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Himachal Pradesh High Court · body

2002 DIGILAW 330 (HP)

SH. JITENDER SODHI v. V. K. UPPAL

2002-12-09

R.L.KHURANA

body2002
JUDGMENT R.L. Khurana, J.—The plaintiff is carrying on the business as a sole proprietor under the name and style of Messrs. Ayush Herbs at Plot No. 25, Phase I, Industrial Area, Nagrota Bagwan in District Kangra, while the defendant as sole proprietor is carrying on the business under the name and style of Messrs. Veenu Hitech at AG-1/184 C, Vikaspuri, New Delhi. 2. The plaintiff for the purpose of manufacture of his products required a spray drier with the capacity of 50/60 litres feed product with 25% solid contents per hour. The defendant, who claimed to be an established manufacturer of such spray machine, vide letter dated 19.9.1995 offered to supply the same on the terms and conditions detailed therein. After negotiations between the parties, the plaintiff vide letter dated 21.9.1995 placed an order with the defendant for the supply of the spray machine on the terms contained therein. The machine was to be supplied, erected and commissioned by the defendant at the total cost of Rs. 5,95,000 which was to be paid by the plaintiff as under:— (i) 40% of the cost as advance; (ii) 45% of the cost at the time of final inspection of the machine; and (iii) balance 15% on successful commissioning of the machine. 3. A sum of Rs. 2,38,000 representing 40% of the cost of machine was sent by the plaintiff to the defendant as advance vide Demand Draft dated 21.9.1995 alongwith the letter dated 21.9.1995 (Ext. PW1/B) vide which the order for supply of machine was placed by the plaintiff. A further sum of Rs. 2,67,750 representing 45% of the total cost of the machine was paid to the defendant by way of a Bank Draft on 14.11.1995 vide letter Ex. PW1/D. A further sum of Rs. 20,000 was paid in cash by the plaintiff to the defendant. Thus, a total sum of Rs. 5,25,750 stood paid to the defendant by the plaintiff. Though the spray machine was supplied, erected and installed by the defendant at the industrial premises of the plaintiff, the same could not be commissioned by the representatives of the defendants, on account of some defects therein. The defendant failed to commission the machine till the date of the suit inspite of repeated requests having been made by the plaintiff. Due to non-commissioning of the machine the plaintiff claims to have suffered earnings which have been assessed at Rs. The defendant failed to commission the machine till the date of the suit inspite of repeated requests having been made by the plaintiff. Due to non-commissioning of the machine the plaintiff claims to have suffered earnings which have been assessed at Rs. 500 per day 4. By virtue of the present suit the plaintiff has claimed the recovery of Rs. 11,20,380 from the defendant, as under:— (a) Cost of machine paid to the defendant. Rs. 5,25,750 (b) Damages due to non-commissioning of the machine from 20.11.1995 till 15.7.1997 (603 days) at the rate of Rs. 500 per day. Rs. 3,01,500 (c) Interest on the blocked amount of Rs. 5,25,750 at the rate of 24% per annum from 20.11.1995 till 15.3.1998. Rs. 2,92,580 (d) Cost of legal notice. Rs. 550 Total Rs. 11,20,380 5. The defendant while resisting and contesting the suit, raised a counterclaim as under : (i) Balance amount of cost of the spray machine. Rs. 89,250 (ii) Cost of air-heat generator system alongwith incidental charges. Rs. 1,85,000 (iii) Interest on the aforesaid amounts at the rate of 18% per annum from the date the said amounts became due till the date of filing of the counter-claim. Rs. 1,48,090 Total Rs. 4,22,340 6. The defendant, however, restricted his counter-claim only to the extent of Rs. 3,00,000. The defendant admitted the placement of the order by the plaintiff for the supply of the spray machine. He also admitted the receipt of Rs. 5,05,750 towards the cost of machine. Though he admitted the receipt of additional amount of Rs. 20,000, it was pleaded that such amount was not paid by the plaintiff towards the cost of the spray machine. Such amount was paid by the plaintiff to the defendant by way of reimbursement of the expenses incurred by the defendant on behalf of the plaintiff. in connection with A Japanese guest of the plaintiff. 7. It was further pleaded that the spray machine, was supplied, erected and installed by the defendant as per the specifications at the industrial premises of the plaintiff. Though the defendant admitted that the spray machine could not be commissioned till date, it was pleaded that the same could not be commissioned since the plaintiff failed to supply the air heat generator and other accessories required for the commissioning of the spray machine. Though the defendant admitted that the spray machine could not be commissioned till date, it was pleaded that the same could not be commissioned since the plaintiff failed to supply the air heat generator and other accessories required for the commissioning of the spray machine. Such air heat generator and other accessories