Bangalore District Court
S.P.Enterprises vs M/S. Image Specialities on 31 January, 2023
1 Com. O.S.No.1566/2022
KABC170029792022
IN THE COURT OF THE LXXXVIII ADDL. CITY CIVIL &
SESSIONS JUDGE (EXCLUSIVE COMMERCIAL COURT):
BENGALURU CITY. (CCH-89)
Present: Sri. P.J. SOMASHEKARA, B.A.,LL.M,
LXXXVIII Addl.City Civil & Sessions Judge
Bengaluru City.
Dated this the 31st day of January 2023
Com.O.S.No.1566/2022
Plaintiff: S.P.Enterprises,
No.2916, 1st Cross,
Kaveripura, Kamakshipalya,
Bengaluru-560 079,
Represented by its Proprietor
Sri. S.R.Renukeshwaraswamy.
(By Sri. B.J.V.K., Advocate)
-vs-
Defendants: M/s. Image Specialities
India Private Limited.,
A Company incorporated
Under the provision of Indian
Companies Act, having it's
Registered Office at Plot No.325-0,
Harohalli Industrial Area,
II Phase, Kanakapura,
Bengaluru-562 112,
Represented by its Managing
Director / Authorized Person
(Exparte)
2 Com. O.S.No.1566/2022
Nature of the suit Money suit
Date of institution of the 29.10.2022
suit
Date of commencement of 05.01.2023
recording of the evidence
Date on which the 31.01.2023
judgment was pronounced
Total duration Year/s Month/s Day/s
00 03 02
JUDGMENT
This is a suit filed by the plaintiff against the defendant for recovery of Rs.18,04,428/- with interest @ 24% p.a. from the date of the suit till its realization.
2. Nut shell of the plaint are as under :
The plaintiff in its plaint has alleged that who is the proprietary concern dealing in supply of chemicals and acids and running the business in the name and style of S.P.Enterprises. The defendant is the company incorporated under the provisions of Indian Companies Act, represented by its Managing Director/ Authorized Signatory and who is none other than its customer used to purchased chemicals on credit basis and the defendant maintained running account for the materials purchased. The defendant has placed the orders for supply of Soda Ash Light, 3 Com. O.S.No.1566/2022 Labsa LMB-Gray 90, special cleaning products, acid slurry and other chemicals/ products against purchase order P.O.No.DKS-
079/19-20 dated 22.10.2019 and also made orders over phone, and online. As per the orders placed by the defendant has supplied the chemicals to the defendant as under.
(i) Tax Invoice No.01051 and e-way bill No.141170421867 both dated 23.10.2019, 4,000 kg of Soda Ash Light-Nirma and 1,500 kg LABSA LMW-Grade 90, for a sum of Rs.2,70,810/-
(Rupee. Two Lakhs Seventy Thousand Eight Hundred Ten Only).
(ii) Tax Invoice No.01359 and e-way bill No.151185567625 both dated 18.12.2019, 1,500 kg of cleaning products, for a sum of Rs.42,90,480/- (Rupee. Forty Two Lakhs Ninety Thousand Four Hundred and Eighty Only).
(iii) Tax Invoice No.01379 and e-way bill No.191186547235, both dated 21.12.2019, 31,000 kg of Soda Ash Light-Nirma, for a sum of Rs.8,46,827/- (Rupee. Eight Lakhs Forty Six Thousand Eight Hundred and Twenty Seven Only).
3. The defendant has made payment periodically and as per the accounts maintained by the defendant as on 29.12.2020 is due a sum of Rs.12,70,928/- and as per the Tax invoice/contract, in case of delayed /non payment of amount the defendant has agreed to pay interest at the rate of 24% p.a. on the amount due. Thus sent e-mails on various dates and personally requested the defendant to pay the balance amount but in spite of repeated request and reminders the defendant has failed and neglected to pay balance amount. Thus got issued a legal notice dated 4 Com. O.S.No.1566/2022 14.12.2021 calling upon the defendant to pay the amount due and the defendant has received the said notice but failed and neglected to pay the amount due.
