Bangalore District Court
Strategic Marketing And vs M/S. Besto Ice Creams on 20 September, 2017
IN THE COURT OF THE XXIX ADDL. CITY CIVIL
& SESSIONS JUDGE AT BANGALORE CITY. (CCH30)
DATED THIS THE 20th DAY OF SEPTEMBER 2017.
PRESENT; SMT.NAGAJYOTHI.K.A., LL.M.,
XXIX ADDL CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.NO. 1232/2013
PLAINTIFF: Strategic Marketing and
Research Team, A
Partnership firm
registered Under the
Provisions of the Indian
Partnership Act 1932
Having its office at
No.253, 5th Block, 67th
Cross, Rajajinagar,
Bangalore-560 010.
Represented by it's
Authorized Signatory
Mr. Anand Kumar K. Age
43 years.
(By Sri.B.N.P., - Advocate)
Vs.
DEFENDANT/S: M/s. Besto Ice Creams
Pvt. Ltd., A Company
incorporated under the
Provisions of the
Companies Act, 1956
No.1143, 22nd Cross, BSK
2nd Stage, Bangalore-560
070. Represented by its
Managing Director.
(By Sri.N.B. - Advocate.)
Date of institution of the suit 13/02/2013
Nature of the suit (suit on Money Suit
pronote. Suit for declaration
2 O.S.No. 1232/2013
and possession suit for
injunction, etc.)
Date of the commencement of 11/11/2013
recording of the evidence.
Date on which the judgment 20/09/2017
was pronounced
Total duration Year/s Month/s Day/s
04 07 07
JUDG M ENT
This suit is filed against the defendant for
recovery of Rs. 3,28,836.00 together with interest at the
rate of 24% P.A. from the date of the suit till the date of
payment.
2. It is averred in the plaint that, the plaintiff is a
Registered partnership carrying on the business of sale of
goods namely food ingredients like Milk Powder, Choco dip,
Vegetable Fat etc. In pursuant to orders placed by the
Defendant from time to time the plaintiff has sold and
supplied the goods to the defendant towards the value of
supplies under invoices on various dates for Rs. 2,91,511/-.
In respect of the Invoice No. 27962 dated 19/2/2010 out of
the total invoice amount of Rs. 1,35,200/- the defendant
3 O.S.No. 1232/2013
has paid a sum of Rs. 69,628/- on 29/4/2010 and the
balance Rs. 65,572/- and also Rs. 44,980/-. The defendant
has not paid any amount in respect of the Invoices No. 2 to
8. The defendant is liable to pay to the plaintiff a sum of
Rs. 2,38,846/-. As per the invoices and as agreed by the
defendant the defendant is liable to pay interest at the rate
of 24% p.a. on delayed payment. The details of invoice,
payment No. of dalays and the interest charged as
mentioned in the plaint in total Rs. 3,28,836/- is due by
the defendant. Inspite of request on several occasions by
the plaintiff the defendant failed and neglected to clear the
same. Hence filed this suit.
3. The defendant appeared through his counsel and
submitted in the written statement that the plaintiff has
filed the suit on distorted versions of facts and the same is
liable to be dismissed. The averments made in respect of
invoice No. 27962 dt. 19/2/2010, out of the total invoice
amount of Rs. 1,35,200/- the defendant has kpaid a sum of
Rs. 69,628/- on 29/4/2010 leaving the balance amount of
Rs. 65,572/- and the further averments that the defendant
has paid further sum of Rs. 20,592/- on 31/12/2010
4 O.S.No. 1232/2013
leaving that balance amount of Rs. 44,980/- is admitted.
Further the defendant has not paid any amount in respect
of invoices No.2 to 8 does not arise, since the plaintiff has
not supplied any goods stated in the invoices though the
defendant placed orders several times and therefore the
business of the defendant was frustrated and within a span
of four months the defendant stopped even placing orders
with the plaintiff. In term of the invoice, overdue interest
of 24% p.a. is payable by the defendant in case of delay in
making the payment are all false. The invoices were raised
from Bangalore, parts payments were received at
Bangalore are all false. The employees of defendant left
the job and joined the plaintiff company and with the help
of them the plaintiff has forged and fabricated records in
order to make a false claim and unlawfully enrich itself.
Hence prays for dismissing the petition.