were to be supplied by the plaintiff as per the terms. There was no defect in the machine. There were some deficiencies in the heat generating system which were required to be removed and rectified by the plaintiff. The non-commissioning of the spray machine is due to the acts of omission and commission of the plaintiff himself. The air heating generator which was not supplied by the plaintiff was supplied by the defendant at the request of the plaintiff and the plaintiff had agreed to pay the cost thereof including the freight charges. Such air heating generator was purchased by the defendant and supplied to the plaintiff by incurring an expenditure to the tune of Rs. 1,85,000 which amount the plaintiff is liable to pay to the defendant alongwith the balance cost of machine and interest. 8. The plaintiff in his rejoinder-cum-written statement denied the counterclaim of the defendant and reiterated the averments made earlier in the plaint. 9. On the pleadings of the parties, following issues were framed on 1.11.2000 : 1. Whether there is a concluded contract between the parties as alleged? OPP 2. Whether a sum of Rs. 5,25,750 was paid by the plaintiff to the defendant, as alleged? OPP 3. Whether the order for supply of machinery was procured by the defendant from the plaintiff by misrepresentation, as alleged? OPP 4. Whether the defendant supplied incomplete and deficient machinery to the plaintiff, as alleged? OPP 5. If issue No. 4 is decided in the affirmative, whether the plaintiff suffered any damage or loss on account of incomplete and deficient machinery? If so, to what extent? OPP 6. To what amount, if any, is the plaintiff entitled to recover? OPP 7. Whether the plaintiff is entitled to interest? If .so, on what amount, at what rate and from which date? OPP 8. Whether the suit is not maintainable as alleged? OPD 9. Whether the plaintiff is estopped to file the present suit? OPD 10. OPP 6. To what amount, if any, is the plaintiff entitled to recover? OPP 7. Whether the plaintiff is entitled to interest? If .so, on what amount, at what rate and from which date? OPP 8. Whether the suit is not maintainable as alleged? OPD 9. Whether the plaintiff is estopped to file the present suit? OPD 10. Whether the suit has not been properly valued for the purpose of court-fee and jurisdiction, if so, what is the correct valuation of the suit? OPD 11. Whether the Spray Drier Unit supplied by the defendant could not be commissioned on the account of plaintiffs failure to supply steam generating system of desired capacity as alleged? If so, to what effect? OPD 12. Whether the defendant is entitled to any amount from the plaintiff as a counter-claim? If so, to what extent? OPD 13. Relief. 10. The parties have led oral as well as documentary evidence in support of their case. 11. I have heard the learned Counsel for the parties and have also gone through the record of the case. My findings on the above issues are as under: Issue No. 1 12. The case of the defendant is that there is no concluded contract between the parties and as such the present suit is premature. 13. The defendant vide Ex. PW1/A on 19.9.1995 offered to supply the Spray Drier Machine to the defendant at the cost of Rs. 5,95,000 on the terms and conditions contained therein. Such offer was accepted by the plaintiff vide Ex. PW1/B on 21.9.1995. While accepting the offer, the plaintiff put forth certain new/amended terms and conditions. It was stated in the letter of acceptance Ex. PW1/B as under : "We are confirming the order for the fabrication of Spray Drier under the following clauses, which telephonically agreed upon by you with the undersigned." 14. Alongwith Ex-PW 1/B, a sum of Rs. 2,38,000 by Demand Draft representing 40% of the cost of the machine was sent by the plaintiff to the defendant in terms of one of the conditions contained in the letter of offer Ex. PW 1/B of the defendant. It is also admitted by the defendant that a further sum of Rs. 2,67,750 representing 45% of the cost of machine was received by him from the plaintiff vide Ex. PW 1/D. 15. PW 1/B of the defendant. It is also admitted by the defendant that a further sum of Rs. 2,67,750 representing 45% of the cost of machine was received by him from the plaintiff vide Ex. PW 1/D. 15. Be it stated that the new/amended terms put forth by the plaintiff vide Ex. PW1/B while accepting the offer of the defendant for the supply of the spray machine were never objected to by the defendant. Rather the defendant while accepting the two payments of Rs. 2,38,000 and Rs. 2,67,750 made by the plaintiff without any protest, proceeded to supply, erect and instal the machine at the industrial premises. Therefore, there has been performance of the conditions of the contract of sale by the defendant. There has been acceptance on his part even if Ex. PW1/B is taken as a counter offer by the plaintiff. In this regard reference can be made to Section 8, Contract Act, which provides : "Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with the proposal, is an acceptance of the proposal." 