RSA No.1033 of 2011 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1033 of 2011 (O & M) Date of Decision: 03.03.2011 M/s Safex Chemicals India Ltd. (Haryana) and another ……Appellants Versus M/s Sheo Parshad Pardeep Kumar …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Rakesh Verma, Advocate for the appellants. L.N. MITTAL, J (ORAL) Defendants, having lost in both the Courts below, have come up by way of instant second appeal. Respondent-plaintiff- M/s Sheo Parshad Pardeep Kumar through his sole proprietor Pardeep Kumar filed suit against the appellants/defendants for recovery of Rs.11,45,165/-. The plaintiff’s case is that the plaintiff made advance payments to the defendants for purchase of pesticides. The defendants supplied some quantity of pesticides. At the end of financial year 2004-05, a sum of Rs.10,41,565/- remained due from the defendants to the plaintiff. Thereafter the plaintiff paid Rs.3,00,000/- vide draft dated 20.04.2005 and defendants supplied pesticides worth Rs.7,69,246.40P. Some amounts by way of difference in rates of pesticides were to be credited in favour of the plaintiff. The plaintiff also claimed interest at the rate of 1% per month. Accordingly, plaintiff sought recovery of Rs.11,45,165/-. RSA No.1033 of 2011 (O & M) - 2 - The defendants admitted dealings between the parties. However, the defendants pleaded that the plaintiff after placing orders for pesticides sulfa sulfron at the rate of Rs.430/- per unit refused to accept delivery thereof on account of fluctuation in rates. The plaintiff was bound to accept delivery of the said pesticides at the rate settled between the parties. The defendants suffered huge loss due to non-acceptance of the pesticides of the plaintiff and, therefore, nothing is due from the defendants to the plaintiff. The defendants pleaded that they are still ready and willing to deliver the pesticides as per orders placed by the plaintiff. The question of returning the cash amount did not arise. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Kaithal vide judgment and decree dated 01.05.2009 decreed the plaintiff’s suit. First appeal preferred by the defendants has been dismissed by learned District Judge, Kaithal vide judgment and decree dated 02.12.2010. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Plaintiff has led sufficient evidence to prove his case whereas the defendants have miserably failed to prove their case. Payments made by the plaintiff as pleaded in the plaint have not been specifically controverted in the written statement. On the contrary, the defendants came with a counter version that the plaintiff refused to accept supply of pesticides for which orders had been RSA No.1033 of 2011 (O & M) - 3 - placed, on account of fluctuation in the market rates thereby causing loss to the defendants. However, the defendants in their evidence examined Amarjit as sole witness. However, Amarjit was not even employed with the defendants when the transactions in question took place. Consequently, Amarjit had no personal knowledge of the controversy involved in the lis. Resultantly, testimony of Amarjit being based on hearsay carries no probative value. The plaintiff’s evidence thus virtually stands unrebutted. In addition to the aforesaid, defendants’ Director S.K. Jindal has not stepped into the witness box nor any other concerned witness of the defendants has appeared to prove the defendants’ case. Consequently, adverse presumption arises against the defendants. Defendants are a company. Obviously, they are maintaining their accounts. However, defendants have not produced their account books to rebut the case of the plaintiff. For this reason also, adverse inference has to be drawn against the defendants. The defendants pleaded in the written statement that they are still ready to supply the pesticides ordered by the plaintiff and, therefore, question of making cash payment to the plaintiff did not arise. This plea of the defendants would also depict that suit amount claimed by the plaintiff was outstanding against the defendants after adjusting the price of the pesticides already supplied by the defendants to the plaintiff. However, as noticed hereinbefore, the defendants have failed to prove their counter version. There is practically no evidence to depict that the plaintiff had placed orders for supply of pesticides and thereafter refused to accept the supply thereof. There is also practically no evidence to depict that the RSA No.1033 of 2011 (O & M) - 4 - defendants ever supplied any such pesticides to the plaintiff and the latter refused to accept the same. In view of the aforesaid, I find no illegality or perversity in the concurrent finding recorded by both the courts below in favour of plaintiff-respondent. The said concurrent finding recorded by both the courts below is fully justified by the evidence on record and is supported by cogent reasons. Learned counsel for the appellants contended that the pendente lite and future interest at the rate of 1% per month awarded by the courts below is excessive. The contention cannot be accepted because it was purely commercial transaction between the parties. In commercial transactions, interest at the rate of 1% per month cannot be said to be excessive. As a necessary corollary of the aforesaid discussion, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 03.03.2011. A.kaundal