Bangalore District Court
Vide Bill Of Exchange/ Sales Bill ... vs To The Bank Acknowledging Receipt Of The ... on 18 February, 2022
1 COM.O.S.3211/2017
IN THE COURT OF LXXXII ADDL.CITY CIVIL & SESSIONS
JUDGE, AT BENGALURU (CCH.83)
THIS THE 18TH DAY OF FEBRUARY 2022
PRESENT:
SRI.DEVARAJA BHAT.M., B.COM, LL.B.,
LXXXII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com.O.S.No.3211/2017
BETWEEN:
M/s. Metro Cash & Carry
India Private Limited, A
company incorporated
under the provisions of
the Companies Act,
1956, having its
registered office at Sy
No. 26/3, 'A' Block, Ward
No.9, Industrial
Suburbs,
Subramanyanagar,
Bengaluru - 560 005,
represented by its Head-
Finance & Controlling
Mr. Badari Prasad .T.S.
: PLAINTIFF
(Represented by M/s
Poovayya & Co -
Advocates)
AND
2 COM.O.S.3211/2017
M/s Arambhan
Hospitality Services
Limited, (formerly
known as Cawasji
Beharamji, Catering
Services Limited), A
Company Incorporated
under the Privisions of
the Companies Act,
1956, having its
Registered Office at
201/202, Benston, B
Wing, Sherly Rajan
Road, Bandra (W),
Mumbai - 400 050.
No. 17, Bahubali
Building Road, Cawasji
Patel Street, Fort,
Mumbai - 400 001,
represented by its
Managing Director.
: DEFENDANT
(Defendant is
represented by M/s
Muchandi & Co,
Advocates)
Date of Institution of the
28.04.2017
suit
Nature of the suit (suit on Suit for recovery of money under
pronote, suit for Order XXXVII of Civil Procedure
3 COM.O.S.3211/2017
declaration & Possession,
Code
Suit for injunction etc.)
Date of commencement of -
recording of evidence
Date of First Case
- Not held -
Management Hearing
Time taken for disposal from
the date of Conclusion of 14 days
Arguments
Date on which judgment 18.02.2022
was pronounced
Total Duration Year/s Month/s Day/s
04 09 21
(DEVARAJA BHAT.M),
LXXXII Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This is a suit under Order XXXVII of Civil Procedure Code filed by the Plaintiff against the Defendant for recovery of Rs.6,40,97,104/- along with future interest @ 18% from the date of suit till the date of realization.
2. The contentions of the Plaintiff in brief are as follows:-
That the Plaintiff is a part of the Metro AG Wholesale & Food Specialist Company, which is a global pioneer in Cash & 4 COM.O.S.3211/2017 Carry wholesale, represented in 5 countries worldwide, with over 750 self-service wholesale stores having a headcount of more than 1,00,000 employees world wide and sales of around 29 billion in financial years 2015-16, that the Plaintiff is close to 7000 world-class products across a multitude of categories -
such as fruits & vegetables, general grocery, dairy, frozen & bakery products, fish and meat confectionery, detergents & cleaning and etc., that the Plaintiff is a close partner of the economy and is committed to bringing benefits to local communities through its fruits and vegetables collection centres, that the Plaintiff works along the agricultural supply chain to source fresh product directly from farmers, reduce wastage levels and help farmers realize better financial value for their products, that the Plaintiff currently runs 5 Collection Centres, that the Plaintiff's core customers include small retailers and kirana stores, hotels, restaurants and caterers, corporates, SMEs, all types of office, companies and institutions, as well as self-employed professionals, that only business customers are allowed to purchase at METRO, all of them duly registered and provided with a customer registration card, that the Defendant is a formerly known as Cawasji Behranji Catering Limited, that the Defendant claims to be engaged in offshore and onshore catering services, that the Defendant being one of the Plaintiff's customer wanted to purchase goods sold by the 5 COM.O.S.3211/2017 Plaintiff vide bill of exchange/ Sales Bill Discounting Facility, that the Defendant by signing BOE acknowledged the fact that it has received goods in a good condition from the Plaintiff and agreed to pay the amount due under the BOE, irrecoverably and unconditionally, to BNP Paribas Bank, Bengaluru, within a period of 90 days from the date of the BEO along with interest on the said amount at the rate of 11% per annum, that the Defendant purchased goods from Plaintiff under various bills of sale during the period between 26.12.2014 and 31.01.2015, for a total sum of Rs. 96,29,238/-, that in respect of these transactions, a BOE dated 01.02.2015 was submitted by the Plaintiff and Defendant to the Bank along with a separate letter addressed by the Defendant to the Bank acknowledging receipt of the said goods from the Plaintiff for period between 26.12.2014 and 31.01.2015, for the aforesaid amount, that all original bills of sale are in the custody of the bank, that the Defendant purchased goods from Plaintiff under various bills of Sale during the period between 06.02.2015 and 26.02.2015 for a total sum of Rs. 64,16,828/-, that in respect of said transaction a BOE dated 27.02.2015 was submitted by the Plaintiff and