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2016 DIGILAW 154 (ORI)

State of Orissa v. Choudhury Metal Industries

2016-02-23

B.P.RAY

body2016
JUDGMENT B.P. RAY, J. - This appeal at the instance of the defendants has been preferred against the judgment and decree dated 16.12.1992 and 11.01.1993 respectively, passed by the learned Subordinate Judge, Bolangir, in Money Suit No. 96 of 1989, partly decreeing the money claim of the Plaintiff (Respondent herein) and holding the defendants jointly and severally liable to pay to the plaintiff a sum of Rs. 97, 437. 54 paise. 2.Plaintiff’s case is that being a Manufacturer and Order Supplier of various articles relating to public health, it was having business transaction with the Public Health Department, Bolangir and was being paid the price of the articles supplied as per bills, by the defendant No. 3 (Appellant No. 3 herein). Although in usual course of Business, the plaintiff supplied articles worth Rs. 50,188/- to Public Health Department under bill Nos. 6, 15 & 21 in the year 1985, and worth Rs. 64,271.74 paise in the year 1983 under different bills. Those bills remained unpaid for which it approached the defendant No. 3 for several times and it was informed on 30.06.1987 that approval from higher authority was awaited. Due to such illegal detention of its bills and withholding of the payments, the Plaintiff issued notice under Section 80 of CPC to the defendants on 01.08.1998 which was received by them on 18.08.1988. Despite such notice, when no payment was made, the plaintiff filed the suit claiming recovery of Rs. 1,73,255.83 paise with interest from the defendants. 3.The defendants Nos. 1 & 3 (Appellant Nos. 1 & 3 herein) resisted the suit by filing a joint written statement. As regards the claim of the plaintiff to the tune of Rs. 50,188/- under bill Nos. 6,15 & 21 of the year 1985, the defendants pleaded that part payment of Rs. 17,002.40 paise had already been made and the rest amount remained unpaid as the rate of the supplied articles was exorbitant compared to the approved rate. In so far as the claim against the bills of the year 1983 is concerned, the defence plea is that since the articles under those bills were supplied without issuance of purchase order from the competent authority and were received and utilized by Jr. Engineer/ SDO in violation of the Codal Procedure, Higher Departmental Authorities were moved and pending receipt of approval from higher level, payment could not be made against those bills. Engineer/ SDO in violation of the Codal Procedure, Higher Departmental Authorities were moved and pending receipt of approval from higher level, payment could not be made against those bills. The contesting defendants also questioned the maintainability of the suit on some technical grounds. 4.The learned trial Court framed the following issues:- 1. Whether the plaintiff supplied the goods to the defendants as per the legal order placed with him? 2. Whether the defendants utilized the goods supplied by the plaintiff and liable to pay the cost? 3. Whether the plaintiff has cause of action and notice served is valid? 4. Whether the plaintiff is entitled to the relief claimed for? 5.The plaintiff adduced evidence, both oral and documentary, in support of its case as against no evidence from the side of the defendants. The learned trial Court on appreciation of the evidence found, inter alia, that as against supply of articles under bill Nos. 6, 15 & 21, part payment of Rs. 17,002.40 paise having already been made, a sum of Rs. 33165.40 paise only remained due and that the articles worth Rs. 64.271.74 paise under seven number of bills of the year, 1983 marked as Exts. 2 to 8 though supplied by the plaintiff in absence of any purchase order, were received and utilized by the defendants, the Plaintiff is entitled to the price thereof in view of the provision of Section-70 of the Indian Contract Act, 1872. The learned trial Court, ultimately, decreed the suit part granting the relief as already stated. Hence this appeal. 6.Learned counsel for the appellants contended that the finding of the trial Court that the defendants utilized the articles, being based on no evidence, and when admittedly, there was no purchase order for supply of the articles under the bills vide Exts. 2 to 8, the defendants could not have been saddled with the liability to make the payment. His further contention is that the trial Court committed a gross error in not taking up the question of maintainability of the suit although the claim of the Plaintiff is apparently barred by limitation, and there has also not been due compliance with the mandatory provisio of Section 80 CPC. His further contention is that the trial Court committed a gross error in not taking up the question of maintainability of the suit although the claim of the Plaintiff is apparently barred by limitation, and there has also not been due compliance with the mandatory provisio of Section 80 CPC. 7.On the other hand, learned counsel for the Plaintiff-Respondent submitted that the findings and conclusion arrived at by the learned trial Court being based upon correct appreciation of admitted facts and evidence on record, the appeal is misconceived and liable to be dismissed. So far as the questions of limitation and statutory notice are concerned, his submission is that as per the own pleading of the defendants that referred the matter to higher authority and waited for approval, the suit is well within the time and there was due compliance with Section 80 CPC. 8.Keeping in view the rival contentions, I have gone through the impugned judgment vis-à-vis the pleadings of the parties and issues formulated in the suit. So far as the price of the goods supplied under the bill Nos. 6, 15 & 21 is concerned, it is the own admission of the defendants vide paragraph-4 of their written statement that Rs. 33,165/- remained outstanding for the reason of exorbitant price being claimed by the Plaintiff. There is , however, nothing from the side of the defendants much less through ;any; evidence to justify the reason as cited for withholding the payment. So far as the claim of the Plaintiff against the bills of the year 1983 vide Exts. 2 to 8 is concerned, there is no denial from the side of the defendants to the fact that the plaintiff supplied the articles under those bills. The endorsement made on those bills and notings in the Measurement Book vide Exts. 17/a to 17/g further show that those articles were taken to the stock and utilized by the Jr. Engineer or Asst. Engineer working under the defendant No. 3. The plaintiff has also led evidence to show that sometimes articles were being supplied by him; on oral indent too meet urgent need. 17/a to 17/g further show that those articles were taken to the stock and utilized by the Jr. Engineer or Asst. Engineer working under the defendant No. 3. The plaintiff has also led evidence to show that sometimes articles were being supplied by him; on oral indent too meet urgent need. In the given facts and circumstances and on the basis of the evidence on record, the learned trial Court rightly affirmed the liability of the defendants to pay for those goods in view of the provision of Section 70 of the Indian Contract Act, 1872 inasmuch as supply of those goods by the plaintiff was not a gratuitous act, but in ordinary course of its business transaction. The learned trial Court further considering the fact that the supply was made without any written purchase order which was a departure from the normal practice, declined to award any interest. 9.As regards the question of notice under Section 80 CPC, I find no force in the contention of the appellants inasmuch as they vide paragraph-9 of their written statement clearly admitted that they received the said notice and issued reply thereto, and nothing appears to have been pleaded by them questioning the validity of the said notice. I am also unable to countenance the contention of the appellants on the question of limitation, it is the own plea of the defence that the defendant No. 3 referred the matter to higher authority and pending receipt of necessary approval from that level, no payment could be made to the Plaintiff. To put in other words, they did not disown their liability to pay for the goods supplied, but kept the Plaintiff in wait on the ground of non-receipt of approval from the higher authority. In that view of the matter, the period of limitation for the suit did not cease, notwithstanding the fact that the claim of the Plaintiff related to the goods supplied in the years 1983 and 1985 and the suit was filed in the year 1989. 10.For the discussion as above, the appeal of the defendant appellants is found to be devoid of any merit. Resultantly, the judgment and decree passed by the learned Court below is hereby confirmed. The appeal is dismissed on contest with consolidated cost of Rs. 5,000/- (Five thousand rupees). Appeal dismissed.