Punjab-Haryana High Court
State Of Haryana Through Collector And ... vs Paras Rice Mills on 12 January, 1994
Equivalent citations: (1994)107PLR277
JUDGMENT S.K. Jain, J.
1. Civil Suit No. 594 of 1987 instituted on 22.8.1987 by registered partnership firm M/s. Paras Rice Mill against the State of Haryana through Collector Kurukshctra and three others for recovery of Rs. 24959-60 paise was decreed by Additional Senior Sub Judge Kurukshetra vide his judgment and decree of November 16, 1990.
2. Civil Appeal No. 18/13 of 1991 instituted on 19.12.1990 on behalf of State of Haryana and others against the above said judgment and decree was dismissed by Additional District Judge, Kurukshetra vide his judgment and decree dated 13.5.1991,
3. It is the said judgment and decree of the lower appellate Court which has been challenged on behalf of the State and which requires my examination of its sustainability.
4. I have seen the pleadings of the parties, the evidence adduced in the case and have heard the learned counsel for the parties.
5. Facts first: 20% subsidy on the purchase of Generating Sets by Small Scale Industrial units after 1.4.1976 onwards, was granted by the State of Haryana through its policy decision dated 17.3.1976. The plaintiff purchased a Generating Set from M/S. Vijay Tractors Corporation, Vijay Nagar, Bijnor, vide quotation Ex. P-4 which was obtained on 18.1.1981. The entire payment was made on 15.1.1981. The delivery of the Generating Set was received by the plaintiff a small scale industrial unit on 25.1.1981 at Bijnor and it reached the plaintiffs premises on 27.1.1981. Since the plaintiff firm was entitled to a subsidy of Rs. 44,959.60, they applied to the General Manager, District Industries Centre, Kurukshetra, 4th defendant, for the grant of the same. He on his turn recommended the case of the plaintiff to the Director of Industries the 3rd defendant. He sanctioned an amount of Rs. 20,000/- as subsidy instead of 20% of the sale price. The plaintiff moved a number of representations whereupon the 3rd defendant vide his letter of October 13, 1983, informed that subsidy at the rate of 20% of the cost of the Generating set was to be granted to the units who had purchased the same prior to 19.3.1981 whereas in the case of purchase after 19.3.1981, the maximum limit of subsidy was Rs. 20,000/- or 20% of the Cost whichever was less. The plaintiff moved another representation to the effect that the Generating Set was purchased by it on 27.1.1981 and only the invoice was issued on 30.3.1981 and therefore the sale having been completed on 27.1.1981, the plaintiff was entitled to subsidy at the rate of 20% of the cost of the Generating Set. The said representation was rejected vide letter of February 21, 1986. The plaintiff, therefore, filed the suit for the recovery of Rs. 24,959.60 paise plus interest at the rate of 18% per annum from the date of the purchase.
6. The suit was contested by the defendants. They took the stand that an application for grant of 20% subsidy for the purchase of Generating Set alongwilh invoice No. 298 dated 30.03.1981 was received on 5.3.1982, that the subsidy amount was calculated on the invoice value including the sale tax; that in view of the revised policy the plaintiff was entitled to only Rs. 20,000/- as subsidy. After receiving the replication the learned trial Court framed following issues on the basis of the pleadings of the parties:-
1. Whether the defendants have not paid the entire amount of subsidy for which the plaintiff was entitled to recover from the defendants for the purchase of Generating Set as alleged ?OPD.
2. Whether the suit is not maintainable? OPD.
3. Whether the plaintiff has no cause of action ? OPD.
4. Whether the plaintiff is estopped from filing the present suit by its own act and conduct? OPD.
4A Whether the present suit is time barred? OPD.
5. Relief.
7. After the parties led evidence and advanced arguments, the learned trial Court returned following findings:-
(i) that on the basis of the documentary evidence it is established on record that the plaintiff received the delivery of the Generating Set on 25.1.1981 on full payment of the price thereof; that the Generating Set was delivered to the carriers on 25.1.1981 and it reached Yamunanagar on 26.1.1981 that the issuance of the invoice was only a formality that according to the Government Policy a small scale industrial unit was entitled to subsidy at the rate of 20% of the cost if the sale was completed on or before 18.3.1981 and that in the case in had the sale having been completed much prior to 18.3.1981 the plaintiff firm was entitled to a subsidy at the rate of 20% of its costs price.
(ii) that the suit was maintainable;
(iii) that the claim of the plaintiff for grant of 20% subsidy had wrongly been denied by the State and hence the plaintiff had cause of action to bring the suit;
(iv) that the admission contained in affidavit Ex.D2/A having proved wrong, the plaintiff was not estopped from bringing the present suit; and
(v) that the representation of the plaintiff firm was rejected vide letter Ex.P.67 dated 21.2.1986 and therefore the suit instituted on 19.8.1987 was well within limitation.
8. The learned Lower Appellate Court has confirmed there findings.
9. Following facts are admitted on both ends:-
i) that according to the policy published vide memo No. LNS/Subsidy/75-76/12488-A dated 17.3.1976 the State of Haryana had to grant 20% subsidy on the purchase of new Generating Set by Small Scale industrial units after 1.4. 1976.
ii) that the State Govt. revised its above said policy with effect from 19.3.1981 and according to the revised policy subsidy of Rs. 20,000/- or 20% of the purchased price of the Generating Set, which ever is less was to be granted to the Small Scale Industrial Units and
iii) that the plaintiff was granted a subsidy amount of Rs. 20,000/-only.
10. In view of the above admissions it is clear that the plaintiff was entitled to subsidy at the rate of 20% of the sale price of the Generating Set if it had purchased the set during the period with effect from 1.4.1976 to 18.3.1981.
