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2017 DIGILAW 1204 (GAU)

GREAVES COTTON AND CO. LTD. v. STATE OF ASSAM

2017-08-30

KALYAN RAI SURANA

body2017
JUDGMENT : Kalyan Rai Surana, J. Heard Mr. D.C. Kath Hazarika, the learned counsel for the appellant and Dr. B. Ahmed, the learned Standing Counsel for the Irrigation Department, State of Assam, the respondents herein. 2. This appeal under section 96 CPC is directed against the judgment and decree dated 21.06.2003 passed by the learned Civil Judge (Senior Division) No.3, Kamrup, Guwahati in Money Suit No. 46/1997, by which the suit filed by the appellant-plaintiff was dismissed. 3. The brief facts of the case is that the appellant-plaintiff had instituted the suit for recovery of money amounting to Rs. 8,72,100/- (Rupees Eight lakh seventy two thousand one hundred only) on account of supply of electric pumps to the Irrigation Department, State of Assam. The suit was filed after issuing notice under Section 80 CPC and the appellant claimed interest at the rate of 18% per annum on the claimed amount. The State Respondents contested the claim by filing their written statement, stating that the supplies were incomplete as out of 20 pump sets supplied, 14 of such pumps were supplied without gland pressure plate and necessary holes for fixing pumps on base frames for which bills could not be prepared and therefore, it was stated that the appellants-plaintiffs were not entitled to any relief. 4. In course of trial, 6 issues were framed by the learned trial court and the plaintiff and defendants examined one witness each. The issues were as follows :- 1. Whether there is cause of action for this suit? 2. Whether the suit is barred by limitation? 3. Whether the plaintiff failed to supply all the materials as per order dated 27.11.92? 4. Whether the defendants are liable to pay an amount of Rs. 8,72,100/- to the plaintiff together with an interest @ 18% per annum? 5. Whether the plaintiff is entitled to get any relief as prayed for? 6. What other relief/reliefs the parties are entitled to? 5. The learned trial court decided issues No.1 in favour of the plaintiff. As regards issue No.2 on limitation, it was held that supply order was issued on 27.11.1992, the defendants received the pump sets on 11.03.1993. The defendants intimated the plaintiff on 31.03.1993, 25.06.1993 and 20.12.1993 (Ext.A, B and C) that supply of 14 out of 20 pumps were made without gland pressure plates and to complete the supply. As regards issue No.2 on limitation, it was held that supply order was issued on 27.11.1992, the defendants received the pump sets on 11.03.1993. The defendants intimated the plaintiff on 31.03.1993, 25.06.1993 and 20.12.1993 (Ext.A, B and C) that supply of 14 out of 20 pumps were made without gland pressure plates and to complete the supply. It was held that limitation for recovery of money for goods delivered was 3 years under Article 14 of the Schedule of the Limitation Act, 1963 and, as such, the suit filed on 18.02.1997 was beyond the period of limitation and, as such, the relief was barred by limitation. Hence, issue No.2 was answered against the plaintiff. The important issue No.3, was whether the plaintiff failed to supply all the materials as per order dated 27.11.1992. In this regard, it was held that the defendants failed to produce any receipt of acknowledgement of receipt of letters (Ext.A, B and C) by the plaintiff and, as such, the said issue was decided in favour of the plaintiff. The rest of the issues was decided against the plaintiff because the suit was found to be barred by limitation. Hence, the suit was dismissed. 6. Both sides had advanced their arguments by extensively referring to the examination and cross-examination of witnesses from both sides to support their respective arguments. From the said arguments, the following points of determination arises for consideration by this court, which are :- a. Whether in light of finding that the plaintiff had supplied 20 electric pumps to the Irrigation Department, State of Assam, the State respondents are entitled to take shelter under the law of limitation to deprive the plaintiff of its dues? b. Whether the appellant-plaintiff is entitled to the decree as prayed for? 7. It is not in dispute that the finding recorded by the learned trial court that supply order was issued on 27.11.1992, the invoice (Ext.B) was raised by the plaintiff on 15.02.1993, the defendants received the pump sets on 11.03.1993 and the suit was filed on 18.02.1997 is absolutely correct and is supported by the pleadings and evidence on record. 8. As per the evidence of the parties, both the plaintiff and the defendant were permitted to mark their respective exhibits from alphabets - 'A', 'B', 'C', etc. 8. As per the evidence of the parties, both the plaintiff and the defendant were permitted to mark their respective exhibits from alphabets - 'A', 'B', 'C', etc. From the perusal of the contents of Plaintiff Ext.C, Ext.C-1 and Ext.C-2, there cannot be any dispute that 20 Pump Sets and 20 Base Frames and other items like starter, etc. were despatched by the plaintiff to the defendant. However, the Defendant's exhibits, being letter dated 31.03.1993 (Ext.A), letter dated 25.06.1993 (Ext.B) and letter dated 20.12.1993 (Ext.C), are all photocopies. By the said letter at Ext.A, while acknowledging receipt of supplies vide Plaintiff Ext.C, Ext.C-1 and Ext.C-2, it merely states that the plaintiff had failed to carry out order fully as per agreement. Vide Ext.B, the plaintiff was informed to carry out the work in full and vide Ext.C, the plaintiff was requested to make complete supply of the pumps in full. Therefore, having acknowledged the receipt of goods, the veracity of contents of letters at Defendant Ext.B and Ext.C is