Bangalore District Court
M/S Kothari International vs M/S Universal Beverages on 16 October, 2024
KABC170014132022
IN THE COURT OF LXXXIII ADDL. CITY CIVIL & SESSIONS JUDGE,
COMMERCIAL COURT, BENGALURU (CCH-84)
Present: Sri S. Sudindranath, LL.M., M.B.L.,
LXXXIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
COM.OS.No.736/2022
Dated on this 16th day of October 2024
Plaintiff M/s. Kothari International,
Sy.No.13/6, Bargenahalli village,
Sompura Hobli, Dobaspet,
Nelamangala Taluk,
Bengaluru Rural-562111,
having Branch Office at:
No.92, 2nd Main Road,
Sheshadripuram,
Bengaluru-560020.
Represented by its Proprietor
Sri.Pradeep Kothari,
S/o Goutham Chand Kothari,
Aged about 40 years.
(By Sri.H .C. Ramesh, Advocate)
// versus //
Defendants 1. M/s. Universal Beverages,
Sri Venkateshwara Compound,
Devanahalli Road,
Near D Cross, Doddaballapur,
Bengaluru-561203.
2. Bharat Kumar C Jain,
S/o Chandulal,
Aged about 57 years,
No.307, 17th C Main,
3rd Block, Rajajinagar,
Bengaluru-560010.
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KABC170014132022
3. Smt.Amrutha,
W/o Arvind Kumar,
Aged about 33 years,
No.44, 2nd Cross,
Ramachandra Agrahara,
Chamarajpet,
Bengaluru-560018.
(D1 & D2 by Smt.Usha Devi K.G,
Advocate,
D3 by Sri.B.S.Anil Kumar,
Advocate)
Date of Institution of suit : 26/05/2022
Nature of the suit : Transactions of
merchants, financiers,
traders relating
mercantile documents
(enforce, interpret)
Date of commencement of :
recording of the evidence 14/03/2023
Date on which the : 16/10/2024
Judgment was pronounced.
: Year Month/ Day/s
Total duration /s s
02 04 20
JUDGMENT
This is a suit filed by the plaintiff, which is a proprietorship concern, against Defendant No. 1 to 3, of which Defendant No. 1 is a Partnership Firm and Defendant No. 2 and 3 are its partners, for the recovery of a sum of Rs. 36,71,041/= towards materials supplied along with interest. 3
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2. The plaint averments in brief are that, the plaintiff proprietorship firm is in the business of manufacturing plastic PET preforms, which are used for manufacturing PET bottles. Defendant No. 2 and 3, as the partners of Defendant No. 1, purchased materials from the plaintiff between the period 08-02-2018 to 29-05-2019 on credit basis. As on 3-7- 2019, the total amount payable by the Defendants to the Plaintiff towards materials supplied was Rs. 36,71,041. Towards part payment of the said amount, the Defendants issued cheques of the total value of Rs. 24 lakhs, which were dishonored for the reason "funds insufficient." In this regard, the Plaintiff has filed criminal cases for offence under Section 138 of the NI Act. The Defendants have not paid the amount inspite of issuance of legal notice. Hence, for recovery of the said sum of Rs. 36,71,041 together with interest at 18% p.a. from the date of purchase of goods till realization, the present suit is filed.
3. In response to the suit summons, Defendant No. 1, 2 and 3 have entered appearance through counsel. Defendant No. 1 and 2, i.e., the Partnership Firm and Partner, have filed 4 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 common written statement, taking up the defense that for whatever materials were purchased from the Plaintiff, the Defendants have paid the entire amount, and there is nothing further due. It was pleaded that the Defendants had issued 14 cheques only for security purposes and not for the discharge of legal debt. It was also pleaded that the plaint averments are vague, without specifying the details of the materials supplied for which the payment of the suit claim is due, and without giving the calculation of the suit claim or statement of accounts regarding the due amount. Another defense taken up by Defendant No. 1 and 2 was that the goods supplied by the Plaintiff were of poor quality, which was acknowledged by the Plaintiff, and said goods were rejected and returned to the Plaintiff. Another defense taken was that several fake transactions were sought to be raised by the Plaintiff, and the Plaintiff later acknowledged the same and corrected them by reversing the said transactions. Ultimately, it was pleaded that the Plaintiff has raised invoices without any purchase order from the Defendants, and for whatever materials were supplied, the Defendants have already made the payment, and therefore nothing 5 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 further is due. With these pleadings, Defendant No. 1 and 2 prayed for the dismissal of the suit.
4. Defendant No. 3 filed separate written statement, pleading that she was only a sleeping partner in Defendant No. 1 partnership firm and totally unaware of its business or any other matters, and she was never involved in the business of Defendant No. 1 at any point in time. It was also pleaded that Defendant No. 3 retired from Defendant No. 1 firm as per the retirement deed dated 17-12-2018, and according to the retirement deed, it is the continuing partners who shall be liable for any liabilities of the firm. Therefore, it was contended that, viewed from any angle, Defendant No. 3 cannot be held liable for the dues of Defendant No. 1 firm. Anyhow, it was denied that the Plaintiff supplied materials worth Rs. 36,71,041/= for which payment is due. Specifically, it was contended that there is collusion between Plaintiff and Defendant No. 2. It was also pleaded that the suit is barred by limitation. With these pleadings, Defendant No. 3 also prayed for dismissal of the suit.
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5. On the basis of the above rival pleadings, the following issues and additional issues have been framed:
1) Whether the Plaintiff proves that, in respect of goods purchased from the Plaintiff, there is due of Rs. 36,71,041 from the Defendants?
2) Whether the Defendants prove that the Plaintiff had supplied poor quality goods and the same are rejected by the Defendants as stated?
3) Whether the Plaintiff is entitled for recovery of the suit claim amount with interest?
4) What decree or order?
Additional issues framed on 14-08-2024:
1) Whether Defendant No. 3 proves that she is not liable for the suit claim since she was only sleeping partner of Defendant No. 1, and it was Defendant No. 2 who was taking care of the day-to-day business transactions of Defendant No. 1?
