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2023 Supreme(Gau) 938
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH (ITANAGAR BENCH)
Mitali Thakuria, J.
NHPC Ltd And Ors. - Appellant
Vs.
M/s M.S. Enterprises - Respondent
RFA No. 2 of 2016
Decided On : 11-08-2023
Advocate Appeared:
For the Appellant : Mrs S Nag
For the Respondent: Mr. D. Panging
Point of Law: “under the law of evidence also, it is necessary that contents of the documents are required to be proved either by primary or by secondary evidence
Headnote:
Code of Civil Procedure, 1908 - Section 96 - Supplying 4,000 bags of cement - Release of payment - Suit for recovery - Praying for setting aside the judgment & decree - It is submitted by the learned counsel for respondents that appellants had never relied on the said documents during the entire trial of this case or even at stage of evidence of D.W. Para 15
Finding of the court : It is seen that agreement for supply of cement was basically between respondents/plaintiffs and other defendants/respondents and there was also demand of payment of bill from time to time and present appellants were not a party to said agreement for supply of cement - But, from statement made by appellants in their Written Statement as defendants, it is seen that they took responsibilities for payment of bill provided full consent is given by PPCL to pay same out of RA bill - It is seen that appellants cannot exonerate themselves from paying dues to respondents/plaintiffs as they are jointly and severally liable to make payment for supply of order of cement and judgment of the learned Court below is also passed on admission of present appellants in their Written Statement specially in paragraph Nos. 11 & 13.
Result: Appeal dismissed
JUDGMENT & ORDER :
Heard Ms. S. Nag, learned counsel for the appellants. Also heard Mr. D. Panging, learned counsel appearing on behalf of the respondents.
2. This is an appeal under Section 96 of the Code of Civil Procedure, 1908, praying for setting aside the judgment & decree, dated 31.07.2015, passed by the learned Additional District Judge, Basar, West Siang District, Arunachal Pradesh, in Money Suit No. 161/2006.
3. The brief facts of the case is that the respondents/plaintiffs filed a money suit, being Money Suit No. 161/2006, stating that the respondents/defendants (i.e. respondent Nos. 3, 4 & 5 in the present appeal) placed an order for supplying 4,000 bags of cement @ Rs. 212/- per bags plus cartage @ Rs. 0.80 paise per quintal and also requested him to deploy minimum 04 trucks for carrying the said quantity of cement to the store site, i.e. at Kamba/Balak Store site, vide letter dated 09.07.2003. The respondents/defendants assured the respondents/plaintiffs that the payment shall be made within 20 (twenty) days after receipt of the material at the site.
4. It is stated that the present appellant, i.e. NHPC, assured the respondents/defendants that in case the respondents/defendants do not make the payment, NHPC will make the concerned payment. The respondents/defendants again, vide letter dated 26.07.2003, placed an order for supply of 10,000 bags of cement for the civil work of Kambang H E Project. After supply of 4,160 bags of cement, the respondents/plaintiffs submitted the bill dated 23.07.2003 for an amount of Rs. 11,18,874/- for the cement @ Rs. 212/- per bag along with the transportation charges @ Rs. 0.80/- paise per quintal from Likabali to Kambang. The respondents/plaintiffs again submitted another bill, dated 04.08.2003, for an amount of Rs. 3,71,165/- with Arunachal Pradesh sales tax @ 8% along with transportation charges. According to the plaintiffs, the respondent/defendants handed over a cheque of Rs. 1,00,000/- only with reference to letter dated 09.07.2003 and for further payment, Mr. Jitender Singh, the Project Manager of Prem Power Construction (Pvt.) Ltd. (in short ‘PPCL’), sent a letter dated 20.08.2003 to the respondents/plaintiffs requesting them to submit the treasury challan along with the concerned bill to enable the release of payment. The respondents/plaintiffs, accordingly, complied with the said letter and furnished the requisite documents and a copy of the letter sent to M/S PPCL was also endorsed to NHPC. But, M/S PCCL did not make the payment despite reminder by respondents/plaintiffs and even after letter written to NHPC.
4. The respondents/plaintiffs kept on demanding the dues with interest @8% per annum, but as the payment was not made, the respondents/plaintiffs issued a legal notice under Section 80 of the Code of Civil Procedure to the defendants and the NHPC forwarded the said notice to M/S PPCL. It is further stated in the plaint that the NHPC wrote letters to M/S PPCL for early release of the payment. Finally, the respondents/plaintiffs filed a suit for recovery of Rs. 16,86,299/- with a prayer for decree of the suit against the defendants jointly and severally and also claimed interest @18% per annum upon the bill amount till final satisfaction of the decree.
5. On receipt of the notice, the appellants/defendants filed their Written Statement, wherein, it is stated inter alia that no verbal assurance was ever given by the appellant as stated in the plaint. Further, the alleged contract for supply of cement was signed between the respondents/plaintiffs and M/S PPCL and therefore, the NHPC has no role to play in the said matter. However, in paragraph No. 13 of the Written Statement, it was mentioned that as per the contract entered between the NHPC and M/S PPCL, no payment out of running bills can be paid unless M/S PPCL gives consent. It was also mentioned that if today in case M/S PPCL give their full consent to NHPC, the payment can be released to the plaintiffs from RA Bills. Fu
