R. S. A. No. 4828 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4828 of 2009 (O&M) Date of Decision : February 19, 2010 Advance Valves Pvt. Ltd., Noida .... Appellant Vs. Kirloskar Pneumatics Ltd. Faridabad .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Harkesh Manuja, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 14337-C of 2009 : For the reasons mentioned in the application, which is accompanied by affidavit, delay of 61 days in re-filing the appeal is condoned. Main Appeal : Defendant has filed the instant second appeal having remained unsuccessful in both the courts below. Respondent-plaintiff filed suit for recovery of Rs.4,50,000/- against the defendant-appellant under Order 37 of the Code of Civil Procedure. The plaintiff alleged that it's Deputy General Manager (Law) Mr. D. N. Kaul has been authorized by the plaintiff company vide resolution dated 24.01.2000 to file the suit. The defendant placed various purchase R. S. A. No. 4828 of 2009 (O&M) 2 orders with the plaintiff for supply of unmachined iron castings. The plaintiff accordingly supplied the requisite material on credit. The defendant made part payments. Against outstanding amount, the defendant issued cheque no.606633 dated 09.12.2000 for Rs.2,44,098/- and cheque no.606634 dated 30.12.2000 for Rs.1,57,395/-, but the said cheques, on presentation, were dishonoured vide bank memos dated 14.12.2000 and 05.01.2001 as the drawer had stopped payment thereof. Plaintiff issued demand notice to the defendant. The defendant failed to make payment of the cheque amounts. Accordingly, a sum of Rs.4,27,503/- was outstanding against the defendant. The plaintiff also claimed interest amount of Rs.22,497/- on the outstanding amount @ 18% per annum. The defendant admitted that it had placed orders with plaintiff company for making unmachined iron castings. The defendant had supplied patterns to the plaintiff for manufacturing the iron castings as per requirements. The defendant asked the plaintiff to return the said patterns and on assurance of the plaintiff that the patterns would be returned, the defendant issued cheques to the plaintiff. However, the plaintiff did not return the patterns and for this reason, the defendant instructed its bank to stop payment of the cheques in question, for which the plaintiff was informed in advance. The defendant suffered huge losses on account of non-return of its patterns by the plaintiff company. The defendant had even issued two fresh cheques dated 15.12.2000 for Rs.2,44,098/- and Rs.1,74,043/-. However, the plaintiff still did not return the patterns to the defendant worth Rs.2,91,795/-. In addition thereto, on account of late delivery of the material by the plaintiff to the defendant, the defendant's customers deducted an amount of Rs.1,04,462/-, which is liable to be adjusted from the amount due to the plaintiff. The defendant sent two cheques dated 02.11.2001 for Rs.21,884/- and Rs.4,476/- to the plaintiff towards full and final settlement with the plaintiff company. Learned Additional Civil Judge (Senior Division), Faridabad , R. S. A. No. 4828 of 2009 (O&M) 3 vide judgment and decree dated 24.12.2007, decreed the plaintiff's suit partly for recovery of Rs.4,27,503/- with pendente lite and future interest @ 9% per annum. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Faridabad, vide judgment and decree dated 06.01.2009. Feeling aggrieved, the defendant has preferred the instant appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that resolution Ex.P-1, passed by the plaintiff company authorizing Mr. D. N. Kaul, DGM (Law) to file the suit on behalf of the plaintiff, has not been duly proved. The contention cannot be accepted because Mahesh Srivastav (PW-1), who proved this resolution Ex.P-1, has not even been cross- examined relating to the said resolution. Accordingly, the defendant impliedly admitted the correctness of the said resolution. Moreover, the defendant in the written statement has not taken any objection regarding the authority of Mr. D. N. Kaul to file the suit on behalf of the plaintiff company. On the other hand, contents of paragraph 1 of the plaint in this regard were simply denied for want of knowledge in corresponding paragraph 1 of the written statement. For these reasons, the aforesaid contention cannot be accepted. Both the courts below, after appreciating the evidence, have come to concurrent finding of fact that the suit amount, for which the suit has been decreed, is due from the defendant to the plaintiff. The defendant had even issued cheques for the said amount. The defendant has failed to prove its version that the patterns of the defendant were not returned by the plaintiff or that there was late delivery of the material by the plaintiff causing loss to the defendant. In view thereof, the plaintiff had to succeed because the defendant has admitted that it had placed orders with the plaintiff for supply of material and the plaintiff had supplied the material to R. S. A. No. 4828 of 2009 (O&M) 4 the defendant. Concurrent finding of the courts below is based on proper appreciation of evidence and is not shown to be perverse or illegal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. For the reasons aforesaid, the appeal is found to be without any merit and is accordingly dismissed in limine. February 19, 2010 ( L. N. MITTAL ) monika JUDGE