Defendant to the Bank along with separate letter addressed by the Defendant to the Bank acknowledging receipt of the said goods from the Plaintiff for period between 06.02.2015 and 26.02.2016 for the aforesaid amount, that the Defendant 6 COM.O.S.3211/2017 purchased goods from Plaintiff under various bills of sale during the period between 27.02.2015 and 26.03.2015, for a total sum of Rs. 81,31,377/-, that in respect of said transactions a BOE dated 27.03.2015 was submitted by the Plaintiff and Defendant to the Bank along with a separate letter addressed by the Defendant to the Bank acknowledging receipt of the said goods from the Plaintiff for the period between 27.02.2015 and 26.03.2015 for the aforesaid amount, that the Defendant purchased goods from Plaintiff under various bills of sale during the period between 27.03.2015 and 27.04.2015, for a total sum of Rs. 1,29,73,027/-, that in respect of said transactions a BOE dated 27.04.2015 was submitted by the Plaintiff and Defendant to the Bank along with a separate letter addressed by the Defendant to the Bank acknowledging receipt of the said goods from the Plaintiff for the period between 27.03.2015 and 27.04.2015 for the aforesaid amount, that the Defendant purchased goods from Plaintiff under various bills of sale during the period between 18.04.2015 and 27.05.2015, for a total sum of Rs. 1,04,43,437/-, that in respect of said transactions a BOE dated 28.05.2015 was submitted by the Plaintiff and Defendant to the Bank along with a separate letter addressed by the Defendant to the Bank acknowledging receipt of the said goods from the Plaintiff for the period between 18.04.2015 and 27.05.2015 for the aforesaid amount, that the goods were 7 COM.O.S.3211/2017 accepted and consumed by the Defendant without any demur or protest, that no dispute has been raised by the Defendant as to the quantity or quality of the goods, that pursuant to the five BOEs, the bank, on receipt of confirmation from both the parties that the goods had been sold by the Plaintiff and the Defendant received goods in good condition, credit the sums mentioned in the 5 BOEs to the Plaintiff as agreed to between the parties, that the said sums were credited to the account of the Plaintiff of the said bank, that the Defendant having acknowledged and accepted the terms contained under the said BOEs, was bound and obligated to irrecoverably and unconditionally make payment of the sums due under the respective BOEs to the Bank within the respective due dates, that the Defendant failed to make payment of a sum of Rs. 4,75,93,907/-, as per the said BOEs the Bank debited the aforesaid amount from the Plaintiffs account due to the failure on part of the Defendant to make payments of the aforesaid amount inclusive of interest as per the above BOEs, that on account of Defendants failure to make good its promise of payment, that the sum was debited by the Bank from the account of the Plaintiff maintained at Bengaluru and was credited to the account of the Bank, in terms of the BOEs, that a letter dated 24.04.2017 has been addressed by Bank to the Plaintiff in this regard informing Plaintiff about debit from its account on account of failure of the Defendant to pay 8 COM.O.S.3211/2017 the sums due, that in the mean time the Plaintiff through telephonic conversation, emails, discussions, meetings and letters addressed to the Defendant had requested the Defendant to make payment of the aforesaid amount along with interest, that the Defendant on each occasion, though agreed to pay the aforesaid amount along with interest on a future date, but it kept on postponing the same for one or the other reason, that when such demand was continuously made by the Plaintiff, the Defendant as per its letter dated 30.09.2016 and emails dated 17.03.2016 and 26.10.2016 addressed to the Plaintiff, expressed its commitment to pay all its dues to the Plaintiff in respect of the aforesaid BOEs, that by said communications, in particular, letter dated 30.09.2016, Defendant unconditionally accepted that payments were due from the Defendant to Plaintiff and promised to communicate a payment schedule, that despite the clear admission of liability by the Defendant, the aforesaid amount along with interest as not been paid to the Plaintiff till date, that the Plaintiff in consideration of the relationship between Plaintiff and Defendant, and in order to maintain good relationship with Defendant, provided innumerable opportunities to the Defendant to honour its commitments under the above BOEs and the subsequent representations made, that not having received any amount which were due and payable by the Defendant, the Plaintiff was 9 COM.O.S.3211/2017 constrains to address letters dated 05.04.2017 and 13.04.2017 to the Defendant, making a final demand and also setting out payment plan under which the dues could be cleared, that as the Plaintiff received no response to the said letter has filed this suit for the above -mentioned relief.