4. Considering the facts and circumstances and the
material available in the matter, my predecessor has
framed the following issues as under -
ISSUES
1. Whether the plaintiff proves that he has
supplied the materials worth Rs. 2,91,511/-
under difference Invoices as shown in Para-
5 O.S.No. 1232/2013
4(1) of the plaint and so also he has supplied
the materials shown in Para 3 of the plaint to
the defendant and the defendant is liable to
pay Rs. 3,28,836/-?
2. Whether plaintiff further proves that the
defendant is liable to pay interest @ 24% per
annum on the said suit claim amount from
the date of suit till the date of realization?
3. Whether defendant proves that the employees
of the defendant had left and joined Plaintiff
company and plaintiff has forged and
fabricated the records?
4. What order or decree?
5. In proof of their case, the plaintiff has got
examined himself as PW.1 and relied upon the
documents Ex.P.1 to Ex.P.33. The defendant has got
examined as D.W.1 Ex.D 1 was marked.
6. Heard arguments.
7. My findings to the above issues are as under:-
Issue No.1: -In the affirmative;
Issue No.2 : In the Partly affirmative
Issue No.3 : In the Negative,
Issue No.4 : As per final order for the
following-
6 O.S.No. 1232/2013
REASONS
8. ISSUE No. 1 : It is a suit for recovery of
money. The plaintiff had business transaction with the
defendant i.e. the defendant placed the purchase order and
plaintiff complied the same and sent the materials along
with copy of invoices. The defendant Company received it
and makes the payment after receiving the materials. But
the defendant has not made the payment and he is in
arrears. Whereas the defence is that the plaintiff has not
sent materials properly as per the purchase order and they
are not in any arrears to the plaintiff. To prove the case on
behalf of the plaintiff, the plaintiff authorised representative
Company deposed as P.W.1 and in respect of the
transaction he was produced the documents 8 invoices and
copy of the notice and postal acknowledgement. Whereas
while cross examining the witness the defendant crosses on
his capacity to adduce evidence before the Court so he was
also produced the certified copy of Registration number,
Ledger extract of Defendant Account and further two
invoices, Partnership deed and the Registrar of Firms
7 O.S.No. 1232/2013
Extract. It is pertinent to note that in the written statement
the defendant has not denied the representative capacity of
Anand Kumar. So in fact he was estopped from objecting
the evidence of P.W.1 whereas during the evidence stage
plaintiff averred and produced sufficient materials to give
his authority to adduce evidence on behalf of the plaintiff.
So the objection raised in the cross examination cannot be
considered seriously. On perusal of the invoices also shows
each of the invoices were signed by the defendant
Authorized Signatory.
9. P.W.1 replied in the cross examination that they
delivered the materials through hired vehicles. It is cross
examined that Ex.P. 6 to Ex.P. 13 does not discloses the
vehicle registration number. Whereas it is not the
defendant case that they have not received materials
referred in the invoice Ex.P. 12. I cannot give any weight
on this cross examination. So there is no need to examine
the authorized persons who accompanied in the vehicle and
supplying the materials. It is pertinent to note that even
though he was authorized person he was not cross
examined in respect of defence and written statement
8 O.S.No. 1232/2013
clearly shows there is no reason to doubt on the account
statement and the details furnished in the plaintiff
documents. Their Factory Manager Krishna Bhat was
placing orders and procuring the materials from the
plaintiff. He was aware of what order placed by their
Company and what materials were secured from the
plaintiff. Further he replied that they orally communicated
the plaintiff which invoices materials were not received.
Whereas when it is a Company and doing the business
transaction it must have documents to corroborate it.
Business transaction may not be conducted only on oral
communications, faith etc., and in respect of further
questions purchase order and invoices he replies "I have to
check whether they have got copies of purchase orders
placed on plaintiff and only on the basis of these documents
he can show what materials are given in the purchase
order and what materials are received. Since D.W.1
appeared to adduce before the Court on the main subject of
invoices his answer on material question is not knowing and
needs to verify." Further he replied he had verified long
back in respect of which invoices the materials were not
9 O.S.No. 1232/2013
supplied. Now he was not remembering. He has no
complaint either with regard to quantity or quality of
materials shown in the above invoices. This admission
itself clearly concludes that their evidence is a false and
there is no corroboration of the said defence. Hence
without need of much discussion I hold the issue No.1 in
the Affirmative.