2) Whether Defendant No. 3 proves that she has retired from Defendant No. 1 firm as per the retirement deed dated 17-12-2018 and hence she is not liable for the suit claim?
3) Whether Defendant No. 3 proves that there is collusion between Plaintiff and 7 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 Defendant No. 1 and 2 for the purpose of creating documents?
6. In the trial, the proprietor of the Plaintiff is examined as PW1 and got marked Ex. P1 to P16 and P18. Ex.P 17 was marked in cross examination of DW 1. In cross examination of PW 1, Ex. D1 to D3 were marked by the learned counsel for Defendant No. 1 and 2 and Ex. D4 to D7 and D16 to D19 were marked by the learned counsel for Defendant No. 3.
7. On behalf of the Defendants, Defendant No. 2 is examined as DW1, and he has not marked any documents. However, in his cross-examination, as noted supra, Ex. P17 is marked by confronting to him. Defendant No. 3 is examined as DW2 and got marked Ex. D8 to D15.
8. After closure of evidence on both sides, I have heard the arguments of both sides and perused the records of the case.
9. My answers to the issues are as follows:
Issue No. 1: As per finding.
Issue No. 2: In the negative.
Issue No. 3: As per finding.
Additional Issue No. 1 to 3: In the negative. Issue No. 4: As per final order for the 8 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 following:-
REASONS RECAPITULATION OF RIVAL CASES OF BOTH SIDES AND EVIDENCE ADDUCED BY BOTH SIDES IN SUPPORT OF THEIR RESPECTIVE CASES.
10. The case of the Plaintiff in brief is that, the plaintiff proprietorship firm is in the business of manufacturing plastic PET preforms, which are used for manufacturing PET bottles. Defendant No. 2 and 3, as the partners of Defendant No. 1, purchased materials from the plaintiff between the period 08-02-2018 to 29-05-2019 on credit basis. As on 3-7- 2019, the total amount payable by the Defendants to the Plaintiff towards materials supplied was Rs. 36,71,041. Towards part payment of the said amount, the Defendants issued cheques of the total value of Rs. 24 lakhs, which were dishonored for the reason "funds insufficient." In this regard, the Plaintiff has filed criminal cases for offence under Section 138 of the NI Act. The Defendants have not paid the amount inspite of issuance of legal notice. Hence, for recovery of the said sum of Rs. 36,71,041 together with interest at 18% p.a. 9 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 from the date of purchase of goods till realization, the present suit is filed.
11. In support of its case, the Plaintiff proprietorship concern has examined its proprietor as PW1 and got marked Ex. P1 to P18. Among these, Ex. P1 to P16 and P18 are marked in the chief examination of PW1, whereas Ex. P17 is marked by confronting to DW1.
12. Ex. P1 is the GST registration details of the plaintiff, which shows that the plaintiff is a proprietorship concern belonging to Pradeep Kothari, namely PW1. Ex. P2 are the suit invoices, and it is in respect of material delivered under these invoices that the suit claim is sought to be recovered from the defendants. Ex. P3 to P5 are the ledger extracts maintained by the plaintiff in respect of the account of Defendant No. 1 for the period from 1-4-2017 to 31-3-2020. As per the last entry at Ex. P5, it shows that the total amount due from Defendant No. 1 to the plaintiff as on 29-05-2019 is Rs. 36,71,041, which is also the suit claim in the present suit. Ex. P6 is the legal notice dated 4-9-2021 caused by the plaintiff to the defendants. Ex. P7 to P9 are the postal receipts 10 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 and acknowledgements in respect thereof. Ex. P10 is the reply caused by Defendant No. 3 to the said legal notice. Ex. P11 is the non-starter report of PIM. Ex. P12 is an email purported to have been issued by Defendant No. 1 to the plaintiff dated 3-7-2019, attaching the ledger extract. According to this ledger extract, as on 29-05-2019, the balance amount due and payable by Defendant No. 1 to the plaintiff is Rs. 33,17,348, whereas the suit claim is for Rs. 36,71,041. Ex. P13 is an email dated 21-06-2019 purported to have been issued by the plaintiff to Defendant No. 1, attaching the ledger extract. According to this ledger extract, as on 29-05- 2019, the amount due is Rs. 35,86,041, which again differs from the suit claim and the amounts stated in the ledger extracts at Ex. P12 and Ex. P5. Ex. P14 is an email dated 21- 06-2019 purported to have been issued by Defendant No. 1 to the plaintiff, attaching the ledger extract. According to this ledger extract, as on 29-05-2019, a different amount of Rs. 42,47,890 is said to be due from Defendant No. 1 to the plaintiff. Ex. P15 is 65B certificate. Ex. P16 is printout from the GST website showing the various entries uploaded by the plaintiff in respect of transactions with Defendant No. 1. Ex. 11
CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 P17 are the certified copies of the 24 cheques issued by Defendant No. 1 to the plaintiff, in respect of which cheque bounce case has been filed by the plaintiff, as stated in the plaint. Ex. P18 are the documents produced by the Commercial Tax Officer, Doddaballapur.
13. At this stage, it is to be noted that, during the trial, the plaintiff had filed IA No. 9 under Order 16, Rule 6, CPC to issue summons to the Commercial Tax Officer, Doddaballapur, to produce all GSTR-2 input and output documents submitted/uploaded by Defendant No. 1. The said application was allowed by orders dated 16-02-2024, and on 13-03-2024, an official of the commercial tax office, Doddaballapur, was present and produced the documents. However, the said official was not examined as a witness, since the witness summons was issued only for the production of documents and not for giving evidence. Anyhow, PW1 was recalled, and the documents produced by the Commercial Tax Officer were marked through PW1 as Ex. P18, as noted above.
