R.S.A. No. 2404 of 2011 (O&M) [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 2404 of 2011 (O&M) Date of Decision: November 17,2011 M/s Cargo Motors Pvt. Ltd. ............................ Appellant versus M/s Janta Coach Builders and another ........ Respondents Coram: Hon'ble Ms. Justice Ritu Bahri Present: Mr. Arun Kumar Bakshi, Advocate for the appellant. ... RITU BAHRI, J. This is a Regular Second Appeal against the judgment and decree dated 15.1.2011 whereby the appeal against the judgment and decree dated 4.11.2009 passed by the Court of Civil Judge (Sr.Dvin.) Jalandhar has been dismissed. Plaintiff-M/s Cargo Motors Pvt. Ltd. is dealing in the sale and service of Tata vehicles and looks after the hire purchase business of its principals i.e. M/s Tata Motors in the area for which the company grants the dealership. The R.S.A. No. 2404 of 2011 (O&M) [ 2 ] plaintiff has filed suit for recovery of `13,44,000/- against the defendants i.e. M/s Janta Coach Builders and M/s Pritam Bus (P) Ltd. Defendant No.2 purchased two Tata Chassis i.e. Model LP1512TC/52, Chassis No. 412 060MWZO 07272, Engine No. 30 L623 01504 and Model LP 1512TC/52, Chassis No. 412 060MWZO 07273 and Engine No. 30 L623 0150 on the basis of invoice Nos. 1445 and 1446, both dated 7.1.2004. Defendant No.2 was provided finance by M/s Tata Finance Ltd. Defendant No.2 approached the plaintiff company for financing the fabrication of bus bodies on the chassis. The fabrication of the bus bodies was to be done by defendant No.1. The plaintiff company paid `12 lacs to defendant No.1 for the said purpose. On 7.1.2004 defendant No.1 received a sum of ` 12 lacs from the plaintiff without fabricating the bus bodies for the said two chassis hired by defendant No.2 by Tata Finance Company Ltd. In the above background, the suit was filed. On notice, the defendant No.1 filed written statement taking the preliminary objection that the suit was not maintainable. There is no privity of contract between the plaintiff and defendant No.1. It was denied that defendant No.2 had purchased two Tata Chassis from the plaintiff and that Tata Finance Limited had provided finance to defendant No.2. The defendant never took amount of `12 lacs from the plaintiff company. It was not denied that estimate for R.S.A. No. 2404 of 2011 (O&M) [ 3 ] fabricating the bus bodies was obtained by representative of defendant No.2. No one appeared on behalf of defendant No.2 despite service. He was proceeded ex-parte vide order dated 4.6.2007. Replication was filed by the plaintiff controverting the averments made in the written statement. The following issues were framed:- 1.Whether the plaintiff is entitled for recovery of suit amount along with interest as prayed for? OPP 2.Whether the suit is not maintainable in the present form? OPD 3.Whether the plaintiff is estopped from filing the present suit? OPD 4.Whether the suit is bad for misjoinder of necessary parties? OPD 5.Whether there exists no privity of contract between the plaintiff & defendant No.1 ? OPD 6.Whether there is collusion between the plaintiff & defendant No.2? OPD. 7.Relief. After going through the evidence led by the plaintiff and the defendants, the trial Court has come to the conclusion that defendant No.2 had purchased two Chassis R.S.A. No. 2404 of 2011 (O&M) [ 4 ] from the plaintiff company on finance by M/s Tata Finance Ltd. As per Bills Exs. PW3/A and PW3/B the vehicle was sold body built and the vehicle has been purchased on 7.1.2004. As the bills submitted by defendant No.1 are of 6.1.2004, it cannot be believed that the body was fabricated on 6.1.2004 for a vehicle which was purchased on 7.1.2004. These bills were held to be quotations just to tell the cost of fabrication. The payment of `12 lacs shown as loan in the account of defendant No.2 has been adjusted subsequently. The amount has been shown to be a loan in the account of defendant No.2 and the same was eventually received by the plaintiff. There is no balance against defendant No.2. The Chassis of the vehicle were purchased by defendant No.2 by taking loan from M/s Tata Finance Ltd. and not from the plaintiff. The loan given by the plaintiff to defendant No.2 stood adjusted and nothing was balance against defendant No.2. There was no claim by defendant No.1 for fabrication of the body of chassis. As per the evidence of PW1 and PW2 the Chassis were never handed over to defendant No.1 for fabrication. There was no document to show that any loan had been given to defendant No.1 by the plaintiff. Hence, the finding on issue No.1 was returned against the plaintiff. In view of the finding given on issue No.1, issues No. 2, 3 and 4 were decided against the plaintiff. Since there was no privity of contract between the R.S.A. No. 2404 of 2011 (O&M) [ 5 ] plaintiff and defendant No.1, the suit was dismissed. On appeal, these findings have been affirmed by the Appellate Court. After hearing counsel for the appellant and going through the record, it is held that the invoices (Exs.P3 and P4) were issued by defendant No.1 regarding the estimated cost of fabrication on 6.1.2004. As per the ledger book accounts (Exs. P7, P8 and P9) the advancement of such amount has been shown to have been made to defendant No.2. No liability can be fastened on defendant No.1 qua `12 lacs. PW2-Amar Chand in his cross-examination has admitted that no payment had been made to defendant No.1. As per the ledger book account (Ex.P12) the accounts of debit and credit have been shown to have become nil on 7.1.2004. `12 lacs which have been shown in the accounts book of defendant No.2 stood adjusted. There is no balance against defendant No.2. This fact is corroborated by the statement of account (Ex.P-13). Amount has been duly adjusted in the ledger book qua defendant No.2. There is no privity of contract between the plaintiff and defendant No.1 on the file. The payment made by Amar Chand to the fact that plaintiff had not made any payment to defendant No.1 clinches the issue that defendant No.1 was not liable to pay back `12 lacs to the plaintiff. No substantial question of law arises for R.S.A. No. 2404 of 2011 (O&M) [ 6 ] consideration by this Court. The Regular Second Appeal is dismissed. ( RITU BAHRI ) 17.11.2011 JUDGE rupi