M/S. Hindustan Roller Supply Co. vs State Of Uttar Pradesh & Anr.
2012 Latest Caselaw 4 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA No. 537/2003

%                                                        2nd January, 2012

M/S. HINDUSTAN ROLLER SUPPLY CO.           ..... APPELLANT
                       Through: Mr. K.K. Kaul, Advocate.
                   versus

STATE OF UTTAR PRADESH & ANR.                   ..... RESPONDENTS
                      Through:              Mr.       Amritansh  Batheja,
                                            Advocate for Mr. Anil Mittal,
                                            Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J. (ORAL)

1. This Regular First Appeal filed under Section 96 of the Code of

Civil Procedure, 1908 (CPC) impugns the judgment of the trial Court dated

13.1.2003 and as modified by the subsequent judgment dated 18.5.2010. By

the original judgment dated 13.1.2003, the suit of the appellant/plaintiff for

recovery of an amount of ` 4,94,824/- (` 3,20,600 being the principal amount

and ` 1,73,124 as the interest @ 18% per annum) being the claim for hire

charges towards supply of road rollers to the respondent No.1/Government of

U.P. was dismissed on two counts. The first count was of limitation and the

second count of merits of the claim having not been proved. By an order of a

Division Bench of this Court dated 12.5.2005 in RFA No.537/2003, which

challenged the original judgment dated 13.1.2003 the matter was remanded to

the trial Court on the issue of limitation with an entitlement to the

appellant/plaintiff to lead additional evidence, and for the trial Court

thereafter to give its findings and return the evidence with its findings to this

Court on the point of limitation. By the subsequent judgment dated

18.5.2010, passed pursuant to the remand order, the trial Court has held the

suit to be within limitation.

2. The facts of the case are that the appellant/plaintiff filed the

subject suit for recovery of monies with respect to seven bills detailed in

Annexure-A to the plaint and which are as under:-

        "    ANNEXURE „A‟
        The Details of Bills of Road Roller No.M.R.103:-
     Sl. No.     Bill No.         Date          Period           Amount
                                                                 ` PPP
     1.            2902          30.4.1997       11.10.96     to 45,600/-
                                                 31.12.96
     2.            2905          30.4.1997       1.1.1997     to 57,000/-
                                                 31.3.1997
     3.            2904          30.4.1997       1.1.97       to 15,400/-
                                                 21.4.97
     4.            2907          24.8.1997       22.4.1997    to 30,100/-
                                                 31.5.1997
     5.            2908          24.10.97        1.6.97       to 98,500/-
                                                 30.9.97

         The debit of Bill of Road Roller No.M.R.703
     Sl. No.      Bill No.         Date          Period          Amount
     1.           2877             31.12.96      20.3.96      to 16,800/-
                                                 14.4.96
     2.           2909             24.10.97      26.7.97      to 57,200/-
                                                 30.7.97

3. The defence/contention of the respondents/defendants was that

the appellant/plaintiff never submitted these bills and therefore there does not

arise any question of payments with respect to these bills.

4. Learned counsel for the appellant/plaintiff firstly argued before

this Court that once there is a subsequent judgment of the trial Court dated

18.5.2010 holding the suit to be within limitation, the appeal must

automatically succeed. It was secondly argued that in any case the appeal is

liable to succeed because the appellant in fact had given the bills stated in

Annexure-A to the plaint to the respondents/defendants and which is proved

from the letter dated 28.10.1997, Ex.PW1/12 sent by the appellant/plaintiff to

the respondents/defendants.

5. In my opinion, the original judgment dated 13.1.2003 is correct

and the suit was rightly dismissed by the trial Court.