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14. Per contra, the defense raised by Defendant No. 1 and 2 is that, for whatever materials were purchased from the Plaintiff, the Defendants have paid the entire amount, and there is nothing further due. It is pleaded that the Defendants had issued 14 cheques only for security purposes and not for the discharge of legal debt. It was also pleaded that the plaint averments are vague, without specifying the details of the materials supplied for which the payment of the suit claim is due, and without giving the calculation of the suit claim or statement of accounts regarding the due amount. Another defense taken up by Defendant No. 1 and 2 was that the goods supplied by the Plaintiff were of poor quality, which was acknowledged by the Plaintiff, and said goods were rejected and returned to the Plaintiff. Another defense taken was that several fake transactions were sought to be raised by the Plaintiff, and the Plaintiff later acknowledged the same and corrected them by reversing the said transactions. Ultimately, it was pleaded that the Plaintiff has raised invoices without any purchase order from the Defendants, and for whatever materials were supplied, the Defendants have already made the payment, and therefore nothing 13 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 further is due. With these pleadings, Defendant No. 1 and 2 prayed for the dismissal of the suit.
15. Defendant No. 3 has filed separate Written Statement contending that, she was only a sleeping partner in Defendant No. 1 partnership firm and totally unaware of its business or any other matters, and she was never involved in the business of Defendant No. 1 at any point in time. It was also pleaded that Defendant No. 3 retired from Defendant No. 1 firm as per the retirement deed dated 17-12-2018, and according to the retirement deed, it is the continuing partners who shall be liable for any liabilities of the firm. Therefore, it was contended that, viewed from any angle, Defendant No. 3 cannot be held liable for the alleged dues of Defendant No. 1 firm. Anyhow, it was denied that the Plaintiff supplied materials worth Rs. 36,71,041/= for which payment is due. Specifically, it was contended that there is collusion between Plaintiff and Defendant No. 2. It was also pleaded that the suit is barred by limitation. With these pleadings, Defendant No. 3 also prayed for dismissal of the suit. 14
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16. In support of the case of Defendants, Defendant No. 2 is examined as DW1, and Defendant No. 3 is examined as DW2. The defendants have collectively marked Ex. D1 to D19. Among these, Ex. D1 to D3 were marked by confronting PW1 by Defendant No. 1 and 2. Ex. D4 to D7 were also marked by confronting PW1 by Defendant No. 3. Ex. D8 to D15 were marked by DW2 in her chief examination. Ex. D16 to D19 were again marked by confronting PW1 by Defendant No. 3.
17. Ex. D1 is the certified copy of the sworn statement and deposition of PW1 in CC18197 of 2019. Ex. D2 is the ledger extract produced in the criminal case by the plaintiff herein and the same ledger extract is marked in the present suit as Ex. P5. According to the said ledger extract, as on 29-05- 2019, the balance due by Defendant No. 1 to the plaintiff is shown as Rs. 36,71,041, which is also the suit claim. Ex. D3 is Ex. P26 of the criminal case, and it is an email purportedly sent by Defendant No. 1 to the plaintiff, attaching the ledger extract showing the due amount as Rs. 33,17,348. Ex. D4 is the sworn statement and deposition of PW1 in CC18196 of 2019, another cheque bounce case filed by the plaintiff 15 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 against the defendants. Ex. D5 is the 65B certificate, marked as Ex. P23 in the criminal case. Ex. D6 are the invoices produced by the plaintiff in the cheque bounce case, and they are the same invoices marked as Ex. P2 in the present case, except for one vital difference. The invoices produced in the criminal case bear the header stating "duplicate for transport," whereas no such header appears on the invoices produced as Ex. P2. Ex. D7 is the retirement deed dated 17- 12-2018, under which Defendant No. 3 retired from Defendant No. 1 firm. Ex. D8 to D11 are certified copies of records in OS 25765 of 2019, namely the order sheet, Plaint, Written Statement of Defendant No. 3, and memos filed in the suit. These documents are produced to show that in a similar case filed by a third party against Defendant No. 1 partnership firm and its partners, Defendant No. 3 was given up, and the case was dismissed against Defendant No. 3 on the ground that she had retired from the partnership firm. Ex. D12 to D15 are records of OS 26153 of 2019, namely the plaint, order sheet and memos. These documents are also produced for a similar purpose, viz. to show that in the said suit, Defendant No. 3 was deleted due to her retirement from 16 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 the firm. Ex. D16 to D19 are marked by confronting PW1. They are respectively the deposition of DW1 in the present suit and two agreements dated 16-03-2024 under which settlement is purportedly recorded in respect of the subject matter of the present suit between the plaintiff and Defendant No. 2 and the chief examination affidavit of PW1 in the present suit.
QUESTION OF LIMITATION
18. Before proceeding to answer the issues framed in the present suit, I deem it appropriate to consider the question of limitation raised by Defendant No. 3. Although no issue is framed in this regard, this court is duty-bound to answer the said contention, as under Section 3 of the Limitation Act, the court must consider the question of limitation even if the same is not raised as a defense. In the present case, Defendant No. 3 has raised a specific plea that the suit is barred by limitation.
19. In considering the question of limitation, it is to be noted that this is a suit filed by the plaintiff for recovery of a sum towards material supplied. Therefore, it becomes 17 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 relevant to see the date of supply of the material as per the plaintiff's case.
20. According to the plaint averments in paragraph 3, the material was supplied from 8-02-2018 to 29-05-2019. The invoices are also in consonance with the said pleadings, as the invoice at page 16 of Ex. P2 is dated 8-02-2018, and the last invoice at page 140 is dated 29-05-2019. Be it noted that, there is no plaint averment that, running account was maintained between the parties, and therefore, the limitation will begin to run individually for each invoice. In other words, the limitation for the first invoice dated 8-02-2018 will begin to run on the date of the invoice itself, viz. 8-02-2018, and the limitation for the last invoice will begin to run on 29-05-2019, which is the date of the last invoice. Being a suit for recovery of money, the suit has to be filed within three years from the date of the invoice. The first invoice is dated 8-02-2018, and therefore, the three-year limitation expires on 8-02-2021. However, the suit is filed on 26-05-2022.