3. The Defendant has filed I.A. No.II under Order XXXVII of Civil Procedure Code to treat this summary suit as a regular suit for trial and to allow him to file written statement. He has filed I.A. No.III under Order XXXVII Rule 3 (5) of Civil Procedure Code requesting him to grant leave to defend the suit by filing written statement. He has filed I.A. No.IV under Section 151 of Civil Procedure Code seeking permission to file rejoinder by way of additional affidavit in support of application filed to seek leave to defend. He has filed I.A. No.V with a request to recall the order dated 11.01.2018 and I.A. No.VI under Order VI Rule 14 read with Order XXIX Rule 1 of Civil Procedure Code requesting to dismiss the summary suit filed by the Plaintiff without due authorization. After hearing the matter, a detailed Common Order on the said I.As was passed on 02.01.2020 and I.A. No. II to V filed by the Defendant are allowed and leave to defend the suit was granted to the Defendant with a condition to deposit of Rs. 3 Crores to the court within one month from the said Order. Further I.A. No.VI was dismissed.
10 COM.O.S.3211/20174. The Defendant has challenged the said Order before the Hon'ble High Court of Karnataka in W.P. No. 5164/2020 (GM- CPC). As per the Orders dated 28.04.2020 the said Writ Petition was rejected and 8 weeks time was granted to the Defendant to deposit the said amount.
5. The Defendant again challenged the said Order of the Hon'ble High Court of Karnataka before the Hon'ble Supreme Court in SLP (c) No. 8115/2020 and the same was also dismissed as per the Orders dated 15.07.2020 and the time to deposit the above-mentioned 3 Crores is extended by a further period of 8 weeks. Thereafter, on 05.03.2021, the Advocate for the Defendant has prayed further time to comply with the said Orders. However, since sufficient opportunity has already granted, his prayer is rejected and the leave to defend the case granted to the Defendant was withdrawn. Thereafter, he has filed I.A. No.VII to review and set aside the Order dated 12.01.2020 on I.A. No. II to VI and consequently allow the said I.As. After hearing the arguments of both Advocates, I rejected the said review application with cost of Rs.5,000/- as per a separate considered Order dated 23.12.2021.
6. Based on the pleadings of the Plaintiff, the following points arise for my consideration :-
11 COM.O.S.3211/20171. Whether the Plaintiff is entitled for the Suit Claim from the Defendant ?
2. What Order ?
7. I have heard the arguments of the Advocate for the Plaintiff through video conferencing on 12.01.2022. On 01.02.2022, the Advocate for the Defendant has filed his written arguments. On 04.02.2022, the Advocate for the Plaintiff has filed counter to written arguments of the Advocate for the Defendant. I have also heard oral arguments of the Advocate for the Defendant Sri. Nehal T. and the Advocate for the Plaintiff Sri. Dharma Tej on 04.02.2022. While preparing this Judgment, Ex.P.1 to Ex.P.21 are marked.
8. My findings on the above Points are as under:
1. Point No.1 :- In the Affirmative.
2. Point No.2 :- As per the final Order for the following reasons.
REASONS
9. Point No.1 :- As mentioned above, in this suit, the conditional leave to defend was granted to the Defendant was withdrawn on account of non-compliance of the Order dated 12 COM.O.S.3211/2017 02.01.2020. In the said circumstances, the learned Advocate for the Plaintiff has relied on a decision reported in A.I.R. - 1989 - BOM - 150 (M/s D. Shanalal and Others vs. Bank of Maharashtra), wherein a view was taken that in a summary suit when leave is not obtained by the defendant or leave is refused to him or where the defendant fails to comply with a conditional order, the Defendant is precluded from further contesting the Plaintiff's claim and that the facts stated in the Plaint must be considered to have been admitted by the Defendant and the Plaintiff becomes entitled to judgment under Order XXXVII of Civil Procedure Code.
10. It is a well established principle of law that where leave to defend has been applied and conditional leave has been granted by the Court and Defendant fails to furnish the security in terms of the conditional leave, the decree against the Defendant has to be passed in accordance with law.
