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2006 DIGILAW 762 (PAT)

Amarjeet Singh Bajaj v. State Of Bihar

2006-08-25

SYED MD.MAHFOOZ ALAM

body2006
Judgment Syed Md.Mahfooz Alam, J. 1. This Second Appeal has been preferred against the judgment and decree dated 6.4.1990 passed by Sri Bhagwan Prasad Singh, 7th Additional District Judge, Purnea, in Money Appeal Nos. 1/89/7/87 and 2/89/9/87 reversing the judgment and decree dated 21.7.87 passed by Sri S.B. Singh, Sub-Judge, Purnea, in Money Suit No. 27 of 1985, whereby he had decreed the suit of the plaintiff. 2. The case of the plaintiff-appellant, in brief, is that in response to notice by the General Manager, District Industries Centre, Purnea, the plaintiff-appellant submitted a quotation for supply of machineries to respondent-defendant no. 5 on the price of rupees thirty thousand. The said quotation was accepted by the General Manager of the District Industries Centre, Purnea and, accordingly, he issued a letter of acceptance on 31.3.82. Through the said letter he took responsibilities to pay the said price towards supply of machineries to defendant no, 5. Thereafter, the plaintiff- appellant supplied the machineries to respondent-defendant no. 5 on 31.3.82, who granted receipt in token of supply of machineries on the back of the bill and also put his signature. The delivery of the machinery was verified by the manager himself on 31.3.82. Thereafter, the plaintiff submitted the bill before the General Manager, District Industries Centre, Purnea, for payment of the price but the price was not paid and then the plaintiff sent notice under section 80 of the Code of Civil Procedure but even after that when the price was not paid the plaintiff instituted the money suit for realisation of the price of machineries and interest thereon amounting to Rs. 11,000/-. 3. The case of defendant nos. 1 to 4, in brief, is that the plaintiff has wrongly stated that he had submitted quotation for supply of machineries to M/s Bishwas Aata Chakki before respondent no. 4 on 27.4.81. The fact is that the quotation was submitted to the office of defendant no. 4 by defendant no. 5. However, it was admitted that the quotation was accepted on 31.3.82 and on the same day supply order for supply of machineries to defendant no. 5 was issued. The defendant nos. 1 to 4 have further stated that on the same day i.e. on 31.3.82 the defendant no. 5 submitted NSC for value of rupees six thousand and executed an agreement in favour of the department concerned. 5 was issued. The defendant nos. 1 to 4 have further stated that on the same day i.e. on 31.3.82 the defendant no. 5 submitted NSC for value of rupees six thousand and executed an agreement in favour of the department concerned. It has further been stated that from the verification of record it transpired that on the same day the plaintiff submitted bill for payment of price of the machineries and the defendant no. 5 granted receipt for delivery of machineries to him. It has also been admitted that from the verification of his record it transpired that on the same ay the defendant no. 4 went to Mohania at the flour mill of defendant no. 5 situated at a distance of 65 miles from Purnea and submitted verification report on the same day. It has been stated that this verification report being on plain paper is a doubtful document and it was highly impossible for the plaintiff to supply machineries in question to defendant no. 5 and get the same verified by defendant no. 4 at Mohania on the same day i.e. on 31.3.82 which was the financial closing day of the year and the defendant no. 4 was supposed to remain present in the headquarter on that date for withdrawals and payment of the bills. It has further been stated that on verification of the log book it transpired that on 31.3.82 the defendant no. 4 did not travel to Mohania for verification of the machineries. It has been submitted that the bill submitted by the plaintiff is vague one and the verification report has been forged by the plaintiff and, therefore, the plaintiff is not entitled to get the relief claimed. 4. The case of defendant no. 5, in brief, is more or less same as made out by defendant nos. 1 to 4. However, it has been admitted that defendant no. 5 was running a Aafa Chakki and Oil Mill from before 1981 and for purchase of machineries he came in contact with plaintiff with whom friendship developed. It is further stated that the plaintiff proposed to get the whole machinery replaced by new one and assured the defendant no. 5 to make loan available for purchase of new machineries from the Industry Department, Govt. of Bihar, stating that he had got personal contact with the General Manager of the said department. It is further stated that the plaintiff proposed to get the whole machinery replaced by new one and assured the defendant no. 5 to make loan available for purchase of new machineries from the Industry Department, Govt. of Bihar, stating that he had got personal contact with the General Manager