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2007 DIGILAW 372 (UTT)

State of Uttaranchal and another v. S. S. lamba

2007-07-10

RAJESH TANDON

body2007
Judgment - Heard standing counsel for the State and Shri Anil Kumar Bisht, counsel for the respondent. 2. By the present first appeal filed under Section 96 of Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 15-7-2004 passed by the District Judge, Pithoragarh in civil suit no. 12 of 2003. 3. Briefly stated, a suit was filed by the plaintiff S.S. Lamba against the defendant no.1 i.e. the Executive Engineer, Irrigation Constitution Division, Pithoragarh for recovery of Rs. 83,470/- alongwith the interest @ 18% per annum till the entire amount is paid. 4. According to the case of the plaintiff, the firm Lamba and Company, has supplied the G.I. Band, G.I.C. Di-set and Chain Rinch to the department of defendant no.1 in pursuance of the written as well as oral orders placed by the department of defendant no. 1. In the year 1989, from the month of July to October, the plaintiff has supplied the goods to the defendant no. 1. On 3-10-1989 the plaintiff firm has supplied the goods to the extent of Rs. 83, 470/- to the department of defendant no. 1 in its store situate at Pithoragarh which was received by the defendant no. 1. It has been alleged that the defendant no. 1 has not made the payment for the said goods. He has requested several times, orally and in writing, and the department has always assured for the payment of the same but he has not been paid the amount. The defendant no. 1 has also acknowledged by its letter dated 10-8-1995 to the effect that the goods dispatched by the plaintiff have been received. The plaintiff has not been paid for the same where in point of fact the department of the defendant no. 1 is using the goods delivered by him. The plaintiff has also sent a notice under Section 80 of Code of Civil Procedure but inspite of the notice the defendant no.1 has failed to make the payment, hence the suit. 5. The defendant no. 1 has filed the written statement and has submitted that the plaintiff has been paid for his all dues. Further, it has been stated that the department has neither placed any order on 3-10-1989 for supply of goods to the extent of Rs. 83,470/- nor has received the same at Pithoragarh Depot. 5. The defendant no. 1 has filed the written statement and has submitted that the plaintiff has been paid for his all dues. Further, it has been stated that the department has neither placed any order on 3-10-1989 for supply of goods to the extent of Rs. 83,470/- nor has received the same at Pithoragarh Depot. The delivery of goods and assurance to payment for the same has also been denied. It has been submitted that if the plaintiff makes available the copy of the order, action may be taken for the payment as demanded. In the additional pleas, it has been submitted that the suit of the plaintiff is barred by time. A prayer has been made that the suit of the plaintiff may be dismissed with costs. 6. On the pleadings of both the parties, the District Judge has framed the following issues:- 7. While deciding issue nos. 1 and 2, the trial court has recorded the finding that the goods were received at the Pithoragarh depot of defendant no. 1. It has also been recorded that the defendant no. 1 has not made the payment even after he has supplied the goods. There is no fault on account of the plaintiff hence he is entitled for getting the amount. The trial court has recorded the finding as under : 8. So far as issue no. 3 is concerned, the trial court has recorded the finding that the suit has been filed within the time limit and is not barred by the time. 9. On the basis of the aforesaid findings, the trial court has decreed the suit for recovery of Rs. 83,470 from the defendant no. 1 alongwith the interest @ 6 per cent per annum from 3-10-1989 to the final payment. 10. As will appear from the letter dated 10-8-1995 i.e. Ex. 3, that the defendant has admitted the delivery of goods. In the letter dated 16-8-1995, there has been a mention with regard to the payment of Rs. 71,715.50. 11. Counsel for the appellant has argued that there is no written contract. 10. As will appear from the letter dated 10-8-1995 i.e. Ex. 3, that the defendant has admitted the delivery of goods. In the letter dated 16-8-1995, there has been a mention with regard to the payment of Rs. 71,715.50. 11. Counsel for the appellant has argued that there is no written contract. It is well settled that even if there is no document in writing even then promissory estoppel applies in view of the judgment of Food Corporation of India and others v. Babulal Agarwal with Babulal Agarwal v. Food Corporation of India and others reported in (2004) 2 Supreme Court Cases 712, where it has been held that in case one who holds out a promise, backs out, he will have to compensate the party who acted bona fide on the basis of promise made. The Apex Court has relied on the various judgments, namely, Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. (1979) 2 SCC 409: 1979 SCC (Tax) 144 : AIR 1979 SC 621 and Delhi Cloth and General Mills Ltd. v. Union of India (1998) 1 SCC 86 :AIR 1987 SC 2414 and has held that non-execution of the contract in terms of Article 299 of the Constitution of India does not militate against the applicability of the doctrine of promissory estoppel against the Government. 12. In view of the judgment (supra), if the item has been supplied by the plaintiff respondent, he is entitled for payment of the amount. 13. In view of the aforesaid, the judgment and decree passed by the trial court requires no interference under Section 96 of Code of Civil Procedure. 14. First appeal lacks merit and, therefore, is dismissed.