4. The plaintiff in its plaint has further alleged that the defendant has failed to make due payments in spite of several reminders and personal demands thereby initiated Pre-Institution Mediation before the DLSA Urban in PIM No.938/2022 and the defendant failed to appear before the mediation. Thereby, non starter report has been issued. Now, the defendant is due a sum of Rs.18,04,428/-. The cause of action for the suit which arose on 22.10.2019 when the defendant has placed the orders for supply of materials and raised invoices on 23.10.2019, 10.12.2019 and 21.12.2019 when the materials have been supplied on number of occasions and when the demand has been made to the defendant for payment of due amount on 14.12.2021 and when the legal notice has been issued on 12.04.2022 calling upon the defendant for payment of due amount and when the non starter report issued by the DLSA Urban within the jurisdiction of this court and prays for decree the suit.
5. In response of the suit summons, the defendant did not appear nor filed its Written Statement as it was placed exparte. 5 Com. O.S.No.1566/2022
6. The plaintiff in order to prove the plaint averments has examined its GPA Holder as PW.1 and got marked the documents as Ex.P.1 to Ex.P.13 and the plaintiff has not examined any witness in its favour.
7. Heard the arguments on the plaintiff side.
8. The points that arise for court consideration are as under:
1. Whether the plaintiff is entitled for the relief as prayed for?
2. What order or decree?
9. My answer to the above points are as under:
Point No.1: In the Affirmative;
Point No.2: As per final order, for the following;
REASONS
10. POINT NO.1: Before embarking on point No.1 it is just and necessary to narrate the gist of the case for the proper appreciation of the point No.1 as the plaintiff being the company proprietary concern has approached the court on the ground that he has supplied the chemicals to the defendant on credit basis though the defendant has purchased the chemicals but did not pay the due amount in spite of repeated request and demand thereby got issued a legal notice calling upon the defendant for payment of the due amount but he did not do so. Thereby, the plaintiff has filed the instant suit against the defendant. 6 Com. O.S.No.1566/2022
11. The plaintiff in order to prove the plaintiff averments has examined its GPA Holder as PW.1 who filed his affidavit as his chief examination by reiterating the plaint averments stating that the plaintiff is the proprietary concern is the dealer in supply of chemicals and acids. The defendant is one of the customer of the plaintiff used to purchase the chemicals on credit basis and maintaining the running account for the materials purchased. The defendant has placed the orders for supply of soda ash light, LABSA LMV-GRADE 90 Special Cleaning Products, acid slurry and other chemicals/ products against purchase order P.O.No.DKS- 079/19-20 dated 22.10.2019 and also made orders over phone. As per the orders placed by the defendant the plaintiff has supplied the chemicals to the defendant as per the Tax Invoice No.01051, 01359 and 01379 and defendant has made payment periodically as per the accounts maintained by the defendant as on 29.12.2020 the defendant was due a sum of Rs.12,70,928/- but the defendant in spite of repeated request and personal approaches did not pay the due amount. Thereby, got issued a legal notice calling upon the defendant for payment of the due amount with interest but the defendant did not come forward to pay the due amount with interest. Thereby, the plaintiff has filed the instant suit against the defendant.
