Paramjit Singh Patwalia, J. - (1.) INSTANT regular second appeal has been preferred by the appellant/defendant against the judgment and decree dated 23.02.2011 passed by the learned Civil Judge (Senior Division), Ludhiana whereby suit filed by the respondent/plaintiff for recovery has been partly decreed, as well as, against the judgment and decree dated 01.12.2011 passed by learned Additional District Judge, Ludhiana whereby appeal preferred by the respondent/plaintiff has been allowed and appellant/defendant has been directed to make the payment of decretal amount along with interest to the respondent/plaintiff after furnishing indemnity bonds by the respondent/plaintiff. Along with this second appeal, a Civil Misc. application viz. CM No. 14058 -C of 2012 for condonation of 248 days' delay in filing the appeal has also been filed.
(2.) FOR convenience sake, hereinafter parties will be referred to as they are arrayed in the Court of first Instance. The detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, brief facts relevant for disposal of this second appeal are that plaintiff filed a suit for recovery of Rs. 27,18,850 -50 ps which includes principal amount of Rs. 20,21,450 -19 PS and interest @ 18% per annum amounting to Rs. 6,97,300 -31 PS. It was pleaded that defendant had got filled diesel in the vehicles belonging to its different zones at the petrol pump of the plaintiff. The defendant deputed one of its employee as attendant to fill diesel in the vehicles and he was provided a stock register and all the entries were made by him in the stock register. It was further pleaded that one bill was being raised for all the vehicles for a particular day. The bill was sent by the attendant to the defendant and the quantity of the diesel for the whole day, rate of diesel and total amount was mentioned in the bill. The defendant was having current running and mutual account with the plaintiff. Whenever the amount was paid to the plaintiff regarding purchase of diesel, the same was credited in the account of the defendant maintained by the plaintiff in the ordinary course of business. The suit amount was found payable after adjusting all the payments made by the defendant. The details of the due amount including the date and bill number from 1.2.2004 to 21.02.2004 is mentioned in the plaint. The defendant paid Rs. 1,21,854 -93 PS which was adjusted against the previous balance. Now, sum of Rs. 20,21,450.19 ps is due from the defendant. Notice under Section 396 of Punjab Municipal Corporation Act, (for short "PMC Act") was sent to the defendant on 17.11.2005, but inspite of that, payment has not been made.
(3.) UPON notice, defendant appeared and filed written statement. It has been alleged that no notice under Section 396 of PMC Act was served by the plaintiff. It is admitted that the vehicles of the defendant used to get filled diesel against proper entries and proper measurements. It has been further alleged that Krishan Lal, an employee of the Municipal Corporation was posted as an attendant. The plaintiff in connivance with Krishan Lal committed the offence of mis -appropriation and cheating. The plaintiff did not supply the diesel/petrol to the vehicles of the defendant but entries in the record of Municipal Corporation were made without supplying diesel and petrol. It has been further alleged that forged and fabricated bills were prepared by the plaintiff. When this fact became known, FIR No. 9 dated 21.02.2004 was registered by the Vigilance Bureau, Ludhiana against the plaintiff and Krishan Lal. The defendant is not in position to release the amount as claimed in the present suit due to pendency of case.;