Bangalore District Court
Atharvass Traders Llp vs Maruthi Trader on 6 July, 2024
KABC170020442023
IN THE COURT OF LXXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH-85) (COMMERCIAL COURT),
BENGALURU
DATED THIS THE 6th DAY OF JULY 2024
PRESENT
SRI.RAMAKANT CHAVAN,
B.Com., LL.B.(Spl)
LXXXIV ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com.O.S.No.962/2023
PLAINTIFF:
Atharvass Traders LLP,
The LLP is incorporated under the LLP
Act 2008, Regd. Office at
No.71, Surya Residency,
6th A Cross, A.R. Extension,
Gandhinagar, Bengaluru - 560 005
Presently at :
No.902, 9th A Cross, 6th Main,
2nd Stage, West of Chord Road,
Bengaluru - 560 086
Rep. by its Authorized Signatory
Sri.H.R.Mohan Kumar
(By Sri.Gnanamurthy C., Adv.)
AND
DEFENDANT:
Maruthi Trader,
Renuka Nagar,
Doddaballapur Road,
2 Com.O.S.No.962/2023
Nelamangala Taluk,
Bengaluru District - 562 123
Rep. by its Proprietor
Sri.Basavaraju K.S.
(By Sri.T.K.Hanumantharaju, Adv.)
Date of Institution 30.08.2023
Nature of suit For recovery of money
Date of First Case 02.03.2024
Management Hearing
Date of commencement of 07.03.2024
recording of evidence
Date on which judgment 06.07.2024
pronounced
Time taken for disposal Years Months Days
1) From the date of First Case 00 04 04
Management Hearing
2) Total duration 00 10 06
LXXXIV Addl. City Civil & Sessions Judge
(CCH-85) Commercial Court, Bengaluru
JUDGMENT
This is a suit filed by the plaintiff for recovery of Rs.10.00 lakhs together with interest at the rate of 18% p.a. from the date of filing the suit till the date of realization and costs.
3 Com.O.S.No.962/20232. Brief facts of the plaintiff's case are that the plaintiff is a private limited company. The plaintiff is engaged in the business of Cold Storage, Warehouse like keeping fruits, vegetables etc. to preserve, also for banana ripening and logistics. The defendant is a sole proprietorship concern and availed services from the plaintiff company. The defendant used the Warehouse service for keeping bananas in Cold Storage on a rental basis for ripening and periodically obtaining credit from the plaintiff. According to agreed mutually on terms and conditions as outlined in "ಒಪ್ಪಿ ಗೆ ಪತ್ರ " or consent document on 01.04.2015 to 28.02.2016, both the plaintiff and the defendant orally consented to continue the Agreement. These Agreements are ongoing, extended and based on mutual understanding between the plaintiff and the defendant.
It is further pleaded that the plaintiff raised bills of each and every service performed for payment, although the defendant has acknowledged the receipt of such invoices against the defendant for refrigerated storage service. Despite acknowledging the liability to pay the outstanding balance as on 31.10.2018, which amounts to Rs.13.00 lakhs, the defendant has consistently failed to make payments, even in spite of notice. Later the defendant has paid Rs.1.00 lakhs each, on 18.01.2019 15.02.2019, 14.03.2019, totally Rs.3.00 lakhs. The defendant is in due of Rs.10.00 lakhs.
It is further pleaded that the defendant had made payments against the specific bills / invoices, both the parties maintaining 4 Com.O.S.No.962/2023 running account. The plaintiff has kept the account. These documents clearly go to show that the outstanding balance from the defendant on various dates. The defendant has made last payment of Rs.1.00 lakh through cheque on 14.03.2019. In the audit and reconciliation of the defendant's account maintained by the plaintiff, the statement ledger from 01.04.2018 to 31.03.2022 shows the outstanding balance on 31.03.2019 was Rs.10.00 lakhs. The defendant is liable to pay the said amount with interest. The plaintiff requested the defendant on several occasions for repayment of the amount and also sending his messenger. The defendant did not pay the amount. The plaintiff has filed PIM application No.2218/2022 before the DLSA, Bengaluru Urban, there also the defendant appeared, his counsel submitted that there is no likelihood of compromise. Hence, the application was closed. Therefore, the plaintiff is constrained to file this suit and prays for decree the suit.