11. Therefore, I find force in the argument of the counsel for Plaintiff that in view of the failure to furnish the security to deposit Rs. 3 lacs in the Court as directed, the Plaintiff has become entitled to a decree as per the provision of under Order XXXVII rule 3 (6) (b) of the Civil Procedure Code.
13 COM.O.S.3211/201712. However, the Learned Counsel for the Defendant has contended that the Plaintiff has to prove the documents in question before this Court, that all the documents produced by the Plaintiff are not originals and only copies of the documents.
13. A reading of the Order XXXVII Rule (3)(6) (b) makes it clear that on failure of the Defendant to comply with the condition imposed by the Court, the Plaintiff is entitled to judgment forthwith. Order XXXVII not only provides for abridgment of the procedure of suits covered by the said provisions but also the said provisions restrict and/or curtail the rights of the Defendants in these suits to contest the Plaintiff's claims. In the light of the ratio of the above-mentioned decisions, it is not possible to countenance the submissions urged on behalf of the Defendant. There is no scope for any further enquiry and the Plaintiff is entitled to judgment forthwith. The said provision is more or less similar to that of Order VIII Rule 10 of Civil Procedure Code.
14. In the decision reported in A.I.R. - 1999 - S.C. - 3381 (Balraj Taneja vs. Sunil Madan ), the Hon'ble Supreme Court of India has held as follows :-
"29. As pointed out earlier, the Court has not to act blindly upon the admission of a fact 14 COM.O.S.3211/2017 made by the Defendant in his written statement nor the Court should proceed to pass judgement blindly merely because a written statement has not been filed by the Defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a written statement has not been filed by the Defendant, the Court should be a little cautious in proceeding under Order VIII Rule 10 of the Civil Procedure Code. Before passing the judgement against the Defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgement could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgement against the Defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgement without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the Court, may, in its discretion, require any such fact to be proved" used in sub- rule (2) of Rule 5 of the Order VIII, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order VIII."15 COM.O.S.3211/2017
15. In the decision reported in A.I.R. - 2000 - Delhi - 60 (Relaxo Rubber Limited vs. M/s. Selection Footwear ), the Hon'ble High Court of Delhi has held as follows :-
"3. Keeping in perspective the fact that at least four opportunities for filing written statement have not been availed of by the defendants I feel this is a fit case for invoking the provisions of Order VIII Rule 10. However, since no defence has come forward, it would be, to my mind, the duty of the Court to consider the correctness of the plaintiffs case. For this reason the plaint as well as documents filed along with it were perused and arguments were heard on behalf of the plaintiffs."
16. In the decision reported in A.I.R. - 2000 - Karnataka - 234 (Syed Ismail vs. Smt. Shamshia Begum), the Hon'ble High Court of Karnataka has held as follows :-
"3. The impugned order does not disclose the nature of pleading placed by the plaintiff and whether there is prima facie material to grant a decree in his favour. A judgement in favour of the plaintiff is not automatic. The Court has to consider the case of the plaintiff and grant a decree in his favour. The learned trial Judge has not referred to the pleadings of the plaintiff and the documents produced by him to substantiate even a prima facie case for grant of a decree in his favour. Therefore, the judgement and decree in favour of the plaintiff is not automatic on failure of the opposite party to put his defence. The Court can grant a judgement in favour of the 16 COM.O.S.3211/2017 party only upon consideration of the case of the plaintiff including appreciation of pleadings and evidence."
[
17. In the decision reported in A.I.R. - 2007 - Delhi - 164 (Union of India vs. Ram Prakash Juneja ), the Hon'ble Delhi High Court has held as follows :-
"4.....The judgement pronounced under Order VIII Rule 10 of the Civil Procedure Code should indicate that the Court has applied its mind to merits of the case before decreeing the case. The said judgement must satisfy the requirements of Section 2(9) of the Civil Procedure Code and the Court should go into the case and pronounced its judgement upon the facts, so far as they were before it. A mere statement that the suit of the plaintiff is decreed under Order VIII Rule 10 of the Civil Procedure Code cannot be sustained."
18. The principles emerging from the precedents are that exercise of power under Order VIII Rule 10 of the Civil Procedure Code for pronouncement of judgment is not mechanical. This is an exercise of judicial discretion. The Court must consider the pleadings and the documents including any admission and should pronounce the judgment if the case does not involve disputed questions of facts. Such exercise must be informed by 17 COM.O.S.3211/2017 reason, application of judicial mind and consideration of the pleadings of the parties.
