R.S.A. No. 3748 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3748 of 2008 (O&M) Date of decision: 21.11.2008 M/s Oswal Spinning and Weaving Mills Ltd. and another ..Appellants v. M/s Emco Switchgears Pvt. Ltd., Chandigarh .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Piyush Kant Jain, Advocate for the appellants. Mr. Kasturi Lal, Advocate for the caveator- respondent. .. Rajesh Bindal J. The defendants are in second appeal before this court against concurrent finding of fact by both the courts below, whereby the suit filed by the respondent - plaintiff for recovery of Rs. 33,226/- was decreed. Briefly, the facts are that the appellants-defendants placed an order with the respondent-plaintiff for supply of Synchronising Panel, which was to be manufactured as per the specific requirement of the appellants-defendants. As per the terms, 25% of the value of the machinery was to be paid in advance; 70% at the time of receipt of delivery of the machinery and balance 5% was to be paid within 30 days of the receipt of machinery after evaluating its performance. The machinery was despatched by the respondent-plaintiff to the appellants-defendants vide invoices dated 4.6.1997 and 22.8.1997 by raising bills of Rs. 3,08,050/- and Rs. 45,450/- respectively. The machinery was inspected before the delivery thereof was taken at the site of the respondent-plaintiff. As per the terms settled between the parties, Rs. 76,250/- were paid initially and after receipt of delivery of the machinery, Rs. 2,16,550/- and Rs. 38,250/- were paid vide DD No. 387630 dated 23.5.1997 and cheque No. 605514 dated 19.8.1997 respectively. As the balance amount of Rs. 22,450/- was not paid within the stipulated period, i.e., 30 days after receipt of delivery of the machinery, the suit came to be filed claiming interest thereon. Both the courts below found that the claim made by the respondent- plaintiff was justifiable and accordingly, decreed the suit. Learned counsel for the appellants-defendants submitted that defect in the machinery was found as it could not effectively synchronise with three R.S.A. No. 3748 of 2008 [2] diesel generating sets installed by the appellants for the purpose of which Synchronise Panel was purchased by the appellants-defendants. They have to spend substantial amount to carry out the repairs. Many times, the defects could not be found merely on inspection but are noticed when machine is used for some time. However, the contention raised is found to be misconceived. As per the terms settled, as noticed by the learned court below, balance 5% of the consideration money was to be paid within 30 days of the delivery of machinery after evaluating its performance. It is not in dispute that before taking the delivery of machinery, the same was inspected by the representatives of the appellants- defendants on 27.5.1997, as is established from inspection report (Ex. P4). It was only vide letter dated 12.6.1998, for the first time, that the appellants raised the issue of machinery being defective with the plea that they were not getting advantage from the panel as per their requirement. There was no convincing evidence led by the appellants-defendants except the oral statement of Mr. R.P. Singh-DW2 to substantiate the plea that the panel supplied by the respondent- plaintiff was not as per the specification. No technical person or report was produced. The first complaint also having been lodged nearly one year after the receipt of delivery of the machinery certainly shows that the appellants- defendants were not entitled to retain the balance 5% of the consideration money and accordingly, the learned courts below have rightly decreed the suit of the respondent-plaintiff. No substantial question of law arises. Accordingly, the appeal is dismissed. (Rajesh Bindal) Judge 21.11.2008 mk