3. On service of summons, the defendant has appeared through its counsel. The defendant has filed its written statement and denied most of the contents of the plaint averments. It is further contended that, as per the Agreement between the defendant and the plaintiff from 01.04.2015 to 28.02.2016, the defendant dealt with the plaintiff for ripening the banana in the Cold Storage of the plaintiff. Later there were no transactions between the defendant and the plaintiff. There was no oral consent by the defendant for continuation of the Agreement. As on the date of closure of the Agreement on 28.02.2016, the balance due to the plaintiff was Rs.3.00 lakhs and same has been 5 Com.O.S.No.962/2023 paid in Three installments of Rs.1.00 lakh each on 18.01.2019, 15.02.2019 and 14.03.2019.
It is further pleaded that the plaintiff has filed this suit only to harass the defendant. The legal notice sent on behalf of the plaintiff is on 28.06.2022 is not sustainable. The plaintiff has created the documents and produced the same. There is delay of 372 days, hence the suit of the plaintiff is not maintainable. The suit of the plaintiff is based on the consent Agreement dated 01.04.2015 and it was closed on 28.02.2016. The plaintiff has registered its Firm on 31.03.2016 under Sec.58(1) of LLP Act. After completion of the period of Agreement, the suit is filed which is not maintainable. This court has no jurisdiction to entertain the suit. Hence prays for rejection of the suit.
4. Based on the above, this court has framed the following:
ISSUES
1. Whether the plaintiff proves that the defendant had availed services from it and used the Warehouse for keeping Bananas in Cold Storage on rental basis for ripening and executed a consent document - Oppige Pathra from 01.04.2015 to 28.02.2016?
2. Whether the plaintiff proves that the defendant had acknowledged the balance of Rs.13.00 Lakhs on 31.10.2018 and only paid Rs.3.00 Lakhs on different dates -
18.01.2019, 15.02.2019 and 14.03.2019 Rs.1.00 Lakh each?6 Com.O.S.No.962/2023
3. Whether the defendant proves that the Consent Deed dated 28.02.2016 is over?
4. Whether the suit is barred by limitation?
5. Whether the plaintiff is entitled for the relief sought?
6. What order or decree?
5. To prove the case, the plaintiff's authorized signatory is examined as PW1 and got marked some documents at Ex.P1 to P38, and the plaintiff examined two witnesses as PW2. He has produced documents at Ex.P39 to P45 and another witness is examined as PW3.
6. The defendant's Proprietor is examined as DW1 and got marked some documents at Ex.D1 and D2. A witness is examined on behalf of the defendant as DW2.
7. Heard Advocate for the plaintiff. The learned counsel for the defendant has submitted his written arguments.
8. My findings on the above issues are:
Issue No.1: In the affirmative Issue No.2: In the affirmative Issue No.3: In the negative Issue No.4: In the affirmative Issue No.5: Does not survive for consideration. Issue No.6: As per the final order for the following 7 Com.O.S.No.962/2023 REASONS
9. Issue No.1 to 3: These issues are interlinked to each other. The burden of proving Issue Nos.1 and 2 lies on the plaintiff and Issue No.3 lies on the defendant. To avoid repetition of facts and evidence, I have taken up these issues together for common discussion.
10. The plaintiff's authorized signatory is examined as PW1 and got marked some documents at Ex.P1 to P38. He has narrated the plaint averments. The documents produced by PW1 are certificate of Registration, Board Resolution, Consent Deed, Invoices, account balance carry forward statements, legal notice, postal documents, reply, order Sheet, bank statement, PIM report,, ledger account statement, LLP Form No.15, GST registration certificate etc. at Ex.P1 to P38.
