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2017 Supreme(Gau) 1260
IN THE HIGH COURT OF GAUHATI
AJIT BORTHAKUR, J.
BORMAH JAN TEA COMPANY LTD. - Appellant
Vs.
ASHOK SERVICE STATION - Respondent
RFA No. 35 of 2010
Decided On : 27-10-2017
For the Appellant :S. Gogoi, Advocate.
For the Respondent:S.K. Chakraborty, Advocate.
Headnote:
Evidence Act - Section 34 - - Civil Procedure Code, 1908 - Section 96 - Order XLI - Evidence - Interest – Limitation - In order to substantiate claim plaintiff respondent firm examined one witness namely who is its Proprietor and exhibited as many as documents while the defendant/appellant cross-examined him - Defendant/appellant did not produce any witness – Held, Therefore this Court is of opinion that without going into other issues plaintiff/respondent is not entitled for a decree to recover from defendant/appellants Tea Estate on account of selling of petroleum products and accordingly issue is answered in negative - Defendant/appellant desisted any contact - Having regard to disputed exhibited bills mentioned in grounds of appeal stated above court have verified the relevant exhibits and found as follows - From defendant/appellants Tea Estate on account of selling of petroleum products and accordingly issue is answered in negative – Appeal allowed
Ajit Borthakur, J.
This long pending First Appeal of 2010 under the provisions of Section 96 read with Order XLI of the C.P. Code, 1908 is directed against the judgment and decree, dated 19.02.2010, passed by the Court of learned Civil Judge, Sonitpur at Tezpur.
2. The defendant/appellant's case, precisely is that the plaintiff respondent firm instituted Money Suit No. 18/2008, on 10.11.2008, in the Court of the learned Civil Judge, Sonitpur, wherein, it was stated that as per Orders placed by the defendant/plaintiff, the plaintiff respondent used to supply petroleum products and thereafter, submitted bills for payment and the defendant/appellant used to make the payments on the furnished bill amounts till 21.06.2006. In course of continuation of such practice of supply of petroleum products, a sum of Rs. 11,14,939.85/- became due to the plaintiff/respondent firm till 21.06.2006 and the defendant/appellant issued 2 (two) cheques amounting to Rs. 1,36,764/- towards part payment of the aforesaid outstanding amount. However, the said cheques were dishonoured by the Bank for insufficient funds. Later on, the dispute was compromised between the parties on 22.06.2006 by executing a deed of compromise. Thereafter, the business of selling and purchasing of petroleum products between the plaintiff/respondent and the defendant/appellant resumed and another amount of Rs. 9,50,216.41/- remained unpaid by the defendant/appellant upto 31.3.08 as shown below:-
Statement of account w.e.f. 22.06.2006 to 31.03.2008
| (i) | Opening balance to be paid to the plaintiff as per agreement made by the plaintiff and the defendant on 22.06.2006 | Rs. 11,14,939.85/- |
| (ii) | Amount to be paid against 129 Nos. of Bills | Rs.44,90,797.48/- |
| (iii) | Amount of cost for the proceeding of C.R. Case No. 16/06 as mentioned in the agreement | Rs. 15,000.00/- |
|
| Total | Rs.56,20,737.33/- |
| (iv) | Statement of amounts paid | Rs. 35,20,520.92/- |
| Amount of payment against the bill amount | ||
| (v) | Amount paid against the amount as per agreement | Rs. 11,50,000.00/- |
|
| Total | Rs. 46,70,520.00/- |
Balance amount remained unpaid Rs. 9,50,216.41/-.
3. The plaintiff respondent contended that the aforesaid outstanding sum of Rs.9,50,216.41/- still remains due from the defendant/appellant as per terms and conditions mentioned in the agreement, dated 22.06.2006 and the defendant/appellant has ceased the business transactions with the plaintiff respondent with effect from 1.4.2008. Hence, the suit was instituted for recovery of the aforesaid amount of Rs. 9,50,216.41/-with interest thereon @12% per annum till realization of the amount from the defendant/appellants.
4. The defendant/appellant contested the suit by filing a written statement, dated 13.02.2009, on the grounds, inter-alia, that the suit is barred by limitation; that the suit is not maintainable in its present form and manner; that the suit is bad for non-compliance of order IV Rule 1 & 2; that there is no cause of action for the suit; that the suit is barred by principle of estoppel, waiver and acquiescence and that no amount is due to the plaintiff respondent. Hence, prayed to dismiss the suit with cost.
5. Upon the pleadings of the parties, as above, and after hearing the learned counsel of both the sides, the learned trial Court framed the following issues :-
"1. Whether there is cause of action for the plaintiff suit?
2. Whether the suit is barred by law of limitation?
3. Whether the plaintiff suit is barred by principle of waiver, estoppels and acquiescence?
4. Whether the plaintiff is entitled for a decree to recover of Rs. 9,50,216.41 /- from the defendant for selling of petroleum products to the defendant company?
5. To what relief/reliefs the parties are entitled to law and equity?".
6. In order to substantiate the
