Rajesh Kumar Saini vs Market Committee Tohana
2022 Latest Caselaw 17034 P&H

RSA No.251 of 2022 (O&M)                                             1

       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                  CHANDIGARH


Sr. No.104                                         RSA No.251 of 2022 (O&M)
                                                   Date of Decision: 16.12.2022


Rajesh Kumar Saini                                                   .... Appellant

                                          Versus


Market Committee, Tohana                                           ... Respondent



CORAM: HON'BLE MR. JUSTICE TRIBHUVAN DAHIYA

Present:     Mr. Munish Kumar Garg, Advocate
             for the appellant.
                    ***

TRIBHUVAN DAHIYA, J. (ORAL)

CM-491-C-2022

This application has been filed seeking condonation of delay of

409 days in filing the appeal.

For the reasons stated in the application, the same is allowed

and delay of 409 days in filing the appeal stands condoned.

RSA No.251 of 2022 (O&M)

This is defendant's appeal against the judgment of reversal in a

suit for recovery.

2. The facts of the case in brief are, the respondent/plaintiff filed a

suit for recovery of Rs.1,86,944/- along with interest at the rate of 18% per

annum from 03.05.2014 till realization. It was pleaded that defendant had

taken a contract for collecting jhar-phus/garbage for the year 2013-14 on

09.10.2014 for a sum of Rs.17 Lakh on the settled terms and conditions. Out

of the said sum, the defendant had paid an amount of Rs.15,18,500/- and the

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balance amount of Rs.1,81,500/- remained outstanding towards him. Despite

service of legal notice dated 03.04.2014 upon the defendant, the amount was

not paid.

3. The appellant/defendant contested the suit admitting that he had

taken a contract of collecting jhar-phus/garbage for the year 2013-14, in

pursuance thereof, an amount of Rs.15,18,500/- already stood paid. Service

of legal notice upon him was also admitted. It was averred that the defendant

being the highest bidder, was given the tender to lift jhar-phus/garbage from

Anaj Mandi, Tohana, for the year 2013-14. However, it was plaintiff's

responsibility to provide the jhar-phus/garbage, which he failed to do. The

Kaccha Arhtiya Association (hereinafter referred to as the 'Association') by

passing the resolution dated 04.12.2013 stopped the fans and power cleaners

in the Anaj Mandi; resultantly, no garbage could be lifted by the defendant

from there. The plaintiff did not take any step to get the crops cleaned by use

of fans and power cleaners. On that account, the defendant suffered a huge

loss. The matter was reported to the plaintiff but to no effect. In these

circumstances, the plaintiff was not entitled to the amount claimed, instead

the defendant was entitled to recover an amount of Rs.12,50,000/- from the

plaintiff along with interest at the rate of 18% per annum, as a counter claim.

4. On the pleadings of the parties, the following issues were

settled by the trial Court:

1. Whether the plaintiff is entitled for recovery of

Rs.1,86,944/- (Rs.1,81,500/- principal amount

Rs.5,444/- as interest calculated @ 18% per annum

upto 03.05.2014) along with future interest till

realization?OPP

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2. Whether the suit of the plaintiff is not maintainable

in the present form?OPD

3. Whether the plaintiff has no cause of action and

locus-standi to file the present suit?OPD

4. Whether the suit is bad on account of mis-joinder

of parties and non-joinder of necessary

parties?OPD

5. Whether the plaintiff is estopped by his own act

and conduct from filing the present suit?OPD

6. Whether the suit of the plaintiff is barred by law

of limitation? OPD

7. Whether the Civil Court at Tohana has no

jurisdiction to try and decide this suit?OPD

8. Whether the plaintiffs have concealed the true and

material facts from the Court?OPD

9. Whether the defendant/counter-claimant is entitled

to get back the amount deposited by him against

the tender along with interest @ 18% per annum,

on the grounds mentioned in the counter-

claim?OPD

10. Relief.

5. Issues No.1 and 9 were decided together by the trial Court

holding, since the plaintiff had released the tender to the defendant to lift the

garbage for huge amount of Rs.17 Lakh, it had to ensure the availability of

garbage in the Mandi as well, so that the same could have been lifted by the

defendant. Since the plaintiff failed to do that, it was liable to pay the

compensation to the defendant. The compensation of Rs.12,50,000/- claimed

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by the defendant was held to be excessive, he was however, held entitled to

recover an amount of Rs.6,69,000/- along with interest at the rate of 6% per

annum from the plaintiff.