10. Issuer No.2 :- As per the plaint averments he
claims the interest @ of 24% on the basis of Section 61(2)
of the Sale of Goods Act. The same was also not disputed
in the cross examination. On perusal of the invoices Ex.P. 6
to Ex.P.13 and other invoices Ex.P. 18 to 31 shows it
referred "Payment Terms : Overdue interest @ 24%
perannum will be charged on delayed payments". Since
the plaintiff calculated the interest @ 24% p.a. till the filing
of this suit. I appreciate the same however after filing of
this suit I consider the rate of interest @ 10% p.a. Hence I
hold the above Issue No.2 is in partly affirmative.
11. Issue No.3:- It is the defence of the defendant
that one of its employee is left the job and joined Plaintiff
Company and the invoices produced before the Court are
10 O.S.No. 1232/2013
fabricated documents and making short claim. In respect
of the same P.W.1 replied that one Ramesh working in the
defendant Company earlier, is left and joined their Firm.
But there is no suggestion when he left the defendant
Company. It is burden of the defendant to show whether
there is any black mark on this employee and on what
reason the said employee may forge the documents for
plaintiff Company. When there is no recital of this fact the
defence raised by the Defendant has not importance.
12. On behalf of the defendant their authorized
Signatory S.R.Pramod deposed as D.W.1 and replied that
he was not personally involved in the transaction referred in
the plaint. D.W.1 replied that Ramesh left their Company
in September 2010 before Ramesh leaves their Company
all invoices produced before the Court were received. So
this admission further clarifies that their defence in respect
of earlier employee holds no water. It clears that employee
had no opportunity to fabricate the defendants documents.
So I consider the defendant fails to prove the defence in
respect of earlier employee. Accordingly I hold Issue No.3
in the negative.
11 O.S.No. 1232/2013
The defendant referred the following citations:
1. A.I.R. 2003 Andhra Pradesh 418
2. A.I.R 1938 Lahore 766
3. A.I.R. 2007 Madhya Pradesh
4. A.I.R. 1983 Kerala 81
5. A.I.R. 2007 Supreme Court 1721
6. A.I.R. 1971 Punjab 212
7. A.I.R. 1957 SC 857
8. A.I.R. 1973 Delhi 280
9. A.I.R. 1968 Bombay 112.
Perusing the same since it is a business transaction
and plaintiff produced invoices carbon copies. It is the
burden of the defendant to rebut it because they who
placed the purchase orders and received the materials
from Plaintiff Company. Further D.W.1 says that Krishna
Bhat is the person who place the orders. But they will
not examine him, it clearly shows non-examination of
proper person also effects the defendant's case. So the
above referred citations were not applied to the case on
hand.
12 O.S.No. 1232/2013
13. Issue No.4: In view of the reasons stated supra,
I proceed to pass the following ;
ORDER
The suit is decreed with costs. The defendant is hereby directed to pay the amount of Rs. 3,28,836/- with future interest @ 10% P.A. till the date of realization.
Draw decree accordingly.
(Dictated to the Judgmentwriter, typed by her, corrected and then pronounced by my in the open court, this the 20th day of SEPTEMBER, 2017.) (NAGAJYOTHI.K.A) XXIX Addl. City Civil Judge, Bangalore City.
ANNEXURE LIST OF WITNESSES EXAMIEND FOR PLAINTIFF :
PW.1. Anand Kumar LIST OF DOCUMENTS EXHIBITED FOR PLAINTIFF :
Ex.P.
1) Authorization letter
2) Office Copy of legal notice 13 O.S.No. 1232/2013
3) UCP certificate
4) Postal Receipt
5) Postal acknowledgment
6) 8 Invoices (Ex.P. 1 to Ex.P. 13 marked)
14) Certified copy of Registration
15) twp Ledger extract Accounts
16) 15 Invoices (These are marked at Ex.P. 14 to Ex.P.31)
32) Partnership letter
33) Register of Firms.
LIST OF WITNESES EXAMINED FOR DEFENDANTS:
D.W1 : Sri. S.R. Pramod LIST OF DOCUMENTS EXHIBITED FOR DEFENDANTS:
Ex.D.
1) Board Resolution (NAGAJYOTHI.K.A) XXIX Addl. City Civil Judge, Bangalore City.14 O.S.No. 1232/2013
Judgment pronounced in open Court vide separate judgment.
ORDER The suit is decreed with costs.
The defendant is hereby directed to pay the amount of Rs. 3,28,836/- with future interest @ 10% P.A. till the date of realization.
Draw decree accordingly.
XXIX Addl. City Civil Judge, Bangalore City.
15 O.S.No. 1232/2013