The subsequent judgment dated 18.5.2010 holds the suit to be

within limitation on the ground of there existing a part payment being an

amount of Rs. 75,448/- by a bank draft dated 28.10.1997 and thus it was held

that the suit was within limitation which was filed on 24.10.2000 i.e within

three years from the part payment by bank draft of ` 75,448/- and which

extended limitation for three years from that date. In my opinion, the trial

Court has fallen into an error in passing the judgment dated 18.5.2010 holding

the suit to be within limitation except for two bills as stated hereinafter. As

per the facts which have emerged it is not in issue that there were various

contracts which were placed upon the appellant/plaintiff for supply of road

rollers and which contracts were for different periods from 25.3.1996 to

8.4.1997. The last contract dated 8.4.1997 was for supply of road rollers from

1.4.1997 to 30.9.1997. It is not the case of the appellant/plaintiff as per the

plaint filed that the subject suit is for recovery of monies on account of a

running account which is maintained between the parties and which would be

governed by Article 1 of the Limitation Act, 1963. The subject suit is for

recovery with respect to seven bills which are stated in Annexure-A to the

plaint and details of which are given above. Since as per the contracts

between the parties, no period is provided from payment of the bills, the claim

with respect to the bills will commence either from the period for which the

road rollers were supplied or at the very best when subsequently the bills were

raised. The last two bills, as per the plaint, have been submitted on

24.10.1997 and therefore except with respect to these two bills, i.e. for other

five bills, the suit will be beyond limitation. With respect to bill Nos.2908

and 2909 dated 24.10.1997, since the suit was filed within a period of three

years i.e. on 24.10.2000, (the date on which limitation commenced has to be

excluded by virtue of Section 12(1) of the Limitation Act, 1963) the suit with

respect to two bill numbers 2908 and 2909 for ` 98,500/- and ` 57,200/-

respectively will only be within limitation. Qua the claim for the other five

bills, it is held that the suit was time-barred.

6. The next issue thereafter to be looked into as to whether the bills

which are the subject matter of Annexure-A; including two bills Nos.2908

and 2909; were ever raised upon/delivered to the respondents. The trial

Court, in this regard, has held as under:-

"14. In order to prove the claim for these two bills the plaintiff has to serve the bills upon the defendants for the payment, and in his examination-in-chief though he has deposed in his affidavit filed in lieu of examination-in-chief that he has submitted the bills; but on cross-examination he had specifically stated that he had not taken the receipt of the bills which he had submitted in the department and that he had sent the bills Ex.PW1/5 to Ex.PW1/11 to the department through post and he has further deposed that he has not filed the postal receipts of the same in the Court file. Therefore, in view of this statement made by the PW-1 on cross- examination, it appears that the bills have been sent to the defendant by post but no document has been placed on record to prove the service of such bill upon the defendant. The document Ex.PW-1/12 has been relied by the plaintiff to prove that the bills has been submitted to the defendant no.2, and on argument it is submitted that the said document Ex.PW1/12 was bearing the receipt of the said bill. Once the witness has specifically admitted that he had taken no receipt regarding the submission of the bills form the department and that he has sent these bills by post but no postal receipt in that regard has been proved for sending the said bills to the defendant and receipt thereof through the postal authorities, I find that the said document Ex.PW-1/12 relied by the plaintiff cannot be relied as a conclusive proof to submit the bills with the defendant. Therefore, I find that in absence of receipt of the said letter duly executed by a competent person on behalf of the defendant No.1 or 2 either on the said letter and in the absence of any postal receipt produced and proved on record to prove the transmission of that letter and receipt thereto by the defendant, I find that the plaintiff bitterly failed to prove the service of these bills upon the defendant. Therefore, I find that the plaintiff cannot be held entitled to recover the amount of Ex.PW1/9 and Ex.PW-

1/11 unless he proves by reliable evidence the service of these bills upon the defendants which he bitterly failed, as found above, and, therefore, I find that the plaintiff cannot be held entitled to claim that amount from the defendant unless the bill has been duly served upon the defendant with the log book of the driver concerned. So the claim of the plaintiff for that amount remains pre-mature, and, therefore he cannot be held entitled to recover ` 1,55,700/-. So this issue stands decided in favour of the defendants and against the plaintiff." (emphasis added)

