R. S. A. No. 1615 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No.1615 of 2011 (O&M) Date of Decision : April 05, 2011 M/s Kusha Appliances, Hisar .... Appellant Vs. Guru Jambheshwar University of Science and Technology, Hisar and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Vivek Khatri, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 4503-C of 2011 : This is application for making up the deficiency in court fee. It appears that the applicant-appellant has affixed excess court fee. The Registry will examine it and will issue refund for the excess court fee, if any, in favour of applicant-appellant. Subject to the same, the application is allowed. Main Appeal : Plaintiff M/s Kusha Appliances, Hisar having succeeded in the R. S. A. No. 1615 of 2011 (O&M) 2 trial court, but having partially failed in the lower appellate court, has filed the instant second appeal. Plaintiff-appellant filed suit for recovery of Rs.3,63,501.75 i.e. Rs.3,38,141.25 as principal amount and Rs.25,360.50 as interest till filing of the suit @ 15% per annum. The plaintiff alleged that it supplied a sample cooler to the defendants and after the same was approved, the plaintiff supplied 86 coolers to the defendants, but they failed to pay the price thereof to the plaintiff. The defendants admitted supply of 77 coolers to them by the plaintiff, but denied supply of remaining 9 coolers as well as sample cooler. The defendants pleaded that the coolers could not be checked immediately on supply, because Sub Divisional Engineer (In-charge) was on leave due to marriage of his daughter. The plaintiff was asked to supply Warranty Card of specified company i.e. Crompton Greaves Limited regarding cooler kits, but the plaintiff failed to do so. The coolers were not as per specification. Cooler kits are not genuine. The plaintiff was asked to replace the same as per specifications, but the plaintiff did not do so. Various other pleas were also raised. Learned Civil Judge (Senior Division), Hisar, vide judgment and decree dated 09.11.2009, decreed the plaintiff's suit for recovery of price of 77 desert coolers along with one sample cooler and future interest @ 15% per annum. Defendants preferred first appeal against judgment and R. S. A. No. 1615 of 2011 (O&M) 3 decree of the trial court, whereas plaintiff filed cross-objections therein. Learned Additional District Judge, Hisar, vide judgment and decree dated 30.11.2010, dismissed the cross-objections filed by the plaintiff and partly allowed the appeal preferred by the defendants and decreed the plaintiff's suit for amount of 77 desert coolers less the amount of cooler kits i.e. motor and pump as per rate thereof, along with full cost of the sample cooler. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant emphasized that the delivery of the coolers was to be accepted after inspection thereof and consequently, defendants could not raise objections subsequently. The contention cannot accepted. The defendants have specifically pleaded that the cooler kits were not of the specified company. There was correspondence between the parties in this regard prior to the filing of the suit. The defendants have also explained that their Sub Divisional Engineer (In-charge) was on leave due to marriage of his daughter and so, the coolers could not be checked at the time of taking delivery. Be that as it may, the fact remains that the plaintiff was to supply coolers having cooler kits of Crompton Greaves Limited Company. The plaintiff has failed to prove that the coolers supplied by it contained cooler kits of the said company. The plaintiff has relied on cash memos of Sneha Enterprises, from which the plaintiff claimed to have R. S. A. No. 1615 of 2011 (O&M) 4 purchased cooler kits of the aforesaid Company. However, cash memos Ex.P-10 and Ex.P-11 of Sneha Enterprises, vide which the plaintiff purchased some of the cooler kits, are dated 17.06.2006, whereas the plaintiff had already supplied the coolers to the defendants vide bills dated 16.06.2006. Consequently, cooler kits purchased by the plaintiff vide cash memos Ex.P-10 and Ex.P-11 dated 17.06.2006 were obviously not used in the coolers, which were supplied by the plaintiff to the defendants. Of course, the plaintiff had also purchased some other cooler kits as well vide memos Ex.P-6 to Ex.P-8 dated 12.06.2006, 13.06.2006 and 15.06.2006 i.e. before supplying the coolers to the defendants. However, the plaintiff has not led evidence to depict that the same cooler kits were used in the coolers supplied to the defendants. The plaintiff has not examined any person from Sneha Enterprises to prove that cooler kits of the specified Company were supplied. No person from the specified Company has either been examined to depict that cooler kits installed in the coolers supplied by the plaintiff are of the said Company. In addition to the aforesaid, it is most significant to notice that in response to defendants' letter for replacing the cooler kits with cooler kits of the specified company, the plaintiff sent letter Ex.D-3 to the defendants agreeing to replace the cooler kits and requested that payment of the coolers after deducting the amount of cooler kits be made to him and thereafter, he will replace the cooler kits. This letter, wherein the plaintiff unequivocally R. S. A. No. 1615 of 2011 (O&M) 5 agreed to replace the cooler kits, would depict that the cooler kits installed in the coolers supplied by the plaintiff to defendants were not of the specified Company, as agreed. For the reasons aforesaid, I find no illegality or perversity in the finding of the lower appellate court that cooler kits in the coolers supplied by the plaintiff to the defendants are not of the specified Company and therefore, plaintiff has been rightly declined amount of the cooler kits, while decreeing the plaintiff's suit for the remaining amount of 77 coolers along with sample cooler. The aforesaid finding of the lower appellate court does not warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal being devoid of merit is therefore dismissed in limine. However, the defendants shall give back 77 cooler kits to the plaintiff. April 05, 2011 ( L. N. MITTAL ) monika JUDGE