11. In the cross examination, it is forthcoming that the plaintiff Firm is having Three partners by name Sachin Narayan, Priyanka Sachin and Aditya K.G. The Ex.P2 has been issued on 19.09.2022. He has admitted that as per Ex.P3, the duration starts from 01.04.2015. According to him, its tenure is till 31.10.2018. He has identified his signature on Ex.P3 and he knows its contents. It is forthcoming that, after putting signature and after going through the contents of Ex.P3, he came to know that the date mentioned as 28.02.2016. He does not know regarding Two years time mentioned in Ex.P8. He has also identified his signature on Ex.D2 also i.e. GST document. The 8 Com.O.S.No.962/2023 address mentioned in Ex.D2 is the present address of the defendant Firm. It is changed from May 2023. He has admitted that-
"ನಿಡಿ2 ರಲ್ಲಿ ಕೇವಲ ವಾದಿ ಸಂಸ್ಥೆ ನೀಡುವ ಎರಡು ಸೇವೆಗಳ ಬಗ್ಗೆ ಮಾತ್ರ ನಮೂದು ಇರುತ್ತದೆ ಅಂದರೆ ಸರಿ. ಸಾಕ್ಷಿ ಸ್ವ ಹೇಳಿಕೆ, ವಾದಿ ಸಂಸ್ಥೆ ಯ ಜಿ.ಎಸ್.ಟಿ ರ ಅಡಿಯಲ್ಲಿ ವಾದಿ ಸಂಸ್ಥೆ ನೀಡುವ ಇತರೆ ಸೇವೆಗಳಾದ Warehouse, depot2, recipient of goods or services and cold storage ಬಗ್ಗೆ ನಮೂದು ಇರುತ್ತದೆ. ನಿಡಿ2 ರಲ್ಲಿ Warehouse, depot2, recipient of goods or services ಕೂಡ ನಮೂದು ಇದೆ. ಅದರ ಸಂಗಡ Harmonized System of Nomenclature of Goods and Services ಎಂದೂ ಕೂಡ ನಮೂದು ಇರುತ್ತದೆ."
The Ex.P35 is registered on 28.12.2020, the present address of the plaintiff Firm is not mentioned therein. Udyog Certificate has been obtained from Atharva Traders LLP.
12. The rate of rent regarding rooms is Rs.87,500/-, per room as mentioned in Ex.P4 to P11. The defendant had availed Four such rooms on rental basis. On the basis of the weight, the amount has been mentioned in Ex.P4 to P11, according to him, the defendant kept more than 10 Tones of Banana with the plaintiff, hence the rent was charged on the basis of the rooms. He has admitted that, he has no documents to show that the defendant had kept more than 10 Tones of Banana. But, the rooms were given since there was an understanding between the defendant and the plaintiff. He cannot say even how much quantity of banana may be kept in Cold Storage, even no notice has been issued to the defendant for receiving more than 10 Tones of Banana. Even the official of plaintiff Firm had not informed in writing regarding receiving of more than 10 Tones of 9 Com.O.S.No.962/2023 Banana for ripening from the defendant. Even there is no document to show that the Four rooms were given to the defendant. He is recalled. In his further cross examination, he has admitted the Ex.P37 and also Ex.P3 and he has identified his signatures on Ex.P3. The original of Ex.P3 is with the defendant. The Ex.P38 is the copy of the PIM application. He has admitted that as per Ex.P38, the application was filed for recovery of the rent. It is also forthcoming that -
"ನಿಪಿ38 ರ 1 ನೇ ಪ್ಯಾರದಲ್ಲಿ ಬಾಡಿಗೆ ಆಧಾರದ ಮೇಲೆ ನೀಡಿದ್ದಾಕ್ಕಾಗಿ ಪ್ರತಿವಾದಿ ವಿರುದ್ಧ ದಾವಾ ಮಾಡಲಾಗಿದೆ ಅಂದರೆ ಸಾಕ್ಷಿದಾರರು ಪ್ರತಿವಾದಿಗೆ ಬಾಳೆಕಾಯಿಗಳನ್ನು ಹಣ್ಣು ಮಾಡುವ ಸಲುವಾಗಿ ಕೋಣೆಗಳನ್ನು (cold storage) ನೀಡಿದ್ದು ಅದು ಸೇವೆ ಎಂದೂ ಕೂಡ ಪರಿಗಣಿಸಲಾಗುತ್ತದೆ."
He has denied the other suggestions.
13. The PW2 and PW3 are the supporters of the plaintiff Firm. They have filed their affidavits. In the cross examination, PW2 since 12 years he is working with Atharva Traders LLP. He has admitted that the name of M.Basavaraju is mentioned in his affidavit. The defendant is Basavaraj K.S. The PW2 is recalled and he has produced some documents at Ex.P39 to P45.
