R.S.A.No. 3536 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3536 of 2009 (O&M) Date of decision: 5.10. 2009 The Bhogpur Cooperative Sugar Mills Ltd. Bhogpur ......Appellant Versus Vijay Kumar Sondhi .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Rahul Sharma, Advocate, for the appellant. **** SABINA, J. Plaintiff Vijay Kumar Sondhi filed a suit for recovery of Rs. 96344/-, which was decreed with costs for recovery of Rs.62,561/- along with interest @ 12% per annum by the Additional Civil Judge (Sr.Divn.), Phagwara vide judgment and decree dated 24.8.2007. In appeal, the said judgment and decree were upheld by the Additional District Judge, Kapurthala vide judgment and decree dated 22.12.2008. Hence, the present appeal by the defendant. R.S.A.No. 3536 of 2009 (O&M) 2 Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 4 of its judgment, are as under:- “2. The plaintiff has filed the suit against the defendant for recovery of Rs.96,344/- against defendant the Bhogpur Cooperative Sugar Mills Ltd. Bhogpur, District Jalandhar, Punjab. 3. It is pleaded by the plaintiff that he is carrying on his business under the name and style of M/s V.S.Industries, G.T.Road, Phagwara, and deals in the supply of lime. In reply to the quotations submitted by the plaintiff, the Punjab State Federation of Cooperative Sugar Mills Limited, Chandigarh, placed Order No.PSF/Lime/A-2/97/74-75 dated 21.10.1997 for the supply of 440 M.T.Lime at the rate of Rs.2150/- M.T. to the defendant. The said order was also confirmed by the defendant and in response to the said order, the plaintiff supplied quick lime to the defendants vide the following bills:- Bill No.& Date Amount 1301/1.4.1997 Rs.15,147/- 1303/5.4.1997 Rs.17,523/- 1306/10.4.1997 Rs.12,997/- 1313/17.4.1997 Rs.16,318/- 1315/23.4.1997 Rs.17,318/- 1318/27.4.1997 Rs.17,738/- R.S.A.No. 3536 of 2009 (O&M) 3 1347/5.11.1997 Rs.31,874/- 1348/12.11.1997 Rs.33,035/- 1351/19.11.1997 Rs.34,325/- 1356/4.12.1997 Rs.33,475/- 1357/12.12.1997 Rs.34,884/- 1361/23.12.1997 Rs.34,862/- 1364/30.12.1997 Rs.35,120/- 1366/8.1.1998 Rs.35,357/- 1369/17.1.1998 Rs.36,926/- 1375/27.1.1998 Rs.34,722/- 1376/31.1.1998 Rs.36,217/- The total supply of lime was worth Rs.6,80,488-35 paise. Out of the amount of goods supplied, the defendant made the payment of Rs.6,17,810/- which amount was appropriated towards the previous outstanding balance at the close of financial year 1996-97 i.e. Rs.2,02,650-35 paise and the remaining amount towards the above stated bills and in this way, balance amount of Rs.62,678/- is due to be paid by the defendant to the plaintiff. The last payment was made on 4.2.1998 by the defendant through Bank Draft No.809384. It was stipulated that if the payment of bills amount is not made within 15 days, then an interest at the rate of 24% per annum would be chargeable. However, the defendant did not make the payment as agreed, rather declared that the lime supplied by the plaintiff is not according to the specifications. It was a just lame excuse made by the R.S.A.No. 3536 of 2009 (O&M) 4 defendant. In fact, the defendant was interested to purchase the lime from other party for wilful gain. After declaring the goods as substandard, the defendant purchased the lime from other companies at higher rate and in this way, they deprived the plaintiff from supplying the goods further to them and the defendants also caused loss to the plaintiff. In fact, the plaintiff had not only supplied the quick lime to the defendants, but he had supplied the same to various concerns and they never raised any objection. On repeated requests made by the plaintiff, on 19.5.1998, the defendant issued a cheque dated 19.5.1998 for Rs.117-10 paise to the plaintiff and as per their own calculations, they deducted a sum of Rs. 56,083-15 paise, illegally and unlawfully. Then the plaintiff protested against this illegal deduction and referred the matter to the Managing Director, Punjab State Federation of Cooperative Sugar Mills Limited, Chandigarh, requesting him for the release of balance amount, but they also did not give any reply to the letters of the plaintiff. Hence, the present suit for recovery of Rs.96,344/- including interest amount to Rs.33,783/- at the rate of 24% per annum. 