R.S.A. No.998 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH REGULAR SECOND APPEAL No.998 of 2008 DATE OF DECISION: 7 th APRIL, 2011 Haryana Tourism Corporation Limited .... Appellant Versus Raman Kalia .... Respondent CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Sushil Jain, Advocate for the appellant. Mr. Subhjot Singh Chadha, Advocate for the respondent. * * * * L.N. MITTAL, J. (ORAL) Plaintiff – Haryana Tourism Corporation Limited having failed in both the courts below has filed the instant second appeal. Case of the plaintiff is that it appointed defendant-respondent Raman Kalia as Boat Advisor/Consultant. The plaintiff proposed to purchase some boats for Badhkhal Lake, Faridabad, in May, 1992. Defendant's advice was sought for design and specifications for the boats, being expert in the field. Based on it, tender notice was issued. The defendant was also associated in evaluation of the tenders. On defendant's recommendation, order for purchasing five boats was placed with M/s. Cleghorn & Company, Calcutta (in short the Company), at a total cost of Rs.1,04,500/-. The defendant inspected the sample boat on 23.12.1992 in the premises of the Company and suggested some changes. Defendant again inspected the sample boat on 29.03.1993 in the premises of the Company at Calcutta and approved the same. Thereupon, R.S.A. No.998 of 2008 -2- plaintiff released 90% of the price of the boats to the Company. Boats were received at Badhkhal Lake on 14.07.1993. However, the boats were found damaged during transportation. At plaintiff's asking, the Company repaired the boats. However, when the boats were put to use, they were not found water worthy and, therefore, the boats could not be utilized. When the matter was taken up with the Company, the latter responded vide letter dated 15.09.1998 that the boats were strictly in accordance with the design and specifications given by the defendant and, therefore, the Company expressed its inability to do anything to make the boats water worthy. The plaintiff also got the boats examined from another expert namely Kailash Nath. He also reported that the boats were not water worthy because of defective design. The plaintiff thus suffered loss on account of fault of the defendant. Inspite of show cause notices issued to him, the defendant failed to explain the same. Accordingly, plaintiff filed suit for recovery of Rs.1,20,000/-. The defendant inter alia pleaded that he was appointed for technical advice for water sports activities. He was not empowered to recommend or to place purchase order. Defendant admitted that he inspected the boats at the premises of the Company. However, the boats, when received, were found badly damaged in transit due to improper packing by the Company or mishandling by the transporter. The boats in question were not repaired by the Company till the defendant remained with the plaintiff. The boats became unworthy of being used on account of damage suffered in transit. The suit was also alleged to be time barred. Various other pleas were also raised. Learned Civil Judge (Junior Division), Chandigarh vide judgment and decree dated 14.02.2007 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has also been dismissed by learned Additional District Judge, R.S.A. No.998 of 2008 -3- Chandigarh vide judgment and decree dated 06.12.2007. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that the defendant was appointed by the plaintiff as Boat Adviser/Consultant and based on his advice, the plaintiff purchased the disputed boats which were found not water worthy because of defective design as advised and recommended by the defendant and, therefore, the defendant is liable to compensate the plaintiff for the loss suffered by the plaintiff on this ground. On the other hand, learned counsel for the respondent contended that the defendant-respondent was not competent to give the advice regarding design and specifications of the boats. It was also contended that the boats became unworthy of use on account of damage suffered in transit and also because the same remained unused for a long period and there was no lapse on the part of the defendant-respondent. I have carefully considered the rival contentions. Proposal Exhibit P-9 initiated by the plaintiff for appointment of the defendant as Boat Adviser reveals that it was known to the plaintiff that defendant had no experience in the field of consultancy for purchase of various types of water sports equipment nor knowledge of suppliers of sports equipment, although he had experience in the field of water sports. Thus even before appointment of defendant as Boat Advisor/Consultant, the plaintiff very well knew that the defendant was not expert in the field of water sports equipment. Consequently the plaintiff could not depend solely on the alleged advice of the defendant for the design and R.S.A. No.998 of 2008 -4- specifications for the boats to be purchased. The defendant cannot be said to be expert in the said field as he neither had any education or training in that field nor he had any experience therein. Inspite thereof, if the plaintiff thought it fit to avail of the advice of the defendant, the plaintiff has to blame itself. The plaintiff did so at its own peril. In addition to the aforesaid, admittedly the boats suffered extensive damage in transit. Consequently the boats could have become unworthy of use in water on account thereof. The plaintiff has relied heavily on report of alleged expert Kailash Nath to fasten the defendant with liability on the ground that design and specifications recommended by the defendant were defective. However, said Kailash Nath has not been examined as witness by the plaintiff so as to afford opportunity to the defendant to test the veracity of the opinion of Kailash Nath by his cross-examination. Consequently strong adverse presumption arises against the plaintiff. Apart from the above, Kailash Nath examined the boats in May, 1997 i.e. almost four years after the boats had been delivered to the plaintiff on 14.07.1993. It has been concluded by Kailash Nath in report Exhibit P-23 as under: “All the five boats are not in a water worthy condition. These are lying unused since their reception. Their stacking in the open without shelter and exposure to the sun, rain and weather have deteriorated their condition beyond repairs. All these five boats are, therefore, condemnable.” The aforesaid conclusion further negatives the plaintiff's claim. It is correct that Kailash Nath also opined in his report that the designs are not fit for R.S.A. No.998 of 2008 -5- manually propelled boats. However, it has also been concluded by Kailash Nath that the boats are not in water worthy condition because the same remained lying unused since their reception, in open, without shelter, and exposed to sun, rain and water, causing deterioration beyond repairs. For this added reason also, the plaintiff cannot succeed. The defendant was also not associated when Kailash Nath inspected the boats. For this reason also, report given by Kailash Nath behind the back of defendant cannot be used against him and more particularly because Kailash Nath has not stepped in to the witness box. For the reasons aforesaid, there is no infirmity or perversity in the finding recorded by the courts below that the plaintiff is not entitled to recovery of the suit amount from the defendant. The said finding is based on proper appreciation of evidence and is supported by various reasons recorded by the courts below. Plaintiff simply examined its official to prove its case. His testimony is not sufficient to prove the plaintiff's case because he had no knowledge about the design and specifications of the boats. Finding recorded by the courts below is not shown to be perverse or illegal nor it is based on misreading or mis-appreciation of evidence. Consequently the said finding does not warrant interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in the instant second appeal. In addition to the aforesaid, the suit is also hopelessly barred by limitation. The boats were received by the plaintiff on 14.07.1993. Since inception, the boats were found to be not worthy of use. Consequently cause of action arose to the plaintiff immediately on receipt of the defective boats. However, the suit was filed on 30.07.1999 i.e. after expiry of six years in stead R.S.A. No.998 of 2008 -6- of limitation period of three years. The plaintiff remained completely silent for about four years since the receipt of the boats on 14.07.1993 till May, 1997 when the boats were inspected by Kailash Nath. Courts below have, therefore, rightly held that the suit is barred by limitation. For the reasons aforesaid, I find no merit in the instant second appeal, which is accordingly dismissed. (L. N. MITTAL) JUDGE 7th April, 2011 'raj'