Karnataka High Court
M/S Precision Engineering Enterprises vs M/S Oriental Medicines Pvt Ltd on 4 February, 2013
Author: Subhash B.Adi
Bench: Subhash B. Adi
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF FEBRUARY 2013
BEFORE
THE HON'BLE MR. JUSTICE SUBHASH B. ADI
REGULAR FIRST APPEAL No.517/2008 (M)
BETWEEN :
M/s. PRECISION ENGINEERING ENTERPRISES
NO. 75/8, BAHUBALINAGARA, JALAHALLI POST
BANGALORE - 560 013
REPRESENTED BY ITS PROP.
SRI M.V. VIJAYAN.
...APPELLANT
( BY SRI. D R RAJASHEKHARAPPA, ADV., )
AND :
M/s. ORIENTAL MEDICINES PVT. LTD.,
NO.157/14, BALABHAVAN ROAD, M.D.WARD
ALAPPUZHA - 588 011
KERALA STATE.
...RESPONDENT
(SERVED)
THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 OF CPC AGAINST THE JUDGMENT AND DECREE
DT.16.11.2007 PASSED IN O.S.NO.4561/2000 ON THE FILE OF
2
THE XIX ADDL. CITY CIVIL AND SESSIONS JUDGE,
BANGALORE, DISMISSING THE SUIT FOR RECOVERY OF
MONEY.
THIS APPEAL IS COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the plaintiff against the judgment and decree in O.S. No.4561/2000 on the file of the XIX Addl. City Civil Judge, Bangalore, dated 16th November 2007.
2. The plaintiff sought for recovery of a sum of Rs.28,798/- along with 12% interest. The case of the plaintiff is that, it is a small scale industry engaged in the manufacture of Dyes and Punches. The defendant is a Company engaged in the business of manufacture of medicines such as tablets and various other medicinal items. It had placed purchase order with the plaintiff for manufacture and supply of one set of dyes and punches for capsule shaped tablet suitable for Cadmach 16 Station Rotory Tabletting Machine as per invoice purchase order dated 20th July 1998. Earlier to placing the order, the 3 defendant had called for quotation and accordingly, the rates were agreed and fixed at Rs.22,400/- exclusive of taxes. In accordance with the purchase order, the plaintiff manufactured the said dyes and punches and forwarded the same to the defendant. The plaintiff, while going through the process of manufacture and supply, manufactured a sample dye and forwarded the same to the defendant for approval. Thereafter, the plaintiff proceeded to complete the dyes and punches as stipulated by the defendant. After dispatch of the goods manufactured by the plaintiff, the defendant received the same. Thereafter, the defendant making use of dyes and punches, manufactured the tablets and then rejected the whole set of dyes and punches sent by the plaintiff. The defendant had deliberately and intentionally to cause heavy loss to the plaintiff had returned the same. Accordingly, he filed the suit.
3. The defendant contested the suit inter alia alleging that, the defendant had placed purchase order for manufacture of dyes and punches, which are to be used for the purpose of manufacturing 4 medicine. The order placed by the defendant was a very specific order as per the invoice, and they had sent the tablets to the plaintiff to enable it to prepare dyes and punches for 1 gram and the samples were also sent. The dyes and punches manufactured by the plaintiff were not in accordance with the design and the quantity mentioned for the medicines. The defendant sustained heavy loss. Immediately, it was brought to the notice of the plaintiff and dyes and punches were returned with appropriate acknowledgement. The plaintiff sent notice to the defendant, for which, the defendant gave suitable reply. On these allegations and others, the defendant contested the matter.
4. The trial Court framed the following issues:-
"1. Does plaintiff proves that the dyes and punches manufactured were as per the approved sample by the defendant ?
2. Does plaintiff prove that he sustained loss of Rs.23,396/- as averred ?
3. Whether this Court has no jurisdiction to try the suit ?
4. Is plaintiff entitled to the suit claim ?5
5. What relief ?"
5. On hearing both sides, the trial Court held that, there is no dispute that the defendant had placed an order as per Ex.P1. But the purchase order was very specific, wherein, manufacturing of dyes and punches was covered by the guidelines of pharmacopoeias and there is specific mention that error to the extent of + or - 0.15 mm in length, 0.03 mm in thickness, 0.06 mm in width can be controlled with the adjustment in the machine itself and requested to make payment to defendant. The plaintiff`s allegation that the minor variation could be controlled, however was not accepted by the defendant as it was examined by DWs.1 and 2 as per Exs.D1 and D2 and accordingly, all the goods sent by the plaintiff were returned. Goods have been returned since they were not according to the specification. This fact is not disputed by the plaintiff in his evidence and accordingly, the trial Court rejected the suit.
6. Sri Rajashekharappa, learned counsel for the appellant 6 submitted that, the goods were manufactured as per the specification and minor variation to the extent of + or - 0.15 mm in length, 0.03 mm in thickness, 0.06 mm in width is permissible and this fact is brought to the notice of the defendant as per Ex.P6, the letter written by the plaintiff and fax message as per Exs.P7 and P8. Despite that, the trial Court only on the ground that the goods have been returned, has dismissed the suit.
7. The facts, which are not in dispute are that, the defendant is a manufacturer of medicines. It had placed the order for dyes and punches and dyes and punches were required to be according to the specification of Indian pharmacopoeia. It is also not in dispute that the defendant has not accepted the goods and has returned the same. Even according to Exs.P6, P7 and P8, though the plaintiff alleges that he had manufactured the goods with minor variation, but it is not in dispute that, the goods had remained with the plaintiff. As such, the Trial Court had not decreed the suit for recovery of a sum of Rs.28,798/- along with interest. Having regard to the fact that Exs.D1 7 and D2, letters show that the defendant had not accepted the goods sent by the plaintiff and PW.1 in his evidence does not dispute that there were variations in the preparation of the goods and the defendant had raised objections about the said variation as per letter Ex.P6, admitted that he had confirmed that the allegations made by the defendant as correct and also admitted that the manufacturing of dyes and punches for the medicine purpose are required to be manufactured to the exact specification. It is further admitted that if there is variation, stripping machine will also not accept the tablets. PW-2 has also admitted that there is variation in manufacturing the dyes and punches required for the purpose of medicine which has to be according to the specification and if there is any variation, it cannot be stated that the defendant could have still accepted the goods. As such, the Trial Court, having regard to these circumstances, has found that the goods could not have been accepted and accordingly has been returned.
8. In these circumstances, I find no ground to interfere with 8 the judgment and decree passed by the Trial Court. Hence, the appeal fails and is dismissed accordingly. However, if the appellant has any other remedy, it is open to the appellant to avail the same.
Sd/-
JUDGE sma/RV