21. However, it is to be noted that said date of 8-02-2021 falls within the COVID-19 lockdown period. As per the law 18 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 laid down by the Hon'ble Apex Court in case of "In Re Cognizance for Extension of Limitation" in Suo Motu WP [C] No. 3 of 2020, dated 10-01-2022, the period from 15- 03-2020 till 28-02-2022 shall stand excluded for the purpose of limitation. Further, it is held that, where the limitation would have expired during the period between 15-03-2020 and 28-02-2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 1-03-2022.
22. This is a case where the limitation expires between the said dates, i.e. on 8-2-2021. Therefore, the plaintiff has a balance limitation of 90 days from 1-3-2022, which means the plaintiff has balance limitation until 1-6-2022. The suit is filed on 26-5-2022. Therefore, it must be held that the suit is filed within the period of limitation.
Additional Issue No. 1 to 3 :-
23. Having disposed off the plea regarding limitation, let me now first address Additional Issues No. 1 to 3, which are all framed at the instance of defendant No. 3, placing the burden on defendant No. 3 to prove that she is not liable to pay the 19 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 suit claim since she was only a sleeping partner, and since she has retired as per Ex. D7 and due to alleged collusion between the plaintiff and defendant No. 1 and 2. Therefore, since all these issues deal with the defenses raised by defendant No. 3 to escape liability, they will be considered together to avoid repetition of facts.
24. Insofar as Additional Issue No. 1 is concerned, defendant No. 3 contends that she was only a sleeping partner in defendant No. 1 firm and that it was defendant No. 2 who was taking care of day-to-day business transactions. Being only a sleeping partner, she claims to have no knowledge about any transactions of the defendant No. 1 partnership firm and, therefore, she is not liable to pay the suit claim. This contention cannot be accepted because the Partnership Act does not make any distinction between sleeping partners and managing partners.
25. Section 25 of the Partnership Act lays down as follows;
"Liability of a partner for acts of the firm. Every partner is liable jointly with all other partners and also severally for all acts of the firm done while he is a partner."
(Emphasis Supplied) 20 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022
26. The law is laid down by the Hon'ble Apex Court in the case of Ashutosh v. State of Rajasthan, (2005) 7 SCC 308 : 2005 SCC OnLine SC 1258 at page 312, as follows;
13. Under Section 25, the liability of the partners is joint and several. It is open to a creditor of the firm to recover the debt from any one or more of the partners. Each partner shall be liable as if the debt of the firm has been incurred on his personal liability.
(Emphasis Supplied)
27. Therefore, it becomes clear that every partner is liable for the debts of the partnership firm, and the law does not distinguish between sleeping partners and managing partners. Consequently, the contention that defendant No. 3 was a sleeping partner as stated in the retirement deed at Ex. D7, does not exempt her from liability for payment of the partnership debts. Therefore, it is held that even conceding that defendant No. 3 was a sleeping partner, she is equally liable for all partnership debts. Accordingly, Additional Issue No. 1 is answered in the negative.
28. The next contention of defendant No. 3, which is the subject matter of Additional Issue No. 2, is that she has 21 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 retired from the partnership firm under Ex. D7 - retirement deed dated 17-12-2018. It is the contention of Defendant No. 3 that, in said retirement deed, it is stated that, it is the continuing partners who shall be liable for all debts and liabilities of the partnership firm, and therefore the present suit is not maintainable against defendant No. 3.
29. A connected contention is that, in two other suits filed by third parties against defendant No. 1 - partnership firm for recovery of money, after realizing the retirement of defendant No. 3, the respective plaintiffs have withdrawn the suit against defendant No. 3, as per Ex.D 8 to D15. Based on this, it is contended that the same principle applies to the present suit and present suit should also be dismissed against defendant No. 3. However, the fact that, as per the records produced at Ex. D8 to D15, OS 25765 of 2019 and OS 26153 of 2019, were dismissed against defendant No. 3 is totally irrelevant and inconsequential. The said suits were dismissed against defendant No. 3 on the basis of memo filed by the respective plaintiffs stating that they do not wish to proceed against Defendant No. 3 and it is not as if said suits were 22 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 dismissed against Defendant No. 3 on merits. Apart from this, the plaintiff herein is not a party in the said suits, and therefore the judicial orders passed in the said suits accepting the memos filed by respective Plaintiffs, will not assist defendant No. 3 in the present suit.
30. Regarding the contention that defendant No. 3 has retired from the partnership firm and is therefore no longer liable for the partnership debts, the liability of a retiring partner is laid down by Section 32 of the Partnership Act, which states:
32. Retirement of a partner.--
(1) A partner may retire-- (a) with a consent of all the other partners, (b) in accordance with an express agreement by the partners, or (c) where the partnership is at will, by giving notice in writing to all the other partners of his intention to retire.
(2) A retiring partner may be discharged from any liability to any third party for acts of the firm done before his agreement by an agreement made by him with such third party and the partners of the reconstituted firm, and such agreement may be implied by a course of dealing between such third party and the reconstituted firm after he had knowledge of the retirement. (3) Notwithstanding the retirement of a partner from a firm, he and the partners continue to be liable as partners to third parties for any act done by any of them which 23 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 would have been an act of the firm if done before the retirement, until public notice is given of the retirement: Provided that a retired partner is not liable to any third party who deals with firm without knowing that he was a partner. (4) Notices under sub-section (3) may be given by the retired partner or by any partner of the reconstituted firm.
(Emphasis Supplied)
31. Thus, it is clear that, retiring partner can be discharged of liability incurred prior to retirement only with consent of the third party creditor. In the case on hand, the Plaintiff is not a party to the retirement deed at Ex.D 7 and there is no document on record to show that, Plaintiff has discharged the liability of Defendant No. 3 for debts incurred prior to retirement deed. More importantly, as per Section 32 supra, the retiring partner continues to be liable to third parties even for debts incurred subsequent to retirement, until public notice of the retirement is given. Of course, as per proviso to Section 32 (3), if third party transacts with firm without being aware of factum of that person being a partner, retiring partner will not be liable.