11. Combined reading of the statements of PW3 Dharam Pal, Partner of the plaintiff firm PW1 Shri. Ram Chander Record Keeper State Bank of India Thanesar PW2 Shiv Kumar Sharma Superintendent Municipal Committee Thanesar. PW4 Kanta Sharma Clerk Excise and Taxation Office, Kurukshetra shows that the plaintiff firm had received quotation for Kirloskar Cummins Diesel Engine Model NTC 495-G suitable for Generating Set. developing 154 H.P. at 1500 R.P.M. under NTP conditions as per B.S. 649/1958/P.S. 1601 with standard accessories as per Makers specifications for Rs. 2,24,848/- and placed Order No. 903 with the said firm and paid Rs. 11,000/- as advance on 19.1.1981 vide receipt Ex.P5. It further paid an amount of Rs. 1848/- on 25.1.1981 to the said firm vide Receipt Ex.P.6. Demand draft No. 311946 dated 24.1.1981 for Rs. 2,12, 000/- issued by State Bank of India Thanesar in the name of the above said corporation was delivered to them by the plaintiff vide Receipt Ex. P7. Thus a total amount of Rs. 2,12,00/- Rs. 11,000/- + Rs. 1848/- = Rs. 2,24,848/- was paid. Challan Ex. P.8 dated 25.1.1981 was issued by the above said Corporation to the plaintiff firm. After receiving the delivery of the said Generating Set. the plaintiff firm delivered the same to M/s. Bijnor Truck Owners Union. Bijnor for carriage to Kurukshetra vide their Receipt Ex. P9. Form ST-38 bill of loading. Ex. P10, was issued on 26.1.1981 on the inter-State Border. The Generating Set reached its destination at Kurukshetra in Truck No. USR 9235. passing Municipal Committee Octroi Barrier. Thanesar, on 27.1.1981. after payment of Rs. 248.64 paise as Octroi charges. The abovesaid evidence has gone unrebutted.
12. The defendant-State has placed much reliance on invoice Ex.D2 (also Ex.DW3/A) which was issued by M/s. Vijay Tractors Corporation on 30.03.1981 and it has been argued that this document shows that the Generating Set was not purchased before 30.03.1981 by the plaintiff firm and therefore according to the revised policy the plaintiff firm was entitled to subsidy of Rs. 20.000/-- or 20% the price of the Generating Set which ever was less. This document was put to Mr. Dharam Pal partner of the plaintiff firm in cross examination and he has satisfactorily explained the same by saying that the plaintiff firm had applied to the Punjab National Bank for obtaining loan for the purchase of the Generating Set vide Ex.D1. Invoice Ex.D2 (Ex.DW3/A) was issued 2/ 21/2 months after the receipt of the Generating Set. This document was not received with the Generating Set and only challan was received. He has stoutly denied the suggestion that the firm had purchased the Generating Set after 19.3.1981. The statement of this witness has been believed by both the Courts below.
13. On the basis of (he above evidence, both (he trial Court as well as the first appellate Court have rightly held that the plaintiff-firm had purchased the Generating Set much prior to 19.3.1981.
14. Now, the admission contained in para No. 1 of the undertaking in the form of affidavit Ex.D2/A, to the effect that the Punjab National Bank had granted a loan of Rs. 1.68 lacs to them for the purchase of a new Generating Set, which they had purchased on 30.3.1981 from M/s. Vijay Tractors Corporation. This admission has been satisfactorily explained by Dharam Pal PW3 in his affidavit Ex.P25. Therein, he has stated that in the earlier undertaking the date of purchase of the Generating Set was mentioned as 30.03.1981 purely on the basis of the date of invoice issued by the supplier; that the said invoice was issued to them on their routine visit although it could be received earlier had their representative visited the supplier firm on any dale between 27.1.1981 to 30.3.1981. It has further been explained that the date filled up in the undertaking was only in a proforma supplied by the Department, wherein the above fact could not he explained.
15. In view of the above explanation, the admission contained in affidavit Ex.D2/A has been satisfactorily proved to be wrong and successfully withdrawn on behalf of the plaintiff-firm. In holding the above view, I am fortified by the ratio laid down in Onkar son of Rakha Ram (Hoshiarpur) v. Shri Vishnu Parkash, (1984)86 P.L.R. 96, wherein it was held that though the admission is a very material piece of evidence against a party making the same, yet the maker of it can always prove it to be wrong and even withdraw the same.
16. For the aforementioned detailed discussion, I do not find any fault with the concurrent finding recorded by the two Courts below to the effect that the purchase of the Generating Set by the plaintiff-firm was completed on 27.1.1981, much prior to 30.3.1981 and, therefore, it was entitled to subsidy at the rate of 20% of the sale price and that since the Government had paid an amount of Rs. 20,000/- only as against Rs. 44,959.60 paise, the plaintiff-firm was entitled to recover from the appellants the amount of Rs. 24,959.60 as balance amount of subsidy. The said finding is hereby affirmed.
17. Since the sale had been completed during the currency of the policy, i.e., w.e.f. 1.4.1976 to 18.3.1981, the plaintiff-firm was entitled to the amount of subsidy as mentioned above. The plaintiff-firm, therefore, certainly had cause of action to bring the present suit which was maintainable. The admission contained in affidavit Ex.D2/A having been proved to be wrong and successfully withdrawn, the plaintiff-firm was not estopped from filing the present suit. The claim of the plaintiff-firm was finally rejected by the State Government on 21,2,1986 vide its letter Ex.P67. Therefore, the suit instituted on 22.8.1987 was well within the limitation of three years. The concurrent findings recorded by the two Courts below on the point of maintainability cause of action estoppel and limitation are also affirmed.
18. As a sequal to the above discussion, this Regular Second Appeal fails and is hereby dismissed, However, the parties are left to bear their own costs.