^.^A\ IN THE HIGH COURT OF JUDICATURE AT BILASPUR. CHHAHISGARH ^. - J20^ FIRST APPEAL ^IVI^NO. ^ 3> /^Ol5)gj| APPELLANT Defendant No.3 RESPONDENT Plaintiff N0.1 RESPONDENT N0.2 Defendant No.l RESPONDENT N0.3 Defendant No. 2 CF- H Office of the Chief Executive Officer, Janpad Panchayat, Dongargaon, District Rajnandgaon, Chhattisgarh, Through: Shri Kurre, Chief Executive Officer, Janpad Panchayat, Dongargaon, District Rajnandgaon, Chhattisgarh ^U-M Versus Ajay Shrivastava, S/o. Late Shrj G.L. Shrivastava, aged about 40 years, Office: Director and Proprietor, Adarsh Kiraya Bhandar, Deewanpara, Gandhi Chowk, Rajnandgaon, District Rajnandgaon, Chhattisgarh State of Chhattisgarh, Through: The District Magistrate, Rajnandgaon, District Rajnandgaon, Chhattisgarh District Women & Child Development Officer, Rajnandgaon, District Rajnandgaon, Chhattisgarh (*^^ FIRST APPEAL UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE niVII ^IUTVAI U^^^" ^ HIGH COURT QF CHHATTISGARH AT BILASPUR F.A. No.83/2011 APPELLANT Defendant No.3 RESPONDENTS Office of the Chief Executive Officer. Versus Ajay Shrivastava and 2 others. S.B. : HQN»BLESHRI N.K. AGARWAL, J PRESENT:- Shri Rahul Tamaskar, counsel for the appellant. Shri Sanjay K. Agrawal with Shri Sourabh Sharrna, counsel for respondent No.l. Shri G.D.Vaswani, G.A. for respondent No.2 ORAL JUDGMENT (14.09.2011) The First Appeal filed under Scction 96 of the Code of Civil Procedure(for short 'the C.P.C/) is directed against the judgment and decree dated 16.07.2010 passed in Civil Suit No.l-B/2007 by the 1st Additional District Judge, Rajnandgaon. 2. Facts of the case in brief are as under: i) Suit for recovery of Rs.1,00,500/- inclusive of interest amount of Rs.32,225/- and notice of expenses of Rs.350/- was filed by the plaintifY a.gainst the appellant and respondents No.2 & 3 inter alia on the ground: against the supply of 32,850 lunch packets on the occasion of International Women's day, the appellant has paid only Rs.80,000/- and is not paying balance amount despite his repeated demands. •^ .^ •^y \ ff ii) The claim was contested by the defendants inter alia on the grounds: the supply order was given .only for supply of 25,000 lunch packets; the plaintiff did not submit evidence regarding supply of above 25,000 lunch packets; there was no agreement with the plaintiff for supply of 32,850 lunch packets; defendants are not liable to compensate the plaintiff for alleged excess supply of 7850 lunch packets. iii) The trial Court decreed the plaintiffs suit along with interest @ 6% per annum from the date of institution of suit till its payment and cost finding inter alia: the plaintiff has successfully proved supply of 32,850 lunch packets on the occasion of International Women's day. 3. Shri Rahul Tamaskar, learned counsel appearing for the appellant, while admitting plaintiffs claim with regard to unpaid amount of Rs.32,500/- towards supply of 25,000 lunch packets, would submit: in the absence of any contract or supply order with regard to 7850 lunch packets alleged to be supplied by the plaintiff over and above contractual quantity, the appellant and respondent No.2 cannot be held responsible for its payment and the trial Court has fallen in error in decreeing the suit so far as supply of 7850 lunch packets is concerned. 4. On the other hand, Shri Sanjay K. Agrawal with Shri Sourabh Sharma, learned counsel appearing for respondent No.l/plaintiff would submit: respondent No.l has supplied the above additional lunch packets on verbal instructions of one Mr. Netam, and therefore, the learned trial Court has not committed any error in decreeing the suit with respect to supply of above additional lunch packets. 5. I have heard learned counsel for the parties and perused the judgment and decree including record of the trial Court. 6. The core question, therefore, arises for determination of this Court is whether the appellant can be held responsible for payment of cost of 7850 lunch packets to the plaintiff even in the absence of contract? 7. Indisputably, no supply order was given by the appellant or respondent No.2 for supply of additional quantity of 7850 lunch packets as claimed by the plaintiff nor the above packets were handed over by the plaintiff to the appellant or his authorised representative. As per plaintiff, he supplied the above packets on the verbal instructions of one Mr. Netam. Neither Mr. Netam was examined as witness in the case by the plaintiff nor it is shown Mr. Netam was authorised by the appellant to give verbal instructions to the plaintiff with regard to supply of lunch packets. In the absence whereof, the appellant and respondent No.2 cannot be held responsible for payment of cost of above lunch packets. 8. In view of above, in my considered opinion, the trial Court has fallen in error in decreeing the suit with respect to price of alleged supply of 7850 lunch packets amounting to Rs.35,325/-. 9. For the foregoing, the appeal is allowed in part. The decree is modified and now respondent No.l/plaintiff is entitled for Rs.32,500/- only in place of Rs.67,825/- along with interest @ 6% per annum from 13.04.2007 till its actual payment. The plaintiff is also entitled for proportionate cost of the suit. 10. Learned counsel appearing for the appellant submits that the entire amount has been deposited by the appellant before the trial Court. If that be so, the same shall be adjusted against the amount of decree. No order as to costs. 11. A decree be drawn accordingly. Sd/- N.K. Agarwal Judge ^».