32. In the present case, it is specifically stated by the plaintiff that he dealt with defendant No. 1 firm with the 24 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 knowledge that, defendants No. 2 and 3 were partners. Admittedly, defendant No. 3 was a partner of defendant No. 1 firm until her retirement as per Ex. D7 dated 17-12-2018. There is no agreement with the plaintiff discharging the liability of defendant No. 3 for liabilities incurred prior to retirement. Furthermore, no public notice regarding defendant No. 3's retirement has been issued. In this regard, defendant No. 3, namely DW2, has admitted in her cross- examination at paragraph 3 that she did not inform the firm's banker about her retirement. In paragraph 4, when asked whether she had informed third parties about her retirement, she has stated that she does not know anything about the firm's transactions, thereby admitting that she has not issued any public notice regarding her retirement.
33. Therefore, notwithstanding defendant No. 3's retirement under Ex. D7 dated 17-12-2018, she continues to be liable for any debts owed by the firm to the plaintiff. Accordingly, Additional Issue No. 2 is answered in the negative.
34. In so far as Additional Issue No. 3, defendant No. 3 contends that there is collusion between the plaintiff and 25 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 defendant No. 2, and thus she should not be held liable to pay the suit claim. It is noted that, the present suit is filed for recovery of money for materials supplied to defendant No. 1. If the plaintiff can prove the supply of materials and the non- payment of the invoice amount for those materials, then the plaintiff would certainly be entitled to recover the suit claim from the partnership firm and its partners. The question of collusion is irrelevant as long as the plaintiff is able to prove the supply of materials and the non-payment for same. Therefore, irrespective of any alleged collusion between the plaintiff and defendants No. 1 and 2, defendant No. 3 cannot escape liability as long as the plaintiff proves the supply of materials to the firm and the non-payment for them. Accordingly, defendant No. 3 cannot avoid liability based on alleged collusion, and hence Additional Issue No. 3 is answered in the negative.
35. Before parting, another contention raised by the counsel for defendant No. 3 may be considered at this stage. It was argued that, as per the retirement deed at Ex. D7, there are various other partners of the firm who are not impleaded in 26 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 the suit. It is contended that defendant No. 1 is an unregistered partnership firm, and therefore, without impleading all the partners, the present suit is not maintainable.
36. This contention cannot be accepted because, concerning the non-registration of defendant No. 1 firm, it is to be noted that under Section 69 [2] of the Partnership Act, no suit to enforce a right arising from a contract shall be instituted by or on behalf of a firm against a third party unless the firm is registered. Therefore, it is only where the partnership firm is the plaintiff that the bar of Section 69 [2] will be attracted, in the case of an unregistered partnership firm. However, there is no such bar for filing a suit against an unregistered partnership firm by a third party. Therefore, even conceding that defendant No. 1 is an unregistered partnership firm, there is no bar for the plaintiff to file the suit against the unregistered partnership firm. According to the plaintiff, he is only aware of two partners, namely defendants No. 2 and 3, and therefore he has impleaded only them in the present suit. The contention that all the partners ought to have been 27 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 impleaded in the present suit, and without impleading all the partners, the suit itself is not maintainable, cannot be accepted. As already noted, under Section 25 of the Partnership Act, the liability of the partners is joint and several for the payment of the debts due by the firm. Therefore, when the liability of each partner is not only joint but also several, it does not lie in the mouth of one of the partners to contend that the suit should have been filed against all the partners, particularly when the plaintiff is before the court and states that to the knowledge of the plaintiff, at the time of filing the suit, he was aware of only defendants No. 2 and 3 as the partners.
37. Thus, this contention regarding the maintainability of the suit for the non-impleadment of all the partners is unacceptable and rejected.
Issue No. 1 to 3 :-
38. Having disposed of the above preliminary contentions of defendant No. 3, let me now focus my attention on the principal issues involved in the present suit, which are the subject matter of issues No. 1 to 3, namely whether the 28 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 plaintiff has proved that Plaintiff supplied the material under the invoices at Ex. P2 and for the said material supplied, the plaintiff is entitled to recover sum of ₹36,71,041 from the partnership firm and its partners, namely defendants No. 1 to
3. Since these issues require common discussion, issues No. 1 to 3 are considered together.
39. The case of the plaintiff, as stated in paragraph 3 of the plaint, is that, Plaintiff has supplied material, namely plastic PET preforms, which are used for manufacturing PET bottles to defendant No. 1 between the period from 8-02-2018 to 29- 05-2019. However, in the plaint, there is no specific pleading regarding the dates of the invoices between 8-02-2018 to 29- 05-2019, nor is there pleading regarding the individual invoice values. Further, in the plaint, it is only pleaded that as on 03-07-2019, the defendants were due and liable to pay a sum of ₹36,71,041 without specifically pleading what the total value of the material supplied was and what payment was made by the defendants towards the said material. It is only stated that the balance amount due towards the total material supplied is the suit claim of ₹36,71,041. 29
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40. Per contra, the defense raised by defendants No. 1 and 2 is that certain materials supplied were of inferior quality and were returned and for the materials received by defendant No. 1, payment has already been made, and therefore, nothing further is due. However, the defendants have not pleaded what is the total value of the materials accepted by defendant No. 1 nor what was the total payment made by defendant No. 1. Insofar as defendant No. 3 is concerned, she has no serious defense to raise regarding the merits of the suit because her entire case is that she knows nothing about the transactions of the firm since she was a sleeping partner. All the defenses of defendant No. 3 are mainly technical defenses, which have already been disposed off while answering Additional Issue No. 1 to 3 supra.
41. Therefore, regarding the merits of the case, the court has to see whether the plaintiff proves that, he had supplied material as per Ex. P2 invoices, for which he is entitled to receive the balance amount of ₹36,71,041. The court also has to see whether defendants No. 1 and 2 have 30 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 substantiated their defense that some of the materials supplied were of inferior quality and were returned. Let me first deal with the contention of defendants No. 1 and 2 that inferior quality material was supplied which was returned, which is the subject matter of issue No. 2 as this issue can be disposed of shortly.