of the said department. Defendant No. 5 agreed to the proposal and thereafter the plaintiff obtained signature of defendant no. 5 on several papers including blank vouchers but the machineries were not supplied to defendant no. 5 and later on those blank papers having signatures of defendant no. 5 were converted into documents and hence prayer was made to dismiss the suit. 5. On the basis of pleadings of both parties the learned trial court framed as many as seven issues which are as follows: I. Is the suit as framed maintainable? II. Has the plaintiff got valid cause of action for the suit? Ill Has the notice u/s 80 C.P.C. been served legally? IV. Is the suit barred by law of limitation? V. Did the plaintiff supply the machineries to M/s Bishwas Aata Mill at Mohaniya as per his quotation or did he (plaintiff) supply the machineries to the M/s Bishwas Aata Mill at Mohaniya, on 31.3.82, or on any other date of the value of Rs. 30,000/-? VI. Is the plaintiff entitled for the price of the machineries Rs. 30,000/- with interest and if so to what percent of interest and from when? VII. To what reliefs? 6. From the perusal of judgment of trial court it appears that after making full discussion on ail the issues the trial court held that the plaintiffs suit is not barred by limitation. The trial Court has also come to the conclusion that the plaintiff had supplied the machineries to M/s Bishwas Aata Mill situated at Mohania as per his quotation and, as such, he is entitled to get the price of "machineries at Rs. 30,000/- with interest pendente lite and future @ 6 per cent per annum. 7. Against the said judgment and decree, defendant no. 5 Ram Krishna Biswas as well as the State of Bihar and others filed appeals which were numbered as Money Appeal No. 1/89/7/87 and 2/89/9/87 respectively. 30,000/- with interest pendente lite and future @ 6 per cent per annum. 7. Against the said judgment and decree, defendant no. 5 Ram Krishna Biswas as well as the State of Bihar and others filed appeals which were numbered as Money Appeal No. 1/89/7/87 and 2/89/9/87 respectively. Both the appeals were heard analogous and by judgment date 6.4.90 both the appeals were disposed of by 7th Additional District Judge, Purnea, who allowed both the appeals and dismissed the suit of the plaintiff. 8. Being aggrieved by the said judgment passed in the appeals, the plaintiff-appellant has preferred this Second Appeal. 9. From perusal of the record of this appeal, it appears that at the time of admission of this Second Appeal, only one substantial question of law was formulated to be decided in this appeal which is as follows: "Whether the court of appeal below erred in holding that the machine was not supplied without considering exhibit-11 series the letters sent by the defendants accepting the factum of supply and expressing inability to make payment on account of lack of fund?" 10. Thus, before me there is only one substantial question of law as stated above. During the course of hearing of this appeal, only the lawyer of the appellant appeared and argued the case. On behalf of the espondents none appeared. It has been submitted by the learned Advocate of the appeliant that the finding of the learned first appellate court is against the documentary and oral evidence available on record. His further submission is that in this case everything is admitted and well proved. He submitted that there are overwhelming documentary evidence on record besides the admission of both sets of the defendants regarding the supply of machineries by the plaintiff to defendant no. 5 but the first appellate court merely on conjucture and surmises that it was not possible for the defendant no. 4 to go to village Mohania which is situated at a distance of 65 miles away on a day which was a financial ending day i.e. 31.3.82 dismissed the suit of the plaintiff. Learned Advocate submitted that the first appellate court has committed gross error of law by not accepting the overwhelming documentary evidence adduced on behalf of plaintiff regarding the supply of machineries to defendant no. 5 merely on the basis of conjucture and surmises. 11. Learned Advocate submitted that the first appellate court has committed gross error of law by not accepting the overwhelming documentary evidence adduced on behalf of plaintiff regarding the supply of machineries to defendant no. 5 merely on the basis of conjucture and surmises. 