19. As per the contentions of the Plaintiff that the Defendant is a formerly known as Cawasji Behranji Catering Limited, that the Defendant claims to be engaged in offshore and onshore catering services, that the Defendant being one of the Plaintiff's customer wanted to purchase goods sold by the Plaintiff vide bill of exchange/ Sales Bill Discounting Facility, that the Defendant by signing BOE acknowledged the fact that it has received goods in a good condition from the Plaintiff and agreed to pay the amount due under the BOE, irrecoverably and unconditionally, to BNP Paribas Bank, Bengaluru, within a period of 90 days from the date of the BEO along with interest on the said amount at the rate of 11% per annum, that the Defendant purchased goods from Plaintiff under various bills of sale during the period between 26.12.2014 and 31.01.2015, for a total sum of Rs. 96,29,238/-, that in respect of these transactions, a BOE dated 01.02.2015 was submitted by the Plaintiff and Defendant to the Bank along with Ex.P.2/ Letter addressed by the Defendant to the Bank acknowledging receipt of the said goods from the Plaintiff for period between 26.12.2014 and 31.01.2015, for the aforesaid amount, as could be seen from Ex.P.1 and Ex.P.3, that all original bills of sale are in the custody 18 COM.O.S.3211/2017 of the bank, that the Defendant purchased goods from Plaintiff under various bills of Sale during the period between 06.02.2015 and 26.02.2015 for a total sum of Rs. 64,16,828/-, that in respect of said transaction a BOE dated 27.02.2015 was submitted by the Plaintiff and Defendant to the Bank along with Ex.P.5/Letter addressed by the Defendant to the Bank acknowledging receipt of the said goods from the Plaintiff for period between 06.02.2015 and 26.02.2016 for the aforesaid amount, as could be seen from Ex.P.4 and Ex.P.6, that the Defendant purchased goods from Plaintiff under various bills of sale during the period between 27.02.2015 and 26.03.2015, for a total sum of Rs. 81,31,377/-, that in respect of said transactions a BOE dated 27.03.2015 was submitted by the Plaintiff and Defendant to the Bank along with Ex.P.8/Letter addressed by the Defendant to the Bank acknowledging receipt of the said goods from the Plaintiff for the period between 27.02.2015 and 26.03.2015 for the aforesaid amount, as could be seen from Ex.P.7 and Ex.P.9, that the Defendant purchased goods from Plaintiff under various bills of sale during the period between 27.03.2015 and 27.04.2015, for a total sum of Rs. 1,29,73,027/-, that in respect of said transactions a BOE dated 27.04.2015 was submitted by the Plaintiff and Defendant to the Bank along with Ex.P.11/ Letter addressed by the Defendant to the Bank acknowledging receipt of the said goods from the 19 COM.O.S.3211/2017 Plaintiff for the period between 27.03.2015 and 27.04.2015 for the aforesaid amount, as could be seen from Ex.P.10 & Ex.P.12, that the Defendant purchased goods from Plaintiff under various bills of sale during the period between 18.04.2015 and 27.05.2015, for a total sum of Rs. 1,04,43,437/-, that in respect of said transactions a BOE dated 28.05.2015 was submitted by the Plaintiff and Defendant to the Bank along with Ex.P.14/ Letter addressed by the Defendant to the Bank acknowledging receipt of the said goods from the Plaintiff for the period between 18.04.2015 and 27.05.2015 for the aforesaid amount, as could be seen from Ex.P.13 and Ex.P.15, that the goods were accepted and consumed by the Defendant without any demur or protest, that no dispute has been raised by the Defendant as to the quantity or quality of the goods, that pursuant to the five BOEs, the bank, on receipt of confirmation from both the parties that the goods had been sold by the Plaintiff and the Defendant received goods in good condition, credit the sums mentioned in the 5 BOEs to the Plaintiff as agreed to between the parties, that the said sums were credited to the account of the Plaintiff of the said bank, that the Defendant having acknowledged and accepted the terms contained under the said BOEs, was bound and obligated to irrecoverably and unconditionally make payment of the sums due under the respective BOEs to the Bank within the respective due dates, that the Defendant failed 20 COM.O.S.3211/2017 to make payment of a sum of Rs. 4,75,93,907/-, as per the said BOEs the Bank debited the aforesaid amount from the Plaintiffs account due to the failure on part of the Defendant to make payments of the aforesaid amount inclusive of interest as per the above BOEs, that on account of Defendants failure to make good its promise of payment, that the sum was debited by the Bank from the account of the Plaintiff maintained at Bengaluru and was credited to the account of the Bank, in terms of the BOEs, that Ex.P.16/Letter dated 24.04.2017 has been addressed by Bank to the Plaintiff in this regard informing Plaintiff about debit from its account on account of failure