4. Notice of the suit was given to the defendant. Defendant appeared and filed the written statement by R.S.A.No. 3536 of 2009 (O&M) 5 taking preliminary objections that the suit is barred by limitations; that the Civil Court has no jurisdiction to entertain and try this suit, which is barred by Arbitration Law; that the suit is bad for non-joinder of necessary parties i.e. Punjab State Federation of Cooperative Sugar Mills Limited, Chandigarh; that the plaintiff is estopped from filing the present suit by his own act and conduct; that the plaintiff has not come to the Court with clean hands and that the suit of the plaintiff is not maintainable in the present form. Upon merits, it has been pleaded that the Sugarfed, Punjab had placed an order No.PSF/Lime/A-2/97/74-75 dated 21.10.1997 for the supply of 440 M.T. Lime at the rate of Rs.2,130/- per M.T. to the defendant, during the crushing season 1997-98 only. Since the lime supplied by the plaintiff was not as per the specifications of the purchase order, resultantly, the plaintiff was informed telegraphically as well as by post, a number of times to improve the quality of the lime as the same was of the inferior quality and was not as per the specifications, but the plaintiff did not pay any heed to the written requests made by the defendant. In this way, the defendant had to purchase the lime at higher rate from the market in order to fulfill their requirement. The lime supplied by the plaintiff was also got tested and it R.S.A.No. 3536 of 2009 (O&M) 6 was found below the specifications, as such, the defendant was well within their right to deduct the amount as per Clause 9 of the Purchase Order. The plaintiff has already settled the accounts with the defendants on 19.5.1998 after receiving a cheque for Rs. 117-10 paise. Hence, no amount as prayed for by the plaintiff is due from the defendant. Rest of the averments have been denied. It has been prayed that the suit of the plaintiff be dismissed with costs.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff has settled account with the defendant and no amount is due from the defendant under the bills mentioned in para No.3 of the plaint? OPD 2. Whether the plaintiff is entitled to the recovery of suit amount along with interest as prayed ? OPP 3. Whether this Court has no jurisdiction to entertain and try the present suit? OPD 4. Whether the suit is barred by limitation? OPD 5. Whether the suit is barred by law of arbitration? OPD 6. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD 7. Relief. ” R.S.A.No. 3536 of 2009 (O&M) 7 After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. Admittedly, the defendant had made purchase of lime from the plaintiff vide purchase order dated 21.10.1997, Ex.D-2. The defendant accepted the delivery of lime from the plaintiff. Out of the total sale consideration of Rs.6,80,488-35 paise, defendant made payment of Rs.6,17,810/- to the plaintiff. Since the payment regarding the remaining amount was not made to the plaintiff, the plaintiff filed the present suit for recovery of the balance amount. The case of the defendant was that the lime supplied qua the remaining amount was of substandard quality and hence, it had settled the accounts with the plaintiff after deducting the amount regarding substandard lime, while making the full and final payment to him. The defendant placed reliance on report of the Chemical Analyst to the effect that the lime supplied by the plaintiff was of substandard quality. However, the Chemical Analyst, who had prepared the report, was not examined by the defendant to prove the said report. In these circumstances, the learned Additional District Judge rightly held that no reliance could be placed on the report of the Chemical Analyst. Since the appellant had contested the suit and had not asked for reference of the case to Arbitrator before filing the written statement, the argument raised by the learned counsel that the R.S.A.No. 3536 of 2009 (O&M) 8 dispute should have been referred to Arbitrator is without any force. Both the Courts below, after appreciating the evidence on record, held that since the lime in question had been used/utilized by the defendant, the defendant was liable to make payment to the plaintiff regarding the lime supplied to it. The last payment was made by the defendant on 9.5.1998. Hence, the suit filed by the plaintiff was within limitation. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 05, 2009 anita