42. It is to be noted that, defendants No. 1 and 2 have not specifically pleaded on what dates and what quantum of material was returned as inferior quality. As already noted, DW1 has not produced any documents. Therefore, it is clear that defendants No. 1 and 2 have not substantiated their defense regarding the return of inferior quality material, and without any hesitation, I answer issue No. 2 in the negative, holding that defendants No. 1 and 2 have failed to prove that the plaintiff had supplied inferior quality goods which were rejected by the defendants.
43. Now, let me turn my attention to whether the plaintiff has proved the supply of material for which the balance payment due from defendant No. 1 is the suit claim of ₹36,71,041. In this regard, as already noted, there is no 31 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 specific pleading in the plaint as to the dates of the invoices under which material was supplied, the individual invoice amounts, or even the total invoice amount for the material supplied and the total payment made by defendant No. 1 towards the invoices. The only pleading is that the balance amount payable as of 03-07-2019 was ₹36,71,041, which is the principal suit claim.
44. At this stage, it is important to highlight that in paragraph 3 of the plaint, it is pleaded that, towards part payment of the balance amount due, the defendants had issued cheques for ₹24 lakhs. These cheques have been dishonored for the reason "funds insufficient" in respect of which, criminal cases under Section 138 of the NI Act have been filed and the sworn statement and deposition of two of these cases have been marked as Ex. D1 and D4.
45. The defense raised by defendants No. 1 and 2 in respect of these cheques is that these cheques were given as security as per trade practice and not for discharge of lawful debt. 32
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46. In my view, these cheques are not of much significance in the present suit. This is because the cheques are not issued for the suit claim of ₹36,71,041 but are only for ₹24 lakhs. More importantly, this is not a suit for recovery of the cheque amount, but this is a suit for recovery of the balance amount payable towards the material supplied. Therefore, the cheques, which are collectively marked as Ex. P17, are not of much significance in the present suit, and the plaintiff has to succeed or fail based on proof of material supplied and non- payment for the said material.
47. Learned counsel for the plaintiff vehemently argued that DW1 has admitted receipt of material as per the invoices at Ex. P2. He submitted that the delivery of the said material is not only admitted by DW1 but it is also forthcoming from the fact that both parties have reflected the said transactions in the GST statements uploaded to the GST website. The GST statement uploaded by the plaintiff is marked as Ex. P16 and the corresponding GST entries uploaded by defendant No. 1 are reflected in the documents produced by the commercial tax officer marked as Ex. P18. Thereby, learned counsel for 33 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 the plaintiff argued that, there is no dispute about the supply of material as per the invoices at Ex. P2, and therefore the defendants cannot escape the liability and they are liable to pay the suit claim.
48. In this regard, learned counsel for defendant No. 3 argued that in so far as the GST entries produced by the commercial tax officer marked as Ex. P18 is concerned, there are serious discrepancies, in that, the total amount is stated for each date, but the total amount for some dates is by excluding the GST entry which is marked by a small black triangle, and for some other dates, the total amount is including such entries. Thereby, he submitted that the GST entries are totally unreliable. He has further pointed out that, as per the invoices, some material is stated to be supplied to Jigni and Peenya, whereas PW1 in his cross-examination has admitted that defendant No. 1 has office and place of business only in Doddaballapura (Paragraph 2 : PW 1 has stated that Defendant No. 1 does not have any branches; Plaint cause title gives address as Doddaballapur and at Paragraph 15, PW 1 has stated that no goods are delivered to 34 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 Peenya or Jigni). He further argued that, the income tax returns of the plaintiff are not produced to show that the amount due from defendants is reflected in the said income tax returns. He pointed out that there is a difference between the invoices produced by the plaintiff in the present case, which are at Ex. P2, and the invoices produced in the criminal case, which are marked by confronting to PW1 as Ex. D6, in that, in the criminal case, the transporter's copy of the invoice are produced, whereas in the present case, the invoices produced do not bear any such endorsement that they are the transporter's copy. He further argued that, some of the invoices are not reflected in the ledger extract attached to the email at Ex. P12, allegedly sent by defendant No. 1. He further argued that as per the say of PW1 in cross- examination at Paragraph 2, there was no cash transaction between Plaintiff and Defendants, whereas, in the ledger extract produced by the plaintiff himself, various cash payments are reflected. Ultimately, he argued that there is absolutely no proof of delivery of the material, and therefore the plaintiff's suit has to fail.
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49. Having considered the rival contentions, let me first consider the alleged admission made by DW1 regarding the receipt of material, which has been relied upon by the learned counsel for the plaintiff. In this regard, the learned counsel for the plaintiff has highlighted that at paragraph 1 of the cross-examination of DW1, DW1 has admitted that he is doing business with the plaintiff since 2018 and that the plaintiff used to supply material that is preforms for manufacturing bottles. At paragraph 2 of his cross- examination, he has admitted that in respect of the transaction with the plaintiff, he has raised GSTR2, i.e. GST entries. Then, at paragraph 3 of his cross-examination, the most crucial admission is made wherein DW1 has stated as follows;
"It is true to suggest that the plaintiff supplied material to us under invoice at Ex. P2. It is true to suggest that in respect of said invoice, we have raised GSTR2 to the commercial tax department."
50. In fact, in his further cross-examination dated 30-08- 2024, at Paragraph 13, DW1 has gone so far as to admit that, amount is due from defendant No. 1 to the plaintiff. In this 36 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 regard, he has stated at the end of paragraph 13 of his cross- examination as follows;
"It is true to suggest that for the transactions from February 2018 to December 2018, defendant No. 1 was due and liable to pay amounts to the plaintiff."
51. As noted supra, the stand of defendant No. 1 and 2 in Written Statement is that, for whatever material received by defendants, payment has been made and no further payment is due. However, DW1 in his cross-examination admits that for transactions from February 2018 to December 2018, defendant No. 1 was due and liable to pay amounts to the plaintiff.