doubtful. The supply order at plaintiff Ext.A speaks of supply of 20 pump sets as per specifications contained in Annexure-A thereof, together with (1) Insuration (sic.) manual, (2) Parts catalogue, (3) Manufacturer Standard of tests if it is manufactured by its manufacturer, (4) E.D. Gate Pass, (5) Manufacturers test certificate, and (6) Guarantee Cards should be supplied with the supply of pump sets. The cost was inclusive of F.O.R. Consignee's Division/Sub-Division Work-shop. The gland pressure plate is not specifically mentioned in Annexure-A appended to the supply order, i.e. Plaintiff Ext.A. 9. The learned Trial Court had rightly appreciated the evidence and has correctly decided issue No. 3 that pumps were supplied to the defendants and that the defendants could not prove the service of Defendant Ext.A, Ext.B and Ext.C to the plaintiff. Therefore, the only thing that is required to be answered is the point of determination No.1 as to whether in light of finding that the plaintiff had supplied 20 electric pumps to the Irrigation Department, State of Assam, the State respondents are entitled to take shelter under the law of limitation to deprive the plaintiff of its dues? 10. Therefore, the only thing that is required to be answered is the point of determination No.1 as to whether in light of finding that the plaintiff had supplied 20 electric pumps to the Irrigation Department, State of Assam, the State respondents are entitled to take shelter under the law of limitation to deprive the plaintiff of its dues? 10. In this regard, this court by referring to the case of Madras Port Trust v. Hymanshu International, by its Proprietor, V. Venkatadri (Dead) by LRs., (1979) 4 SCC 176 : AIR 1979 SC 1144 , had posed a query to the learned Standing Counsel appearing for the State on 27.07.2017, when the matter was last heard to impress upon the State to consider the said judgment where the Hon'ble Supreme Court had holistically stated that the State should not take the plea of limitation to defeat the legitimate claim of a citizen. This was done because, it would be a really sad day, when a citizen should really loose all faith on the State and treat it as an unscrupulous party and file suit for recovery of money by doubting the intention of the State to defeat their claim by taking plea of limitation. The learned Standing Counsel for the State of Assam however expressed his inability to make an admission without any instructions in writing. This Court is of the opinion that it is a general feature that citizens show leniency against the State, knowing its financial constraints, and does not rush to Court for recovery of money, but display faith when State machineries take a plea of time being consumed in processing bills. 11. Notwithstanding that the suit is barred by limitation, but in the present case it is found that the appellant-plaintiff is found to have duly made the supply of 20 water pumps to the Respondent-Defendants. The defendants do not dispute the receipt of pumps. Therefore, if the supply was not in full, it was obliged to return the goods back and terminate the contract. The transactions being non-gratuitous, it is not open for the model employer like the State of Assam to keep the 20 pumps and under section 70 of the Contract Act, 1872, its liability to pay remains. Therefore, if the supply was not in full, it was obliged to return the goods back and terminate the contract. The transactions being non-gratuitous, it is not open for the model employer like the State of Assam to keep the 20 pumps and under section 70 of the Contract Act, 1872, its liability to pay remains. Moreover, the plea taken in the written statement that gland plates were not supplied is not the plea taken in Defendant Ext.A, Ext.B and Ext.C. The mention of gland plates is not evident from Plaintiff Ext.A i.e. the Supply order. Therefore, in this case, by applying the case of Madras Port Trust (supra), the State of Assam is not permitted to take the plea of limitation to defeat the genuine dues of the plaintiff. 12. In view of the discussions above, although this Court is inclined to agree with the decision by the learned trial court on issue No.2 that the suit is indeed barred by limitation, but by applying the case of Madras Port Trust (supra), the State of Assam is not permitted to take the plea of limitation to defeat the genuine dues of the plaintiff. Hence, the issue No.2 is answered accordingly. 13. Consequently, the second point of determination is answered in the affirmative and in favour of the plaintiff by holding that the appellant-plaintiff is entitled to the decree as prayed for. The issues No. 4, 5 and 6 is, therefore, answered in the positive in favour of the appellant-plaintiff by holding that it is entitled to the decree for a sum of Rs. 8,72,100/- towards the cost of 20 water pumps. However, the relief of any interest is refused, as the claim was otherwise barred by limitation. 14. The State Respondents are directed to make payment of the decreetal amount of Rs. 8,72,100/- (Rupees Eight lakhs seventy two thousand one hundred only) within a outer period of 90 days from today, failing which the said sum would carry interest at the rate of 15% per annum on and from the 91st day from today till recovery of the decreetal sum. 15. As this order is passed under the facts unique to this case, it is made clear that this order is not to be treated as a precedent. 16. The appeal is, thus, allowed. The parties shall bear their own cost all throughout. 17. 15. As this order is passed under the facts unique to this case, it is made clear that this order is not to be treated as a precedent. 16. The appeal is, thus, allowed. The parties shall bear their own cost all throughout. 17. Let a decree be drawn up. The LCR be also returned.