of the Defendant to pay the sums due, that in the mean time the Plaintiff through telephonic conversation, Ex.P.18/emails, discussions, meetings and letters addressed to the Defendant had requested the Defendant to make payment of the aforesaid amount along with interest, that the Defendant on each occasion, though agreed to pay the aforesaid amount along with interest on a future date, but it kept on postponing the same for one or the other reason, that when such demand was continuously made by the Plaintiff, the Defendant as per its letter dated 30.09.2016 and emails dated 17.03.2016 and 26.10.2016 addressed to the Plaintiff, expressed its commitment to pay all its dues to the Plaintiff in respect of the aforesaid BOEs, that by said communications, in particular, Ex.P.17/Letter dated 30.09.2016, Defendant 21 COM.O.S.3211/2017 unconditionally accepted that payments were due from the Defendant to Plaintiff and promised to communicate a payment schedule, that despite the clear admission of liability by the Defendant, the aforesaid amount along with interest as not been paid to the Plaintiff till date, that the Plaintiff in consideration of the relationship between Plaintiff and Defendant, and in order to maintain good relationship with Defendant, provided innumerable opportunities to the Defendant to honour its commitments under the above BOEs and the subsequent representations made, that not having received any amount which were due and payable by the Defendant, the Plaintiff has sent Ex.P. 19/Letter dated 05.04.2017 and Ex.P.20/ Letter dated 13.04.2017 to the Defendant, making a final demand and also setting out payment plan under which the dues could be cleared, that as the Plaintiff received no response to the said letter has filed this suit for the above -mentioned relief.
20. From the above-mentioned evidence and various documents, it is very clear that the Defendant is in default of repayment of the said amount. Though, the Defendant in the written arguments has raised several contentions, the said contentions cannot be taken into consideration as discussed by 22 COM.O.S.3211/2017 me above. Though, the Plaintiff has not produced the originals, in view of several correspondence and emails exchanged between the parties, there is an admission by the Defendant about the transaction involved in this case and the Defendant has also admitted its liability. When such being the case, the suit of the Plaintiff cannot be dismissed for want of production of originals. The Plaintiff has also not produced the Certificate as required under Section 65 B of the Indian Evidence Act, about Ex.P18/E-mails. However, the said aspect is to be considered if oral evidence is recorded and the admissibility of said E-mails is disputed. In the present case, since the Defendant has forfeited his right of defence, there is no question of disputing about the admissibility of said E-mails. In this type of suits, when there is no defence and the suit has to be adjudged summarily, strict compliance of Section 65 B of the Indian Evidence Act, not necessary. In the said circumstances, the value to be attached to the said E-mails marked as Ex.P.18 is to be considered.
21. Sections 4 and 6 of the Information Technology Act, 2000 provide for legal recognition of electronic records and their use in Government and its agencies. Section10-A of the said Act specifically provides for validity of contract through electronic means and accordingly provides that such contract shall not be 23 COM.O.S.3211/2017 deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose. Section 12 of the said Act provides for acknowledgment of receipt including in an automated manner. Section 13 of the said Act provides for time and place of dispatch and receipt of electronic records. Upon careful consideration of all these provisions, it is seen that electronic records have been provided with full legal recognition.
22. Under the provisions of the Information Technology Act, 2000 particularly Section 10-A, an electronic contract is valid and enforceable, which states as follows:-
"Section 10-A: Validity of contracts formed through electronic means:- Where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form or by means of an electronic record, such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose."
23. E-Contracts can be entered into through modes of communication such as e-mail, internet and fax. The only essential requirement to validate an E-Contract is compliance with the necessary pre-requisites provided under the Indian Contract Act, 1872.
24 COM.O.S.3211/201724. The evidenciary value of e-contracts can be well understood in the light of the Sections 85A, 85B, 88A, 90A and 85C deals with the presumptions as to electronic records whereas Section 65B relates to the admissibility of electronic record. In the present case, there is no dispute about the admissibility of various e-mails exchanged between the parties.