16. Section 8 quoted above, thus, provides .the acceptance of a proposal by conduct as against other modes of acceptance, that is, verbal or written communication contemplated by Sections 7 and 9 of the Contract Act. 17. In the present case, the defendant by his conduct, that is, accepting the part payments made towards the cost of machinery and supplying, erecting and installing the machinery at the industrial premises of the plaintiff had accepted the counter offer of the plaintiff made vide Ex. PW1 /B. Therefore, there has been a concluded contract between the parties. The issue is decided in favour of the plaintiff. Issue No. 2. 18. There is no denying that a sum of Rs. 5,05,750 by way of bank drafts in two instalments was paid by the plaintiff to the defendant. The dispute is only with regard to Rs. 20,000. According to the plaintiff, a sum of Rs. 20,000 in cash was paid by him to the defendant towards the cost of the machine. The defendant has admitted the receipt of Rs. 20,000 in cash from the plaintiff. The dispute is only with regard to Rs. 20,000. According to the plaintiff, a sum of Rs. 20,000 in cash was paid by him to the defendant towards the cost of the machine. The defendant has admitted the receipt of Rs. 20,000 in cash from the plaintiff. He has pleaded that this amount was paid to him not towards the cost of machine, but as reimbursement of the expenditure incurred by him on behalf of the plaintiff in connection with the visit of a Japanese guest of the plaintiff. 19. The plaintiff while appearing as PW1 has admitted that one Kazurai Sarui was his guest from Japan who had visited him and that the journey from Delhi to Gaggal was Undertaken by the said guest by air. He has, however, denied that Rs. 2,000 was paid by him to the defendant by way of reimbursement on account of air fare of the guest spent by the defendant on his behalf. 20. It cannot be believed that the plaintiff who had earlier made part payments of the cost of machine by way of bank drafts evidenced by the forwarding letters Ex. PW1/B and PW1/D, would have paid the amount in cash to the defendant towards the cost of machine without obtaining any receipt therefor especially when such amount was paid by him to the defendant in Delhi where the office of the defendant is located. 21. During the course of cross-examination of the defendant as DW1, it was never suggested to him by plaintiff that Rs. 20,000 in cash was paid to him towards the cost of the machine. 22. Considering the entire evidence coming on record, the plaintiff has not been able to prove that Rs. 20,000 was paid by him to the defendant towards the cost of the machine. Payment of Rs. 5,05,750 only towards the cost of machine stands proved and admitted. The issue is accordingly decided. Issue No. 3 23. During the course of hearing the learned Counsel for the plaintiff did not press the present issue. The same is as such decided against the plaintiff. Issue No. 4 24. It is the admitted case of the defendant that the spray machine supplied and installed by him in 1995 at the industrial premises of the plaintiff has not been commissioned till date. 25. Ex. The same is as such decided against the plaintiff. Issue No. 4 24. It is the admitted case of the defendant that the spray machine supplied and installed by him in 1995 at the industrial premises of the plaintiff has not been commissioned till date. 25. Ex. PW1/A, the offer made by the defendant for the supply of spray machine contains a condition under the head "Guarantee of the Equipment" in the following terms:- "We shall commission the equipment at your place of work and show you the performance of the equipment, shall replace the same face of charge at our own expenses." The above condition was amended/changed by the plaintiff vide Ex. PW1/B under the head "Guarantee" as under:— "1. Veenu Hitech Fabricator will provide one year Guarantee for any manufacturing faults from the date of successful erection and commissioning. 2. If the plant does not stand for the performance Veenu Hitech will replace that free of cost till successful operation will be achieved. In case of total failure of the Spray Drier to perform, Veenu Hitech will refund the money with 2% interest." 26. As held under Issue No. 1 above, the defendant by his conduct had accepted the terms/conditions contained in Ex. PW1/B. He is, therefore, bound by the same. The defendant while appearing as DW1 has admitted that rate of interest of 2% mentioned in Ex. PW1/B denoted payment of interest at the rate of 2% per month. 