7 Com. O.S.No.1566/2022
12. It is an admitted fact the plaintiff has filed the instant suit against the defendant for recovery of Rs.18,04,428/- with interest at the rate of 24% p. a. on the ground that the defendant had purchased the chemicals but did not pay the said amount. Now, the question arises whether this court having the jurisdiction to adjudicate the matter which is dispute and whether this court having the pecuniary jurisdiction, though there is no dispute on these aspects. But, before considering the other aspects it is necessary to consider these aspects. Thus, this court drawn its attention on Sec.2(i)(c)(ii) of Commercial Courts Act, 2015 which reads like this:
(c) "commercial dispute" means a dispute arising out of-
(i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents;
(ii) export or import of merchandise or services;
(iii) issues relating to admiralty and maritime law;
(iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing and financing of the same;
(v) carriage of goods;
(vi) construction and infrastructure contracts, including tenders;
(vii) agreements relating to immovable property used exclusively in trade or commerce;
(viii) franchising agreements;
(ix) distribution and licensing agreements;8 Com. O.S.No.1566/2022
(x) management and consultancy agreements;
(xi) joint venture agreements;
(xii) shareholders agreements;
(xiii) subscription and investment agreements pertaining to the services industry including outsourcing services and financial services;
(xiv) mercantile agency and mercantile usage;
(xv) partnership agreements;
(xvi) technology development agreements; (xvii) intellectual property rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits; (xviii) agreements for sale of goods or provision of services;
(xix) exploitation of oil and gas reserves or other natural resources including electromagnetic spectrum; (xx) insurance and re-insurance;
(xxi) contracts of agency relating to any of the above; and (xxii) such other commercial disputes as may be notified by the Central Government.
The above section 2(i)(c)(ii) is very much clear that export import of merchandise or services. "Merchandise" means "goods that are for sale". And Export and import means sending out of country and fetching from other country. This clause includes all kinds of export and import business of mercantile articles and services rendered there for. Naturally it means export or import of goods or articles which are for mercantile purpose only. So, the 9 Com. O.S.No.1566/2022 facts which plead in the plaint falls within the ambit of commercial dispute.
13. Now the question is whether the dispute which stated supra comes under the jurisdiction of commercial court. Thus, this court drawn its attention on Sec.6 of Commercial Courts Act, 2015 which reads like this:
Jurisdiction of Commercial Court.
6. The Commercial Court shall have jurisdiction to try all suits and applications relating to a commercial dispute of a Specified Value arising out of the entire territory of the State over which it has been vested territorial jurisdiction.
Explanation.-For the purposes of this section, a commercial dispute shall be considered to arise out of the entire territory of the State over which a Commercial Court has been vested jurisdiction, if the suit or application relating to such commercial dispute has been instituted as per the provisions of sections 16 to 20 of the Code of Civil Procedure, 1908 (5 of 1908).
The above provision is very much clear that the commercial court shall have the jurisdiction to try all suits and applications relating to commercial dispute.
10 Com. O.S.No.1566/2022
14. Now, the question is whether this court having the pecuniary jurisdiction to adjudicate the matter which is in dispute. Thus, this court drawn its attention on Sec.3 of Commercial Courts Act, 2015 which reads like this:
Section 3: Constitution of Commercial Courts.
3. (1) The State Government, may after consultation with the concerned High Court, by notification, constitute such number of Commercial Courts at District level, as it may deem necessary for the purpose of exercising the jurisdiction and powers conferred on those Courts under this Act:
2[Provided that with respect to the High Courts having ordinary original civil jurisdiction, the State Government may, after consultation with the concerned High Court, by notification, constitute Commercial Courts at the District Judge level:
Provided further that with respect to a territory over which the High Courts have ordinary original civil jurisdiction, the State Government may, by notification, specify such pecuniary value which shall not be less than three lakh rupees and not more than the pecuniary jurisdiction exercisable by the District Courts, as it may consider necessary.] 3[(1A) Notwithstanding anything 11 Com. O.S.No.1566/2022 contained in this Act, the State Government may, after consultation with the concerned High Court, by notification, specify such pecuniary value which shall not be less than three lakh rupees or such higher value, for whole or part of the State, as it may consider necessary.] The above provision is very much clear that by virtue of the notification specified the pecuniary value of this court which shall not be less than Rs.3,00,000/- Admittedly, the plaintiff in the plaint itself has stated that the defendant is due a sum of Rs.18,04,428/- with interest and the plaintiff has filed the instant suit against the defendant on 29.10.2022 i.e. after the amendment of Commercial Courts Act, 2018. Prior to the amendment, the pecuniary jurisdiction of the commercial court is of Rs.1 Crore and above, but by virtue of the amendment of Commercial Courts Act, the pecuniary jurisdiction of the commercial court shall not be less than Rs.3,00,000/-. So this court having the pecuniary jurisdiction to adjudicate the matter which is in dispute by virtue of the provisions which stated supra.