11. Let me see whether the argument of the learned advocate of the appellant is correct? The case of the plaintiff is that in response to the notice by the General Manager, District Industries Centre, Purnea, defendant no. 4, plaintiff-appellant submitted quotation for supply of machineries to respondent no. 5 at a price of Rs. 30,000/-. The said quotation was accepted by defendant no. 4 and accordingly he issued letter of acceptance on 31.3.82 and then the plaintiff-appellant supplied the machineries to respondent no. 5 on 31.3.82,who granted receipt in token of supply of machineries and thereafter the delivery of machineries was verified by defendant no. 4 on the same day who submitted his verification report. From the perusal of trial Courts record it appears that the plaintiff in support of his case has brought on record several documentary evidence. Exhibit-1 is the quotation submitted by the plaintiff in response to the notice of the General Manager, District Industries Centre for supply of Machineries, Exhibit-2 is the Setter of acceptance dated 31.3.82 given by the General Manager, District Industries Centre, Purnea, to the plaintiff regarding the acceptance of quotation with direction to supply the machineries to defendant no. 5, Exhibit-4/A is the receipt in the handwriting of defendant no. 5 accepting the delivery of machineries. This receipt has been granted by defendant no. 5 on the back of the bill (Exhibit-5) submitted by the plaintiff. Exhibit-6 is the verification report dated 31.3.82 of defendant no. 5 which shows that on the same day defendant no. 5 made spot inspection regarding delivery of machineries and submitted his verification report with regard to supply of machineries. Exhibit-7 is the satisfaction report submitted by defendant no. 5 stating therein that the machineries were in good working condition. All the abovementioned documents fully establish the case of the plaintiff that on 31.? 82 he had supplied the machineries to defendant no. 5 as per the quotation (Exhibit-1) submitted before defendant no. 4. Exhibit-7 is the satisfaction report submitted by defendant no. 5 stating therein that the machineries were in good working condition. All the abovementioned documents fully establish the case of the plaintiff that on 31.? 82 he had supplied the machineries to defendant no. 5 as per the quotation (Exhibit-1) submitted before defendant no. 4. Besides that there are several other documents of the plaintiffs as well as the documents brought on record on behalf of the defendants which proves that the plaintiff had supplied machineries to defendant no. 5. In this regard, Exhibit-11 and 11/a of the plaintiff and Exhibit-A/1 (agreement), Exhibit-C (order-sheet of Loan Case No. 5/1981 -82) are relevant. ExhibiM 1 is an official letter written by Sri D.H. Mandal, General Manager, District Industries Centre, Purnea, addressed to the Assistant Director, industries, Bihar, Patna. This letter is dated 24.6.83 and the letter shows that the General Manager had stated in the letter that due to non-availability of allotment in the year 1982-83 the payment of the bill of M/ s National Machineries (plaintiff) could not be done as such for payment of dues the defendant no. 4 demanded allotment of rupees fifty thousand. This ExhibiM 1 shows that till 24.6.83 there was no dispute that the plaintiff had not supplied the machineries to defendant no. 5, rather, ExhibiM 1 shows that defendant no. 4 was pressurising the authority concerned to make available rupees fifty thousand towards allotment so that the dues could cleared. Exhibit-11/A is another letter dated 29.3.84 written by the General Manager, District Industries Centre, Purnea to the Joint Director (Industries), Govt. of Bihar. This letter also shows that the General Manager had accepted that the plaintiff had supplied machineries to defendant no. 5 but due to non-availability of allotment the payment could not be made. In this letter, it has been specifically stated that it is altogether improper to keep the matter of payment of bill in abeyance. Thus, both the documents which have been filed on behalf of the plaintiff establishes that the department concerned i.e. District Industries Centre, Purnea, had accepted the delivery of machineries to defendant no. 5 and that the price of the machineries was to be paid to the plaintiff. Exhibit-A-1 of the defendant shows that when the quotation of the plaintiff was accepted by the Industries department the defendant no. 5 was asked to deposit Rs. 5 and that the price of the machineries was to be paid to the plaintiff. Exhibit-A-1 of the defendant shows that when the quotation of the plaintiff was accepted by the Industries department the defendant no. 5 was asked to deposit Rs. 6,000/- in the shape of NSC and to execute agreement and accordingly defendant no. 5 deposited NSC of the value of rupees six thousand and executed agreement on 31.3.82. There is nothing on record to show that defendant no. 5 gave any information to the Industries Department regarding nondelivery of machineries prior to 4.4.85 and it appears from Exhibit-B/1 that the defendant no. 5 in reply to letter no. 874 dated 4.4.85 of defendant no. 4, for the first time informed the department that machineries were not delivered to him by the plaintiff and all the documents of the plaintiffs in this regard are fake. It is difficult to rely upon this document in view of the fact that this has come in existence at a very late stage and also in view of the fact that defendant no. 5 himself had granted receipt of delivery of the machineries to the plaintiff with his endorsement and signature which is Exhibit-4/C. Likewise, Exhibit-C which is the order-sheet of Loan Case No. 5/81-82 shows that on the application of defendant no. 5 a loan amounting to rupees thirty thousand was sanctioned to the defendant no. 5 for purchase of machineries. 