52. In the absence of the plaintiff pleading clearly what is the total value of the material supplied and what is the amount of part payment which has been made by defendants, there is heavy burden on the plaintiff to prove what is the amount due from the defendants to the plaintiff. In this regard, the ledger extracts play a very important role. However, in this case, the plaintiff has himself produced and got marked several ledger extracts, each giving a different 37 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 version of the amount due. The first ledger extract produced are marked as Ex. P3 to P5 and cover the period from 1-4- 2017 to 31-3-2020, and this ledger extract shows the balance amount due by the defendant No. 1 to the plaintiff as on 29- 5-2019 as Rs. 36,71,041, which is in consonance with the suit claim. However, the plaintiff has also produced and got marked another ledger extract at Ex. P13. In fact, Ex. P13 is an email sent by the plaintiff to defendant No. 1, and to the said email, a ledger extract is attached, and if the said ledger extract is seen, it shows that on 29-5-2019, the amount due from defendant No. 1 to the plaintiff is Rs. 35,86,041. There are two other ledger extracts at Ex. P12 and P14. Ex. P12 and P14 are emails purported to be sent by defendant No. 1 to the plaintiff, to which ledger extracts are attached. These ledger extracts show a totally different balance amount due in that the ledger extract at Ex. P12 shows the due amount as Rs. 33,17,348, whereas the ledger extract at Ex. P14 shows the due amount as Rs. 42,47,819. Thereby, the plaintiff himself has produced and got marked four ledger extracts, and in each of these four ledger extracts, different amounts are shown to be due on the same date, that is, on 29-5-2019. As 38 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 per Ex. P5, on 29-5-2019, the due amount is Rs. 36,71,041. As per Ex. P12, on the same date, the due amount is Rs. 33,17,348. As per Ex. P13, on the same day, the due amount is Rs. 35,86,041. And finally, as per Ex. P14, on the same day, that is, 29-5-2019, the due amount is Rs. 42,47,819. It is these discrepancies in the ledger account which is the predominant weakness in the plaintiff's case.
53. No doubt DW1 admits having received the material as per Ex. P2. However, there is no pleading in the Plaint as to what is the total value of the material supplied. Therefore, when the only case pleaded by the plaintiff is that the balance amount due is Rs. 36,71,041 (without pleading what is total material supplied and what is part payment received), it was very important for Plaintiff to prove with cogent evidence what is the balance amount payable, but, as noted supra, Plaintiff has produced 4 ledger extracts, each giving a different version of the amount due. Therefore, it is not possible to accept the plaintiff's case that the plaintiff is entitled to recover the suit claim of Rs. 36,71,041.
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54. However, the plaintiff is still entitled to some relief on the basis of the admissions made by DW 1 that, for transactions between February 2018 and December 2018, defendant No. 1 was liable to pay certain amounts to the plaintiff.
55. The question is how the said amount admitted to be due by DW 1 can be quantified. In my view, this amount can be quantified on the basis of emails at Ex. P12 and P14, which are purportedly sent by defendant No. 1 attaching ledger extracts. There is no doubt that, in the cross-examination of DW 1, these emails at Ex. P12 and P14, along with their attachments, have not been confronted to DW 1 to elicit that said emails were sent by defendant No. 2/DW 1. However, in the cross-examination of PW 1, who has produced and got marked these emails, these two documents have not been specifically disputed. The only email which has been disputed in the entire cross-examination of PW 1 by counsel for defendant No. 1 and 2 is the email at Ex. D3, which was produced in the criminal case by the plaintiff. In this regard, at the end of paragraph 4 of the cross-examination of PW 1 40 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 dated 1-7-2023, it is suggested that said Ex. D3 email was not sent by the first defendant, which suggestion is denied by PW 1. On Ex. D3 (email) the date is not stated. Therefore, denial of Ex. D3 does not amount to denial of Ex. P12 email dated 3-7-2019 or denial of Ex. P14 email dated 21-6-2019.
56. Therefore, since these two documents are not disputed by learned counsel for defendant No. 1 and 2 during the cross-examination of PW 1, it has to be held that, it is not disputed by Defendant No. 1 and 2 that, Defendant No. 2 sent these emails on behalf of defendant No. 1 partnership firm. Be it noted that, it is not even the case of Plaintiff that, these emails were sent by Defendant No. 3 because, in the cross- examination of PW 1 by learned counsel for defendant No. 3, at the end of paragraph 13 of the cross-examination, it is elicited that defendant No. 3 has not sent any email to the plaintiff. Therefore, it can safely be concluded that Ex. P12 and P14 have been sent by defendant No. 2 as partner of defendant No. 1. As already noted supra, in the said emails, two different amounts are acknowledged to be due to the plaintiff.
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57. However, in my view, it is the subsequent email which has to be considered as binding admission and not the earlier email because the amount stated in the earlier email is superseded by the second email in which a different amount is stated to be due. Amongst the two emails, it is Ex. P12 dated 3-7-2019 which is the subsequent email. In the ledger extract attached to the said email, it is stated that the amount due is Rs. 33,17,348.
58. Therefore, liability has to be imposed on defendant No. 1 and 2 to pay the said sum of Rs. 33,17,348. This is because, although plaintiff has failed to prove its case, when there is an admission by Defendant No. 2 on behalf of Defendant No. 1 regarding said amount due, on basis of the admission, the suit has to be decreed against Defendant No. 1 and 2.
59. However, no liability can be imposed on Defendant No. 3 because it is admitted that, above email was not sent by defendant No. 3. Therefore, when the plaintiff has not proved his case and when there is a conflict of interest between defendant No. 1 and 2 on one hand and defendant No. 3 on 42 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 other hand and defendant No. 3 has specifically raised the contention that defendant No. 1 and 2 are colluding with the plaintiff, on the basis of admissions of defendant No. 2, liability cannot be imposed on defendant No. 3.
60. Therefore, I conclude by holding that, since the plaintiff has failed to prove his case, the suit is liable to be dismissed against defendant No. 3. However, on the basis of the admissions of defendant No. 2, the suit is required to be decreed only against defendant No. 1 and 2 for the amount admitted to be due in Ex. P-12 email, that is Rs. 33,17,348.