14. After perusing the cross examination of PW2, nothing is got elicited from the mouth of this witness. The PW2 is recalled and in his further cross examination, it is forthcoming that Ex.P41 consists his photo, but it does not bear the seal of his company. The address mentioned in Ex.P41 is correct. The address mentioned in Ex.P41 and P45 both are different. He has not produced any documents to show that he got appointed in the 10 Com.O.S.No.962/2023 plaintiff firm. But, he has the said document. He has further admitted that there is no word "AT" in Ex.P3 which could be seen in Ex.P41. He has denied the other suggestions.
15. In the same way, after going through the cross examination of PW3, it is forthcoming that in the year 2019 the defendant had paid Rs.3.00 lakhs in Three installments of Rs.1.00 lakh each.
16. The Proprietor of the defendant is examined as DW1, he has filed his affidavit, he has narrated the defence taken by him. The documents produced by DW1 are Letter dated 04.03.2016 and Goods & Services Tax at Ex.D1 and D2.
17. In the cross examination, it is forthcoming that he is having business transactions with Atharva Traders Pvt. Ltd. since 2015. He is doing banana business since 30 years. He does not know whether the Atharva Traders Pvt. Ltd. converted into LLP. He has admitted that Four rooms were reserved for him. According to him, he was paying rent to Atharva Traders Pvt. Ltd. He was using these rooms for ripening bananas at Dabaspet Branch of Atharva Traders Pvt. Ltd. He does not know whether Atharva Traders LLP is having Six branches at Dabaspet, Sompura, Belagavi and Hassan. He has admitted that he had paid amount to Atharva Traders Pvt. Ltd. and not to Atharva Traders Pvt. Ltd. - LLP.
18. During his further cross examination, he has admitted the Ex.P3 i.e. the Agreement. Also identified his signatures on 11 Com.O.S.No.962/2023 Ex.P3, after going through its contents thoroughly, he put his signatures. He has also admitted that -
"ನಿಪಿ3 ರ 2 ನೇ ಪುಟದಲ್ಲಿ 4 ನೇ ಅಂಶ ಅಂದರೆ "ತದನಂತರ ಪ್ರತಿ ವರ್ಷ ಕೊಡುವ ಮೊತ್ತಕ್ಕೆ ರೂ.50,000/- ಸೇರಿಸಿ ಕೊಡತಕ್ಕ ದ್ದು " ಎಂದು ನಮೂದು ಇದೆ ಅಂದರೆ ಸರಿ. ನಾನು ಕೊಡಬೇಕಾದ ಹಣವನ್ನು ಚೆಕ್ ಮುಖಾಂತರ ಪಾವತಿ ಮಾಡಿರುತ್ತೇನೆ. ಎಷ್ಟು ಹಣ ಕೊಡುವುದು ಬಾಕಿ ಎಂದು ನನಗೆ ನೆನಪಿಲ್ಲ . ನಾನು ಅಥರ್ವಾ ಟ್ರೇಡರ್ಸ್ ಪ್ರೆವೈಟ್ ಲಿಮಿಟಿಡ್ ರ ಸಂಗಡ ವ್ಯ ವಾರವನ್ನು 2016 ರಲ್ಲಿ ಮುಕ್ತಾಯಗೊಳಿಸಿದ್ದೇನೆ."
19. He has admitted that, he had received notice as per Ex.P18. He has also identified the Ex.P37 i.e. returned postal cover and also admitted that the address mentioned on Ex.P37 is his address, it is dated 26.05.2022. But, he has not identified the notice therein. But, further said that he has issued reply as per Ex.P21. He has admitted the contents of Ex.P21 in para No.3. He has also replied the notice sent as per Ex.P22 and replied the same. The contents at para No.4 of the Ex.P22 are correct. It is further admitted that -
"2018 ರ ನಂತರ ಕೂಡ ನಾನು ವಾದಿ ಸಂಸ್ಥೆ ಯ ಸಂಗಡ ವ್ಯ ವಹಾರ ಮಾಡುತ್ತಾ ಇದ್ದೆನು ಅಂದರೆ 2016 ರಲ್ಲಿ ವ್ಯ ವಹಾರ ಮುಕ್ತಾಯಗೊಳಿಸಿದ್ದು , ಬಾಕಿ ಉಳಿದಿದ್ದು ಅದನ್ನು ಚೆಕ್ ಮುಖಾಂತರ 2019 ರಲ್ಲಿ ಹಣವನ್ನು ಪಾವತಿ ಮಾಡಿರುತ್ತೇನೆ ಅಂತ ಉತ್ತರಿಸುತ್ತಾರೆ. ಒಟ್ಟು ರೂ.13.00 ಲಕ್ಷ ಹಣ 2019 ರಲ್ಲಿ ವಾದಿಗೆ ನಾನು ಕೊಡುವುದು ಬಾಕಿ ಇತ್ತು ಅಂದರೆ ಸರಿ."