25. Formation of contracts online via emails has been recognized and given validity to by the Indian courts time and again. In the decision reported in 2010(1) - SCALE - 57 (Trimex International FZE Limited, Dubai vs. Vendata Aluminium Ltd.), the parties thoroughly agreed to the terms of the contract via emails. The Hon'ble Supreme Court upheld the validity of this contract and further held as follows:-
"Once the contract is concluded orally or in writing, the mere fact that a formal contract has to be prepared and initiated by the parties would not affect either the acceptance of the contract so entered into or implementation thereof, even if the formal contract has never been initiated."
26. In the said case, the Hon'ble Supreme Court after going through the various E-mails exchanged between the parties including an E-mail attaching the draft contract, which remained unsigned, opined as follows:-
25 COM.O.S.3211/2017"44. From the materials placed, it has to be ascertained whether there exists a valid contract with the arbitration clause. It is relevant to note that on 15- 10-2007 at 4.26 p.m. the petitioner submitted a commercial offer wherein Clause 6 contains the arbitration clause i.e. "this contract is governed by Indian law and arbitration in Mumbai courts". At 5.34 p.m. though the respondents offered their comments, as rightly pointed out by Mr K.K. Venugopal, no comments were made in respect of the "arbitration clause". It is further seen that at 6.04 p.m., the petitioner sent a reply to the comments made by the respondent. Again, on 16-10-2007 at 11.28 a.m., though the respondents suggested certain additional information on the offer note, here again no suggestion was made with regard to the arbitration clause...........".
27. The Hon'ble Supreme Court in the decision reported in (2001) 7 - S.C.C. - 328 (Smita Conductors Limited vs. Euro Alloys Limited), has commented about two contracts and held that one of the party had in his mind those contracts while opening the letters of credit and while addressing the letters to the bank in that regard and had also invoked force majuere clause in those contracts which would obviously mean that the parties had in their mind those two contracts which stood formed by those letters of credit. It is held by the Hon'ble Supreme Court that if two contracts stood affirmed by reason of conduct of the parties as indicated in the letters exchanged, it must be held that there was an agreement in writing between the parties in that regard. The 26 COM.O.S.3211/2017 said judgment of the Hon'ble Supreme Court was specifically approved by the Hon'ble Supreme Court in its subsequent above- mentioned decision reported in 2010(1) - SCALE - 57 (Trimex International FZE Limited, Dubai vs. Vendata Aluminium Ltd.).
28. In another decision reported in (2009) 2 - S.C.C. - 134 (Shakti Bhog Foods Ltd. vs. Kola Shipping Ltd.), the Hon'ble Supreme Court has held as follows:-
"The existence of an arbitration agreement can be inferred from a document signed by the parties, or an exchange of letters, telex, telegrams or other means of telecommunication, which provide a record of the agreement".
29. Therefore, the correspondence through email at Ex.P.18 can be taken into consideration and on a combined reading of the contentions of the Plaintiff with the documentary evidence, I am of the opinion that the Plaintiff is entitled for Rs. 6,40,97,104/- with interest from the Defendant. Further, the Plaintiff has paid the Court fee on Rs. 6,40,97,104/-.
30. As per the above contentions and documents, the Plaintiff supplied the goods to the Defendant between 26.12.2014 to 27.05.2015, that the Bank debited the account of the Plaintiff on 28.05.2015, 25.06.2015, 26.08.2015, that various 27 COM.O.S.3211/2017 communications dated 30.09.2016, 17.03.2016, 26.10.2016, 05.04.2017 and 13.04.2017, were exchanged between the parties and the Defendant acknowledged the debt and promise to make payments and hence the suit is filed within limitation period. Further, since the part of cause of action arises within the territorial jurisdiction of this Court, this Court has jurisdiction to try and entertain this suit.
31. The Plaintiff has prayed the interest at the rate of 18% per annum from the date of suit till realization. Since it is a commercial transaction, by considering the trade practice and bank rates, if the rate of interest at 12% per annum is granted the same will be just and proper. Hence, the Plaintiff is entitled for Rs. 6,40,97,104/- with current and future interest at 12% per annum only. Hence, by considering the aspects of limitation, entitlement of the claim of the Plaintiff and rate of interest, I answer this Point in "Affirmative".
32. Point No.2 : -Therefore, I proceed to pass the following Order.
ORDER The Suit of the Plaintiff is decreed.
28 COM.O.S.3211/2017The Defendant is hereby directed to pay, to the Plaintiff, a sum of Rs.6,40,97,104/- (Rupees Six Crores Forty Lakhs Ninety Seven Thousand One Hundred and Four Only) along with interest at the rate of 12% per annum from the date of suit till realization.
