Govt. Of U.P. Through The Chief ... vs S.A. Khan, Sole Proprietor Of ...
2010 Latest Caselaw 4578 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                        RFA No.323/2006
                                 Judgment delivered on:28.09.2010

Govt. of U.P. through the Chief Secretary
Annexee Lucknow                               ..... Appellant
                     Through:Mr. M.A. Rahman, Advocate

                            Versus

S.A. Khan, Sole Proprietor of National Road Constructions
                                                ..... Respondent
                    Through: Mr. Lalit Gupta and Mr. Deepak
                               Aggarwal, Advocates

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may          No
   be allowed to see the judgment?

2. To be referred to Reporter or not?                 No

3. Whether the judgment should be reported             No
   in the Digest?

KAILASH GAMBHIR, J. Oral:
*

1. By this appeal filed under section 96 of the Code of Civil

Procedure, 1908, the appellant seeks to set aside the judgment and

decree dated 23.08.2005 passed by the court of Additional District

Judge, Delhi whereby the suit for recovery has been decreed in favour

of the respondent and against the appellant.

2. Brief facts relevant for deciding the present appeal are as

that the respondent is engaged in the business of giving on hire road

rollers and that he gave a quotation for giving on hire the road roller

to the appellant which was accepted vide order no.121/Camp/50

dated 9.6.1999. That the payment towards hire charges was not made

by the appellants and on serving a legal notice dated 18.4.2001, a sum

of Rs.52, 000/- was paid to the respondent vide cheque dated 7.9.2001

but a balance amount of Rs. 3,94,375/- was still pending. Thereafter,

the respondent filed a suit for recovery of the balance amount and the

same vide judgment dated 23.8.2005 has been decreed in favour of

the respondent and against the appellant. Feeling aggrieved with the

same, the appellants have preferred the present appeal.

3. Counsel for the appellant submits that no agreement in

writing took place between the parties for hiring the road roller and in

the absence of any such contract the ld. Trial court has given a wrong

finding to accept the version of the respondent. Counsel for the

appellant further submits that the alleged quotations dated

07.06.1999 and 09.06.1999 cannot be treated as an agreement or a

contract between the parties. Counsel further submits that the

respondent was paid the entire amount towards the hiring charges of

the road roller i.e. an amount of Rs.52,000/- and no other amount was

left to be paid by the appellant. Counsel for the appellant further

submits that the respondent failed to prove the supply of road rollers

to the appellant and in fact the payment made by the appellant was

due to mistake and oversight for which the appellant is entitled to be

reimbursed.

4. Refuting the said submissions of the counsel for the

appellant, Mr. Lalit Gupta, counsel for the respondent, supports the

impugned judgment passed by the Ld. Trial Court. Counsel submits

that the respondent has proved on record the quotations and orders

placed by the appellant towards the hire charges of the road rollers.

Counsel further submits that the part payment of Rs.52,000/- was

made by the appellant but the remaining amount of Rs.3,94,375/- was

not paid by the appellant.

5. I have heard Ld.counsel for the parties.

6. It is not in dispute between the parties that a sum of

Rs.52,000/- was paid by the appellant towards part payment for the

supply of the road rollers on hire basis. The stand taken by the

appellant that the said payment was wrongly made is not only

misconceived but is false and vexatious. It is quite apparent that the

appellant did not take any steps for recovery of the said amount from

the respondent which is alleged to have been wrongly paid by the

appellant. The ld. Trial Court did not give credence to the defence of

the appellant as the defence of the appellant was found contradictory

in nature. The ld. Trial Court observed that on the one hand it is the

case of the appellant that no road roller was supplied to the appellant

on hire and on the other hand the case of the appellant was that the

payment was made to the respondent on the basis of work done.

Perusal of Ex. PW- 1/19 which is a letter dated 21.09.2001 written by

the appellant to the respondent clearly shows that payment of

Rs.52,000/- was made by the appellant towards hire charges for the

road roller and for the remaining amount the appellant stated that the

matter is under consideration with the concerned department.

Quotation dated 07.06.99 was also proved on record by the

respondent as Ex. PW- 1/1 and vide letter dated 11.06.1999 Ex. PW-

1/3 the appellant duly notified the respondent about the supply of one

diesel road roller against the said order. The demand for the balance

amount raised by the respondent vide letter dated 16.10.2001 is

proved on record as Ex. PW- 1/20 and the said demand was also

raised by the respondent through legal notice dated 18.04.2001 Ex.

PW- 1/22. In the face of all these documents proved on record by the

respondent, I do not find any illegality or perversity in the impugned

order passed by the Ld. Trial Court. There is no merit in the present

appeal, the same is hereby dismissed.

7. Vide order dated 27.07.2006, direction was given to the

appellant to deposit an amount of Rs.3,94,375/- and the said amount

is lying deposited in this court. The Registry is directed to release the

said amount along with interest accrued thereupon in favour of the

respondent and still if any amount is left to be paid by the appellant,

the respondent will be at liberty to seek recovery of the same.

September 28, 2010                           KAILASH GAMBHIR, J
pkv