made for payment by the plaintiff. Legal notice, through his Counsel, was also sent by the plaintiff for payment of interest on the amount of price of goods paid after delay, but the same was not made. Thereafter, the plaintiff filed a Civil Writ Petition no. 5308 of 2002, in this Court. It was further stated that during the pendency of that Writ Petition, the defendants paid the principal amount of Rs.1,35,875/- in the month of December 2002 and Rs.2,74,017/- in the month of February, 2003 to the plaintiff. It was further stated that the above said Writ Petition was disposed of, by this Court, vide order dated 10.02.2003, with liberty to the plaintiff, to approach the Civil Court, for grant of interest, in accordance with the provisions of Regular Second Appeal No.4365 of 2008 5 law. It was further stated that the plaintiff became entitled to interest, at the rate of 24% per annum on the delayed payments, after the expiry of a period of 21 days from the date of supply of medicines till 05.02.2003, when the last payment was made. Despite issuance of notice under Section 80 of the Code of Civil Procedure, the defendants failed to make the payment of the same. Left with no alternative, a suit for rendition of accounts, was filed. 3. The defendants, put in appearance, and contested the suit, by way of filing their joint written statement. They pleaded therein that the suit in the present form was not maintainable; that the plaintiff had no locus standi to file the suit; that the Civil Court had no jurisdiction, to entertain and try the suit; and that the suit was bad for non-joinder and mis-joinder of necessary parties. It was admitted that the plaintiff concern was dealing in veterinary medicines, but it was denied for want of knowledge that Amar Singh, was the sole proprietor of the said concern at the relevant time. It was stated that the orders for the supply of medicines were not placed by the Regular Second Appeal No.4365 of 2008 6 answering defendants, with the plaintiff. Rather the same were placed by the defendants, with the manufacturer company of Karnataka. It was further stated that, accordingly, the manufacturers supplied the medicines to the concerned department, through the plaintiff. It was further stated that the plaintiff raised bills, on behalf of the manufacturers. It was further stated that there was no privity of contract between the plaintiff, and the defendants, regarding the payment of interest at the rate of 24% per annum, on the delayed payments. It was further stated that defendant no.3 had paid the price of medicines to the tune of Rs.27,65,609/- as per the quantity of medicines, supplied to him. It was further stated that defendant no.4 also paid the price of purchased medicines, to the tune of Rs.4,09,892/-. It was further stated that the payment was stopped, as per the decision of Government, after receipt of a complaint, made by Dr. S.P. Gaur, the then Milk Commissioner, Haryana. It was further stated that the Court fee had not been affixed, on the plaint. The remaining averments were denied. Regular Second Appeal No.4365 of 2008 7 4. From the pleadings of the parties, the following issues, were framed, by the trial Court on 07.10.2003:- “1- Whether the plaintiff is entitled to rendition of accounts as prayed in the plaint ?OPP 2- Whether the plaintiff is entitled to get mandatory injunction for directing the defendants to make the payment of the amount found due towards the plaintiff alongwith future interest @ 12% P.A. ?OPP 3- Whether the suit is not maintainable in the present form ?OPD 4- Whether the plaintiff has no locus standi to file the suit ?OPD 5- Whether the suit is not maintainable ?OPD 6- Whether the plaintiff has concealed material facts from the Court ?OPD 7- Whether the Civil Court has no jurisdiction to try the suit ?OPD 8- Relief.” 5. The parties led evidence in support of their case. The trial Court after hearing the Counsel for the parties, and on going through the Regular Second Appeal No.4365 of 2008 8 evidence and record of the case, decided issue nos.1 and 2 against the plaintiffs. Issue nos. 3 to 5 were decided in favour of the defendants. Issue no.7 was decided against the defendants, being not pressed. Ultimately, the trial Court dismissed the suit. 6. Feeling aggrieved, against the judgment and decree dated 17.03.2007, passed by the trial Court, the appellant filed an appeal before the Appellate Court at Hisar, which vide its judgment and decree dated 29.04.2008 dismissed the same. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed by the appellant. 8. I have heard the Counsel for the appellant, and have gone through and perused the documents, on record, carefully. 9. The Counsel for the appellant submitted that, no doubt, there was a privity of contract between the defendants and M/s Karnataka Antibiotics & Pharmaceuticals Ltd. Bangalore for the supply of medicines. He further submitted that the said Company authorized the plaintiff to supply Regular Second Appeal No.4365 of 2008 9 the medicines, to the defendants, being its stockist. He further submitted that whatever goods were supplied, through the bills, by the plaintiff, to the defendants, the payment used to be made to him. He further submitted that, as such, the plaintiff, was competent to file the suit, even without impleading M/s Karnataka Antibiotics & Pharmaceuticals Ltd. Bangalore, as a party. He further submitted that since the sum was not ascertainable, a suit for rendition of accounts, was maintainable. He further submitted that the judgments and decrees of the Courts below dismissing the suit of the plaintiff were, thus, illegal and liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the appellant, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. Admittedly, there was no privity of contract, between the plaintiff and the defendants, regarding the supply of goods. The contract regarding the supply of goods, was between the defendants, and M/s Karnataka Antibiotics & Pharmaceuticals Ltd. Regular Second Appeal No.4365 of 2008 10 Bangalore. If M/s Karnataka Antibiotics & Pharmaceuticals Ltd. Bangalore authorized the plaintiff, as stockist, to supply the goods, in pursuance of the contract, which was entered into by it, with the defendants, and any claim arose, with regard to the price or interest on the delayed payments, then only M/s Karnataka Antibiotics & Pharmaceuticals Ltd. Bangalore, could file a suit, for recovery. The plaintiff had no locus standi to file the suit. The Courts below were, thus, right in holding so. 11. Even vide letter (Ex.P13), dated 03.02.1998, the plaintiff raised a demand of Rs.28,03,728.71 plus interest of Rs.16,67,025/- against the Director, Animal Husbandry and Rs.4,16,618.22 plus interest of Rs.2,61,857/- against the Milk Commissioner, Haryana, Panchkula, upto December, 1998. The price of the goods, was ascertainable from the bills. The price which was paid by the defendants from time to time, against those bills, to the plaintiff, on behalf of M/s Karnataka Antibiotics & Pharmaceuticals Ltd. Bangalore, was also ascertainable. Since the amount was ascertainable, the plaintiff wrote Regular Second Appeal No.4365 of 2008 11 letter (Ex.P13) demanding the same with interest. It could not be said that the amount being unascertainable, no suit for recovery could be filed, but only a suit for rendition of accounts, was maintainable. With a view to avoid the payment of requisite Court fee, the plaintiff resorted to the subterfuge by filing a suit for rendition of accounts. Under these circumstances, the suit for rendition of accounts was not maintainable. The Courts below were, thus, right in holding so. 12. The concurrent findings of fact, recorded by the Courts below, that the plaintiff had no locus standi to file the suit as no contract was entered into between it and the defendants, but on the other hand, the contract was only entered into between the defendants and M/s Karnataka Antibiotics & Pharmaceuticals Ltd. Bangalore, which could only file the same (suit) and that the sum being ascertainable, a suit for rendition of accounts was not maintainable, being based on the correct appreciation of evidence and law, on the point, do not suffer from any illegality or perversity and, thus, warrant no interference. The judgments and decrees of the Regular Second Appeal No.4365 of 2008 12 Courts below, are liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected. 13. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 14. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed with costs. ( Sham Sunder ) July 14, 2009 Judge dinesh