6. On the basis of findings recorded on these issues, Issues No.2,

3, 5 and 8 were also decided against the plaintiff. Issues No.4, 6 and 7,

which were to be proved by the defendant, were not pressed during

arguments, nor any evidence was led qua them. Hence, the same were

decided against the defendant.

7. Resultantly, the suit was dismissed and counter-claim filed by

defendant was allowed to the extent of Rs.6,69,000/- along with interest at

the rate of 6% per annum. The plaintiff went in appeal against the trial Court

judgment, which was accepted by decreeing the suit and setting aside the

counter-claim.

8. Learned counsel for the appellant has argued that trial Court's

findings have been reversed wrongly. The plaintiff was bound to provide

adequate garbage to the defendant for collection as the tender for the

purpose was floated on the presumption that garbage would be available. In

the event of non-availability of the garbage for collection in the Mandi, the

defendant cannot be made liable to pay the balance amount. By referring to

testimony of Jagan Nath, DW3, the then President of the Association,

learned counsel has contended that resolution passed by the Association on

04.12.2013 for stopping the electric power cleaners stands proved on record.

Therefore, the suit could not have been decreed against the defendant, and

he was entitled to recover the amount claimed by way of counter-claim as

compensation.

9. Learned counsel for the appellant has been heard and judgments

of the Courts below perused.

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10. Undisputedly, as per contract entered into between the parties

on acceptance of tender, it was not binding upon the plaintiff to provide

garbage to the defendant, nor was there any duty upon it to ensure cleaning

of crops in the Mandi by using electric power cleaners and fans only. It has

been held by the lower appellate Court that contract between the parties

clearly stipulated that the defendant had the right to lift entire garbage from

the Anaj Mandi, irrespective of the fact as to how this garbage was

generated. The defendant was entitled to collect/lift the garbage generated,

by using of power cleaners as well as by manual cleaning of crops by the

farmers themselves.

11. So far as resolution passed by the Association regarding

stoppage of electric power cleaners is concerned, it is alien to the contract

entered into between the parties. The plaintiff was not a party to such a

resolution. Further, it has been held by the lower appellate Court, there is no

evidence on record that even after passing of the resolution in question, there

was actual stoppage of the electric power cleaners leading to any reduction

in garbage generation. Further, there is no evidence on record to establish

that arhtiyas of the Anaj Mandi concerned were members of the Association,

which passed the resolution. Besides, the defendant's witness, Ashwani

Kumar, DW1, himself deposed, even if power cleaners were not used, lesser

quantity of agricultural waste/garbage could still be generated.

12. Therefore, there is no denying the fact that even if there has

been stoppage of electric power cleaners pursuant to the resolution, the

garbage still got generated. There is no evidence on record to establish

complete cessation of garbage generation. It is neither pleaded nor proved on

record that there was no garbage at all for the defendant to collect. Also, the

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defendant did not adduce any evidence to prove the fact that he altogether

stopped lifting of garbage after passing of the resolution by the Association.

13. In view thereof, the findings recorded by the lower appellate

Court reversing the trial Court judgment, decreeing the suit and dismissing

the counter-claim filed by the defendant, suffers from no error of law, and is

based upon cogent evidence led before the Court. No substantial question of

law arises for consideration either.

14. Appeal stands dismissed.

15. Pending miscellaneous application(s), if any, stand disposed of

as having been rendered infructuous.

                                                    (TRIBHUVAN DAHIYA)
                                                           JUDGE

16.12.2022
Maninder


             Whether speaking/reasoned          :      Yes/No
             Whether reportable                 :      Yes/No




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