The Defendant is hereby directed to pay cost of this suit to the Plaintiff. The Advocate for the Plaintiff is directed to file Memorandum of Cost before the Office within 5 days from today as required under Rule 99 and 100 of Karnataka Civil Rules of Practice.
Draw Decree accordingly.
The Office is directed to send copy of this Judgment to Plaintiff and Defendant to their email ID as required under Order XX Rule 1 of the Civil Procedure Code as amended under Section 16 of the Commercial Courts Act.
( Dictated to the Stenographer, typed by her directly on computer, verified and then pronounced by me in open Court on this the 18th day of February, 2022).
(DEVARAJA BHAT.M), LXXXII Addl. City Civil & Sessions Judge, Bengaluru.
29 COM.O.S.3211/2017ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF NIL LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE PLAINTIFF Ex.P-1 True Copy of Letter dated 01.02.2015 addressed by Plaintiff to the BNP Paribas Bank.
Ex.P-2 True Copy of Letter addressed by the Defendant to the Bank transaction pertaining to BOE dated 01.02.2015.
Ex.P-3 True Copy of Bills of Sale relating to the BOE dated 01.02.2015.
Ex.P-4 True Copy of the covering letter dated 27.02.2015 addressed by Plaintiff to the Bank.
Ex.P-5 True Copy of the letter addressed by the Defendant to the Bank in respect of the transaction pertaining to BOE dated 27.02.2015.
Ex.P-6 True Copy of Bills of Sale relating to the BOE dated 27.02.2015.
Ex.P-7 True Copy of the covering letter dated 27.03.2015 addressed by Plaintiff to the Bank.
Ex.P-8 True Copy of the letter addressed by the Defendant to the Bank in respect of the transaction pertaining to BOE dated 27.03.2015.
30 COM.O.S.3211/2017Ex.P-9 True Copy of Bills of Sale relating to the BOE dated 27.03.2015.
Ex.P-10 True Copy of the covering letter dated 27.04.2015 addressed by Plaintiff to the Bank.
Ex.P-11 True Copy of the letter addressed by the Defendant to the Bank in respect of the transaction pertaining to BOE dated 27.04.2015.
Ex.P-12 True Copy of Bills of Sale relating to the BOE dated 27.04.2015.
Ex.P-13 True Copy of the covering letter dated 28.05.2015 addressed by Plaintiff to the Bank.
Ex.P-14 True Copy of the letter addressed by the Defendant to the Bank in respect of the transaction pertaining to BOE dated 28.05.2015.
Ex.P-15 True Copy of Bills of Sale relating to the BOE dated 28.05.2015.
Ex.P-16 True Copy of letter dated 24.04.2017 issued by the Bank to the Plaintiff.
Ex.P-17 True Copy of the letter addressed by the Defendant to the Plaintiff dated 30.09.2016.
Ex.P-18 E-mail communication exchanged between the parties.
Ex.P-19 True Copy of the letter dated 05.04.2017 addressed to the Defendant by the Plaintiff.
Ex.P-20 True Copy of the letter dated 13.04.2017 addressed to the Defendant by the Plaintiff.
Ex.P-21 True Copy of Particular of claims.
31 COM.O.S.3211/2017LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANT NIL LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE DEFENDANT NIL (DEVARAJA BHAT.M), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.
32 COM.O.S.3211/2017The Judgment is pronounced in Open Court. The operative portion of the said Judgment is as follows :-
ORDER The Suit of the Plaintiff is decreed.
The Defendant is hereby
directed to pay, to the
Plaintiff, a sum of
Rs.6,40,97,104/- (Rupees Six
Crores Forty Lakhs Ninety
Seven Thousand One
Hundred and Four Only)
along with interest at the
rate of 12% per annum from
the date of suit till
realization.
The Defendant is hereby
directed to pay cost of this
suit to the Plaintiff. The
Advocate for the Plaintiff is
directed to file
Memorandum of Cost before
the Office within 5 days
from today as required
under Rule 99 and 100 of
Karnataka Civil Rules of
Practice.
Draw Decree
accordingly.
33 COM.O.S.3211/2017
The Office is directed to
send copy of this Judgment
to Plaintiff and Defendant to
their email ID as required
under Order XX Rule 1 of the
Civil Procedure Code as
amended under Section 16
of the Commercial Courts
Act.
(vide my separate detailed
Judgment dated 18.02.2022 ).
(Typed to my dictation)
LXXXII ACC&SJ, B'LURU.