27. The evidence led by the defendant for the non-commissioning of the machine is absolute contrary to the pleadings. It has been pleaded by the defendant in para 4 of his written statement as under : "It may be mentioned here that before commissioning of the unit by the defendant, the plaintiff was to provide an Air Heat Generator of the requisite steam generation capacity, as per the specifications of the unit fabricated for the plaintiff by the defendant. It was the sole responsibility of the plaintiff to provide the air heat generator system of the desired specification so that the spray drier unit can be successfully commissioned. Beside this the plaintiff was required to arrange for the other accessories required for erection and commissioning of the Spray Drier System. It is, however, not denied that the defendant arranged for the technical persons to commission the Spray Drier unit. Beside this the plaintiff was required to arrange for the other accessories required for erection and commissioning of the Spray Drier System. It is, however, not denied that the defendant arranged for the technical persons to commission the Spray Drier unit. It is denied that there were any defects found in the fabricated unit supplied by the defendant to the plaintiff but there were some deficiencies in heat generating system which were required to be removed by the plaintiff before the spray drier unit could be successfully commissioned. The plaintiff was apprised of such deficiencies in his air-heating-generating system, which were found by the technical persons sent by the defendant t at the site. As a matter of fact, the air-heating-generator which was provided by the plaintiff was not upto the mark and was of a very poor grade and quality. The said system was incapable or generating requisite quantity of steam which was essentially required to successfully commission the said unit. Neither the air heating generating system was producing sufficient quantity or .the steam nor was such system capable of providing requisite temperature so that the spray drier unit could work properly. The plaintiff never cared to see the capacity of the air heating generator, whether the same was capable of producing the requisite quantity of steam, which was essential to maintain pressure as well as temperature. The defendant demanded from the plaintiff the information regarding the steam generating capacity of the steam boiler/air heat generator as well as the pressure and temperature which the said system provided by the plaintiff could generate. The requisite information was never supplied by the plaintiff to the defendant. When the technical persons sent by the defendant at the site, could not successfully commission the spray drier unit on account of the acts of omission, commission directly attributable to the plaintiff and Nagrota Bagwan being a very small place where such air heating generator could not be arranged, the plaintiff requested the defendant to arrange for the steam generator and agreed that he shall pay the requisite amount of the cost of the said heat generating system including the freight etc. Since the defendant was not dealing with the air heating generating system or steam boiler etc., the defendant agreed to arrange for such system for the plaintiff so as to successfully commission the spray drier unit at the cost of the plaintiff. Since the defendant was not dealing with the air heating generating system or steam boiler etc., the defendant agreed to arrange for such system for the plaintiff so as to successfully commission the spray drier unit at the cost of the plaintiff. Since the system which was with the plaintiff was not generating sufficient heat the defendant at the request of the plaintiff despatched Steam Radiator at the site as well as another Heat Generator by spending a sum of Rs. 1,85,000 including the incidental and despatch charges. Since the plaintiff neglected to send requisite information regarding the capacity of the steam generation, pressure and temperature and further that the plaintiff was to provide accessories of steam generator which the plaintiff did not arrange for the reasons best known to the plaintiff. On account of the acts of omission and commission committed by the plaintiff, the technical persons sent by the defendant at the site could not commission the Spray Drier System, on account of the deficiencies which were never remedied by the plaintiff. As a matter of fact, it was non-co-operative attitude of the plaintiff which resulted in not commissioning of the spray , drier system when there was no deficiency in the equipment fabricated and supplied by the defendant to the plaintiff. It is pertinent to mention that the equipment supplied by the defendant to the plaintiff was as per the specifications mentioned in the offer. It may further be mentioned that the plaintiff on his own, unilaterally written some minutes and got the signatures of the technical persons sent at the site by the defendant. The said minutes were got signed by misrepresentation and by concealing true and material facts. When Mr. Vishal Bhrdwaj came to know of such minutes, the objection was made to the plaintiff in this regard. The plaintiff was requested by the defendant to help the Engineers sent at the site to achieve the desired result but the plaintiff failed to furnish the requisite assistance and also to provide the appropriate heat generating system of the requisite quality and capacity. It was on account of the sheer negligence of the plaintiff that the engineers of the defendants sent at the site could not commission the unit, therefore, the plaintiff cannot derive any advantage from non-commissioning of the unit. It was on account of the sheer negligence of the plaintiff that the engineers of the defendants sent at the site could not commission the unit, therefore, the plaintiff cannot derive any advantage from non-commissioning of the unit. It is specifically denied that the defendant did not supply complete machine as directed by the plaintiff or the defendant started making excuses not to put the machine in working order. As already submitted there was no deficiency in the unit fabricated and supplied by the defendant to the plaintiff." 