I agree with the aforesaid findings and conclusions of the trial

Court inasmuch as once the appellant/plaintiff takes up a case that bills were

sent by post and he fails to file and prove any postal receipts for service of

these bills, it is rightly held that these bills were never submitted to the

respondent No.1/State of U.P. In the examination in chief, it was submitted

on behalf of the appellant/plaintiff that no receipts were taken with respect to

the bills submitted inasmuch as the bills were sent by post. Once the

appellant/plaintiff therefore failed to prove that the bills, Ex.PW1/5 to

Ex.PW1/11, the subject matter of Annexure-A to the plaint were ever served

on the respondents, obviously it must be held that they would not be genuine

bills for which payment had to be made by the respondent No.1/State of U.P.

This aspect of the bills not having been supplied is strengthened by the fact

that if really work under these bills was done, then, surely the

appellant/plaintiff would have filed and proved on record the log books

containing the signatures of the driver and possibly the counter-signatures on

behalf of the respondents/defendants showing that road rollers in fact were

supplied for the period which are the subject matter of the bills stated in

Annexure-A to the plaint. After all, a substantial monetary liability of `

3,20,600/- as the principal amount alongwith interest thereon @ 18% per

annum as claimed by the appellant/plaintiff cannot be fastened on the

respondents/defendants unless it is proved quite clearly that road rollers were

in fact supplied for the periods which are the subject matter of the seven bills

stated in Annexure-A to the plaint, and for which the bills were raised

upon/served on the respondents.

7. Learned counsel for the appellant/plaintiff sought to place

reliance upon the letter dated 28.10.1997 Ex.PW1/12 to show that the

disputed bills were in fact served on the respondents/defendants. Firstly, I do

not find any statement in the examination-in-chief made on behalf of the

appellant/plaintiff that this letter dated 28.10.1997 Ex.PW1/12 bears the

signatures of any officer/person of the respondents/defendants. Admittedly,

this letter dated 28.10.1997 was not sent by registered post or through any

other recorded post. Therefore, on the basis of such fragile evidence, it

cannot be said on preponderance of probabilities that this letter dated

28.10.1997, Ex.PW1/12 was ever served on the respondents/defendants.

8. It was then argued on behalf of the appellant/plaintiff that there

is no cross-examination on behalf of the respondents/defendants when this

letter was exhibited in the affidavit by way of evidence filed on behalf of the

appellant/plaintiff and therefore it was argued that it should be held that Ex.

PW1/12 stands proved to have been received by the respondents/defendants.

Unfortunately however, I cannot accede to this argument also inasmuch as

firstly a mere lack of cross-examination on this aspect is only one of the

aspects which has to be seen alongwith facts of the case in order to determine

how the conclusion has to be arrived at, in the facts of the case when we are

talking of a substantial monetary liability. I do not think that lack of cross-

examination in itself should in any manner enable the appellant/plaintiff to

discharge the onus of proof which was on the appellant/plaintiff that disputed

bills were in fact served on the respondents/defendants. Further, I have

perused the cross-examination conducted of PW-1, Sh. Chanchal Singh and in

this cross-examination dated 16.9.2002 there is a specific suggestion which is

put on behalf of the respondents/defendants that the bills in question were

never received by the respondents and to which the witness-Sh. Chanchal

Singh stated that "it is wrong to suggest that bills were never received in

the department". Therefore, it cannot be said that there is no cross-

examination that the disputed bills were not received by the department.

9. I thus do not find any reason to interfere with the impugned

judgment dismissing the suit of the appellant/plaintiff inasmuch as the

appellant/plaintiff failed to prove that disputed bills were in fact served upon

the respondents/defendants. As already stated above, the appellant/plaintiff

also failed to file and prove the log book to show if really road rollers were in

fact supplied for the periods which are the subject matter of the disputed bills.

10. In view of the above, there is no merit in this appeal, which is

accordingly dismissed, leaving the parties to bear their own costs. Trial Court

record be sent back.

VALMIKI J. MEHTA, J.

JANUARY 02 , 2012 Ne