61. In so far as the interest component is concerned, the plaintiff is seeking interest at 18 % per annum from the date of purchase of the goods. However, if the valuation slip is perused, it is noted that the court fee is paid only for the principal sum of Rs. 36,71,004 but no court fee is paid for interest accrued prior to the suit. Therefore, the plaintiff cannot be awarded pre-suit interest and the plaintiff can only be awarded interest from the date of suit. Considering that it is a commercial transaction, I am of the view that the plaintiff 43 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 is entitled to interest at 18 % per annum from the date of suit till the date of realization.
62. Before parting, one contention raised by learned counsel for defendant No. 3, based on Ex. D17 and D18, may be considered. It was argued that Ex. D17 and D18 are two agreements dated 16-3-2024, viz. during the pendency of the present suit, under which the plaintiff and defendant No. 2 have settled the subject matter of the suit and also agreed to report the settlement to court. However, it is to be noted that, when these documents were confronted to PW 1, although he has admitted the signature of defendant No. 2 on the said documents, he has denied that his signature is there on the said documents. In this regard, at the end of paragraph 25 of the cross-examination of PW 1, dated 20-06-2024, he has stated as follows;
"Now Ex. D17 and D18 are shown to the witness and another signature on the said documents are confronted, and the witness says it is not my signature."44
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63. Therefore, when the plaintiff has denied his signature on Ex. D17 and D18, these documents cannot be used against the plaintiff to contend that the plaintiff and defendant No. 2 have settled the matter.
64. For the detailed reasons noted supra, I hold that the plaintiff is entitled to recover the sum of Rs. 33,17,348 as reflected in Ex. P12, along with interest on the said sum at a rate of 18% per annum from the date of suit till the date of realization, only from defendant No. 1 and 2 and the suit against defendant No. 3 is liable to be dismissed. Accordingly, I answer issues No. 1 to 3.
Issue No. 4:
65. Having answered issues No. 1 to 3 as above, I proceed to pass the following:-
ORDER The suit is partly decreed, with cost.
It is held that the plaintiff is entitled to recover the sum of Rs. 33,17,348 along with interest at 18% per annum from the date of 45 CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 suit till the date of realization only from defendant No. 1 and 2.
The suit against defendant No. 3 is
dismissed.
Office to draw decree accordingly.
Office to issue soft copy of this judgment to both sides by email if furnished.
[Dictated using Dragon Professional Speech Recognition Software Version 15.3, transcript revised, corrected, signed and then pronounced by me in open court on this the 16th day of October, 2024] (Sri. S. Sudindranath) LXXXIII ADDL.CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT; BANGALORE.
ANNEXURE
1. List of witnesses examined on behalf of Plaintiff:
PW.1 : Pradeep Kothari.
2. List of witnesses examined on behalf of Defendants:
DW.1: Bharath Kumar C Jain.
DW.2: Smt.S. Amrutha.
3. List of documents marked on behalf of Plaintiff:
Ex.P.1 : Copy of Registration Certificate. Ex.P.2 : Office copy of invoices along with printout of Eway bill in handwritten page 15 to 141. Ex.P.3to5 : Copy of Ledger Account for the period from 1/4/2017 to 31/3/2018, 1/4/2018 to 31/3/2019 and 1/4/2019 to 31/3/2020. Ex.P.6 : Copy of Legal Notice dt.4/9/2021 .46
CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 Ex.P.7 : Postal Receipt.
Ex.P.8&9 : Two Postal Acknowledgments Ex.P.10 : Reply Notice given by defendant No.3 dt.16/9/2021.
Ex.P.10(a) : Postal Cover.
Ex.P.11 : PIM Report.
Ex.P.12 : Printout of Email dt.3/7/2019 along with
attachment of statement of account.
Ex.P.13 : Printout of Email dt.21/6/2019 along with
attached ledger account.
Ex.P.14 : Printout of Email dt.21/6/2019 along with
attached ledger account.
Ex.P.15 : Certificate U/S.65B of Indian Evidence Act.
Ex.P.16 : C.C of GST printouts.
Ex.P.17 : C.C of documents consisting of 14 sheets.
Ex.P.18 : Covering letter produced by CTO
4. List of documents marked on behalf of Defendants:
Ex.D.1 : C.C of deposition in PCR 9544/2019. Ex.D.2 : C.C of Ledger Account along with certificate in Cheque Bounce Case.
Ex.D.3 : C.C of Email with attached statement along with certificate sent by the defendant.
Ex.D.4 : C.C of evidence given in PCR
No.9545/2019 produced by D3.
Ex.D.5 : C.C of Certificate U/S.65B of Indian
Evidence Act.
Ex.D.6 : C.C of the Invoices.
Ex.D.7 : C.C of the Retirement Deed of D3.
Ex.D.8 : C.C of Ordersheet in Com OS 25765/2019
Ex.D.9 : C.C of plaint in Com OS 25765/2019.
Ex.D.10 : C.C of written statement in Com.OS
25765/2019.
Ex.D.11 : C.C of Memo dt.7/8/2020 in
Com OS 25765/2019.
Ex.D.12 : C.C of plaint in Com OS 26153/2019.
Ex.D.13 : C.C of WS of D3 in Com OS 26153/2019
Ex.D.14 : C.C of Ordersheet in Com OS 2615/3/2019
Ex.D.15 : C.C of Memo dt.19/2020 in
Com OS 26153/2019 (2 Nos.)
Ex.D.16 : Evidence Affidavit filed by D1&D.2
Ex.D.17 : Copy of Agreement dt.6/3/2024.
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CT 1390_Com.OS.736-2022_Judgment.doc KABC170014132022 Ex.D.18 : Copy of Agreement dt.6/3/2024. Ex.D.19 : Copy of chief examination of plaintiff by way of affidavit.
(Sri. S. Sudindranath) LXXXIII ADDL.CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT; BANGALORE.