28. However, in his own statement as DW-1, the defendant has taken the stand that the plant could not be commissioned inspite of the supply of the accessories since the plaintiff failed to provide the raw material. The defendant as DW-1 has admitted as under : "The machinery was sent by me to the Nagrota Bagwan at the industrial unit of the plaintiff somewhere in 1995. The accessories required for commissioning the machinery were supplied in April 1996. It is correct that Shri Vishal Bhardwaj had visited the industrial unit of the plaintiff in April 1996.1 do not know if minutes of what transpired in such two visits of Shri Vishal Bhardwaj were drawn up and signed by him. It is correct that on both these visits, Shri Vishal Bhardwaj could not commission the machinery (Volunteered : the machinery could not be commissioned for the reasons stated above in my examination-in-chief). I cannot say if Sh. Vishal Bhardwaj had not visited the plaintiffs unit after April 1996. Letter Ex. PW1/L was addressed by me to the plaintiff. Since the dispute had already arisen, no attempt was made by me to visit the unit of the plaintiff for the purposes of commissioning the machinery." 29. In the letter Ex. PW1/L which admittedly was written by the defendant to the plaintiff, it has been mentioned by the defendant that his official Mr. Vishal was getting late for visit to the site due to non-availability of a nozzle and that as soon as such nozzle was available, Mr. Vishal would be visiting the site for commissioning the plant. 30. As DW1, the defendant has admitted that the commissioning of the plant was impossible in the absence of the nozzle. Vishal was getting late for visit to the site due to non-availability of a nozzle and that as soon as such nozzle was available, Mr. Vishal would be visiting the site for commissioning the plant. 30. As DW1, the defendant has admitted that the commissioning of the plant was impossible in the absence of the nozzle. There is nothing in his statement as to when such nozzle became available to him and when such nozzle was ever supplied to the plaintiff so as to enable the commissioning of the plant. The defendant, on the face of it, appears to have taken a false stand as to non-commissioning of the plant. 31. The evidence coming on record establishes that incomplete and deficient machinery was supplied by the defendant to the plaintiff. The issue is decided in favour of the plaintiff. Issue No. 5 32. No evidence is forth coming to show the extent of loss, if any, suffered by the plaintiff due to supply of incomplete and deficient machinery by the defendant. The best evidence available as to the extent of production expected to be achieved by the commissioning of the machine and the actual production achieved in the absence of such machine has not been produced. The claim of the plaintiff of damages at Rs. 500 per day is not substantiated. Therefore, this issue is decided against the plaintiff. Issue No. 6 33. As held under issue No. 2 above, a sum of Rs. 5,05,750 was paid by the plaintiff to the defendant as part payments towards the cost of machine. In view of the findings under issue No. 4 that incomplete and deficient machine was supplied and that the same could not be commissioned due to the acts attributable to the defendant and that as per the terms of the contract the defendant was to ensure the commissioning thereof, on his failure to do so in terms of the conditions contained in Ex. PW 1/B, the plaintiff is entitled to recover the amount of Rs. 5,05,750 from the defendant. The issue is accordingly decided in favour of the plaintiff. Issue No. 7 34. Ex. PW 1/B, the plaintiff is entitled to recover the amount of Rs. 5,05,750 from the defendant. The issue is accordingly decided in favour of the plaintiff. Issue No. 7 34. Ex. PW 1/B, as pointed out while dealing with Issue No. 4 above, contains a stipulation with regard to the entitlement of the plaintiff to claim refund of the money paid by him towards the cost of the machinery in the event of failure in the commissioning of the machine along with interest at the rate of 2% per month, that is, 24% per annum. Such term, as held above, stands accepted by the defendant by his act and conduct. Therefore, the plaintiff is entitled to interest at such rate on the amount of Rs. 5,05,750 for the period claimed by him amounting to Rs. 2,71,359. The issue is decided in favour of the plaintiff. Issue No. 8 35. In view of my findings on issue No. 1 that