15. The plaintiff in support of the oral evidence has produced the documents which marked as Ex.P.1 to Ex.P.13. Ex.P.1 is the original GPA which executed by the plaintiff in favour of the PW.1 to prosecute the case against the defendant. Ex.P.2 is the 12 Com. O.S.No.1566/2022 online generated purchase order is reflects the defendant has placed the purchase order through online to the plaintiff for supply of chemicals. Ex.P.3 to Ex.P.5 are the tax invoices are clearly reflects the plaintiff has supplied the chemicals to the defendant. Ex.P.6 is the carbon copy of the consignment note reflects the plaintiff has supplied the chemicals to the defendant Ex.P.7 and Ex.P.8 are the ledger account are reflects the plaintiff has supplied the chemicals to the defendant and defendant is due to the plaintiff. Ex.P.9 to Ex.P.11 are clear the plaintiff got issued a legal notice through RPAD and the notice has been served on the defendant. Ex.P.12 is the bank challen reflects the plaintiff has paid Rs.1,000/- towards Pre-Institution-Mediation. Ex.P.13 is the certificate filed U/s. 65 B of the Indian Evidence Act. So, the documents which are marked as Ex.P.1 to Ex.P.13 are coupled with oral evidence of the PW1.
16. If at all the defendant was not approached the plaintiff nor requested to supply the chemicals or received the chemicals as per the invoices in response of the summons would have appeared and resisted the claim of the plaintiff but the reasons best known to the defendant in spite of the service of summons did not appear nor resisted the claim of the plaintiff. So, the 13 Com. O.S.No.1566/2022 contents of the plaint and documents which are marked as Es.P.1 to Ex.P.13 are remained unchallenged and the plaintiff has proved its case through oral and documentary evidence. Hence, I am of the opinion that the point No.1 is answered in the Affirmative.
17. POINT NO.2: In view of my answer to point No.1 as stated above, I proceed to pass the following;
ORDER The suit of the plaintiff is decreed with costs. The defendant is hereby directed to pay decretal amount of Rs.18,04,428/- with interest at the rate of 24% p. a from the date of the suit till its realization.
Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected by me and then pronounced in the open court on this the 31st day of January, 2023) (P.J. Somashekara) LXXXVIII Addl. City Civil & Sessions Judge, (Exclusive Commercial Court), Bengaluru City List of witnesses examined on behalf of plaintiff:
P.W.1 Sri.L.Mruthunjaya List of witnesses examined on behalf of defendant: 14 Com. O.S.No.1566/2022
Nil List of documents exhibited on behalf of plaintiff:
Ex.P.1 Original GPA dt:04.01.2023
Ex.P.2 Online generated purchase order
Ex.P.3 Tax invoice with E-way bill dt:23.10.2019
Ex.P.4 Tax invoice with E-way bill dt:18.12.2019
Ex.P.5 Tax invoice with E-way bill dt:21.12.2019
Ex.P.6 Carbon copy of the consignment note
dt:15.12.2019
Ex.P.7 Ledger account from 01.04.2022 to
31.03.2021
Ex.P.8 Ledger account from 01.04.2019 to
31.03.2020
Ex.P.9 Copy of the legal notice dt:14.12.2021
Ex.P.10 Postal receipt
Ex.P.11 Postal track consignment
Ex.P.12 Bank challan
Ex.P.13 Certificate U/Sec.65(B) of Evidence Act
List of documents exhibited on behalf of defendant:
Nil (P.J. Somashekara) LXXXVIII Addl. City Civil & Sessions Judge, (Exclusive Commercial Court), Bengaluru City