12. Thus, from all the abovementioned documents it stands proved that a loan amounting to rupees thirty thousand for purchase of machineries was sanctioned to defendant no. 5 by defendant no. 4 and in response to the notice the plaintiff had submitted quotation which was accepted by defendant no. 5 and by letter of acceptance (Exhibit-2) the defendant no. 4 had directed the plaintiff to deliver the machineries to defendant no. 5. From Exhibit-4/A it is established that the machineries were delivered to defendant no. 5 who made endorsement regarding the delivery of possession with his signature. Not only this the defendant no. 5 also submitted a satisfaction report (Exhibit-7). It is also clear from the above documents that the defendant no. 5. From Exhibit-4/A it is established that the machineries were delivered to defendant no. 5 who made endorsement regarding the delivery of possession with his signature. Not only this the defendant no. 5 also submitted a satisfaction report (Exhibit-7). It is also clear from the above documents that the defendant no. 4 verified the delivery and submitted verification report (Exhibit-6) and thereafter correspondences were made for payment of price vide Exhibit-11 and 11/A. The question is that when there was overwhelming documentary evidence on record which had established that the plaintiff had supplied the machineries to defendant no. 5 but the defendant no. 4 which had given an undertaking to repay the price had not paid the price of the machineries then in that situation the learned first appellate court was justified in rejecting the claim of the plaintiff merely on the ground that it was not possible for defendant no. 4 to go to village Mohaniya on a day which was the last day of the financial year and to inspect the installation of machineries at the place of defendant no. 5. It is true that visit of defendant no. 4 at the place of defendant no. 5 for verification of delivery of machineries and his submission of verification report attracts some doubt in my mind because of the fact that the Log Book (Exhibit-D) and T.A. Bill of defendant no. 4 of that date (31.3.82) do not show that on 31.3.82 the defendant no. 4 had visited the place of defendant no. 5 where the machineries were installed but l am of the view that it is unjust and improper to discard the overwhelming evidence of the plaintiff in support of the fact of supply of machineries to defendant no. 5 by him on the ground of mere suspicion and, therefore, I am of the view that the first appellate court has committed grave error of law by refusing the claim of the plaintiff and rejecting the overwhelming documentary evidence adduced on behalf of the plaintiff without assigning sufficient reasons. I am further of the view that if the appellate court was having any doubt that defendant no. 4 was in collusion with the plaintiff and he had issued fake satisfaction report then in that situation the first appellate court should have directed the State of Bihar to recover decretal amount from the salary of defendant no. 4. I am further of the view that if the appellate court was having any doubt that defendant no. 4 was in collusion with the plaintiff and he had issued fake satisfaction report then in that situation the first appellate court should have directed the State of Bihar to recover decretal amount from the salary of defendant no. 4. 13. Thus, on the basis of the above discussion, I hold that the first appellate court has erred in holding that the machineries were not supplied to defendant no. 5 by plaintiff without considering Exhibit-11 series and other documentary evidence brought on record on behalf of the plaintiff. Accordingly, this substantial question of law is decided in favour of the plaintiff. 14. In the result, I find merit in this appeal and, accordingly, this appeal is allowed and the judgment and decree of the first appellate court are hereby set aside and the judgment and decree of the trial court are hereby restored and the suit is hereby decreed. It is, however, observed that if the District Industry Department or the State Government on completion of enquiry against the defendant no. 4 (Siya Saran Sinha, the then General Manager of District Industries Centre, Purnea) finds that the said defendant no. 4 was in collusion with the plaintiff and had issued fake certificate then in that case the department concerned or the State Government shall realise and recover the entire decretal amount from the salary/pensionary benefits of the defendant no. 4. It is further observed that on the ground of pendency of enquiry against the defendant no. 4, there should not be any delay in making payment of decretal amount to the plaintiff-appellant. 15. No order as to costs.