there is a concluded contract between the parties, the present suit is maintainable. The issue is decided against the defendant. Issue No. 11 36. In view of my findings recorded under issue No. 4 above that the defendant had supplied incomplete and deficient machine to the plaintiff, this issue is decided against the defendant. Issue No. 9 37. In view of my findings on issues No. 4 and 11 above, it is held that the plaintiff is not estopped from filing the present suit. The issue is decided against the defendant. Issue No. 10 38. During the course of hearing the present issue was not pressed by the learned Counsel for the defendant. The same is accordingly decided against the defendant. Issue No. 12 39. The defendant by way of a counter-claim has sought the recovery of Rs. 3,00,000 from the plaintiff. 40. Be it stated that apart from the fact that there is no evidence by the defendant in support of his counter-claim, the same is liable to be rejected on the ground of the same being time barred. 41. Issue No. 12 39. The defendant by way of a counter-claim has sought the recovery of Rs. 3,00,000 from the plaintiff. 40. Be it stated that apart from the fact that there is no evidence by the defendant in support of his counter-claim, the same is liable to be rejected on the ground of the same being time barred. 41. Rule 6A of Order 8, Code of Civil Procedure, which deals with "counter-claim by defendant", provides: "6-A. Counter claim by defendant.—(1) A defendant in a suit may, in addition to his right of pleading a set off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints." 42. Under sub-rule (4) of Rule 6A, above the counter-claim is to be treated as a plaint and is to be governed by the rule applicable to the plaints. Sub-rule (2) lays down that a counter-claim shall have the same effect as of a cross-suit. 43. Clause (b) of sub-section (2) of Section 3, Limitation Act, 1963 also provides:— "Any claim by way of a set off or a counter-claim, shall be treated as a separate suit and shall be deemed to have been instituted— (i) In the case of set off, on the same date as the suit in which the set off is pleaded; (ii) In the case of a counter-claim, on the date on which the counterclaim is made in court." 44. Order 7, Code of Civil Procedure, provides for the rules governing the plaint. Clause (d) of Rule 11 of Order 7 makes a plaint liable to rejection where the suit appears to be barred by any law. 45. Sub-section (i) of Section 3, Limitation Act, 1963 lays down that subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted after the prescribed period shall be dismissed, although limitation has not been set up as a defence. 46. A suit within the meaning of clause (a) of sub-section (2) of Section 3, Limitation Act, is said to have been instituted for the purposes of the Act, in an ordinary case, when the plaint is presented to the proper officer of the Court. Since a counter-claim is to be treated as a plaint, the same will be deemed to have been instituted on the date the same was presented to the Court. 47. The counter-claim in the present case was laid by the defendant on 1.7.1999. It has been averred in para 6 of the counter-claim as under:— "That the cause of action has accrued to the defendant to file this counterclaim against the plaintiff when the aforesaid amount fell due to the defendant and failure on the part of the plaintiff to pay the same....." 48. The question, therefore, is when the amount of the counter-claim became due to the defendant. 49. The defendant while appearing as DW-1 during his cross-examination has deposed: "The machinery was sent by me to Nagrota Bagwan at the industrial unit of the plaintiff some where in 1995. The accessories required for commissioning the machinery was supplied in April, 1996." 50. The amount of the counter-claim, thus, as per the defendants own showing, became due to him at the most in April 1996. The counter-claim laid on 1.7.1999, that is, after the expiry of the requisite period of three years, as contemplated by Article 14, Limitation Act, 1963, is, therefore, barred by time and the same is liable to be dismissed on this short ground alone. The defendant is, as such, not entitled to any amount by way of counter-claim. The issue is decided against the defendant. Relief 51. As a result of the above findings, the suit of plaintiff partly succeeds and a decree for a sum of Rs. 7,77,109, that is, Rs. 5,05,750 as principal amount and Rs. The defendant is, as such, not entitled to any amount by way of counter-claim. The issue is decided against the defendant. Relief 51. As a result of the above findings, the suit of plaintiff partly succeeds and a decree for a sum of Rs. 7,77,109, that is, Rs. 5,05,750 as principal amount and Rs. 2,71,359 as interest thereon, with proportionate costs and future interest on the principal amount at the rate of 12% per annum from the date of suit till realization of the amount is passed in favour of the plaintiff and against the defendant. The counter-claim of the defendant is, however, dismissed with no orders as to costs.