20. He has shown his ignorance that whether he has paid amount to Atharva Traders LLP. He has also admitted that he has made some payments since November 2016 to March 2018 through his Firm i.e. Maruthi Traders as mentioned in Ex.P28 - P29 i.e. the bank statements. According to him, he has closed his business transactions in the year 2016 itself.
12 Com.O.S.No.962/202321. Even he has admitted that since April 2018 to March 2019, he has transferred some amount to the plaintiff Firm through NEFT. According to him, this transfer of amounts was for the transactions of the year 2016. He does not know the Ex.P4 to P11. He has not kept accounts of his business. According to him, there was a due of Rs.10.00 lakhs as per Ex.P17, it is towards Atharva Traders Pvt. Ltd. and not to Atharva Traders LLP. Even he has not maintained the accounts regarding payments to Atharva Traders Pvt. Ltd. It is further forthcoming that -
"ಅಥರ್ವಾ ಟ್ರೇಡರ್ಸ್ ಎಲ್.ಎಲ್.ಪಿ ಗೆ ನಾನು ಹಣವನ್ನು ಚೆಕ್ ಮುಖಾಂತರ ನೀಡಿರುತ್ತೇನೆ ಅಂದರೆ ಚೆಕ್ ಗಳಿಗೆ ನನ್ನಿಂದ ಸಹಿಗಳನ್ನು ಪಡೆದುಕೊಂಡು ಹೋಗುತ್ತಿದ್ದ ರು. ನಾನೇ ಎಲ್ಲಾ ಚೆಕ್ಗಳಿಗೆ ಸಹಿ ಮಾಡತ್ತಿದ್ದೆನು."
22. He was doing his transactions with Dabaspet unit. He has admitted his signature on Ex.D1 at Ex.D1(a). He has further admitted that the seals found on Ex.D1 and Ex.P4 are belong to the plaintiff Firm and they are different. He has denied the other suggestions.
23. The DW2 who is a supporting witness for the defendant. He has filed his affidavit. In the cross examination, it is forthcoming and he has admitted that the Ex.D1 is prepared by him on 04.03.2016. He also deposed that since 2016 there were no transactions with the Atharva Traders LLP. He does not know regarding the account in respect of the plaintiff firm and the defendant firm. Ex.D1 is prepared on the instructions of his brother-in-law Basavaraj K.N. He visited the office of the Atharva 13 Com.O.S.No.962/2023 Traders at Dabaspet and Ex.D1 was handed over on the same day. The Ex.P4 bears the seal of Dabaspet unit/branch. He does not know the signatures found on Ex.D1. He has denied the other suggestions.
24. The learned counsel for the plaintiff has submitted his written arguments basing on the plaint averments and evidence of PW1 to PW3 as well as Ex.P1 to P38. He has pointed out towards the evidence of DW1, DW2 and their admissions during cross examination. He has also pointed out towards the "Oppige Pathra" - Consent Deed and the period mentioned in this document is from 01.04.2015 to 28.02.2016. The said document is marked at Ex.P3. The DW1 has admitted the liability of Rs.3.00 lakhs in the year 2019 to the plaintiff and in the cross examination DW1 has admitted his liability of Rs.10.00 lakhs to the plaintiff company as per Ex.P17. He has also drawn my attention towards the Ex.P17 along with Ex.p4 to P11 i.e. the invoices. He has also drawn my attention towards Ex.P21 and 22 also which are the replies given by the defendant on 17.06.2022 and 04.07.2022. The DW1 has admitted the contents of para No.3 and 4 of the Ex.P21 and P22 respectively, the defendant has handed over the keys and other materials in the month of October 2018 to the plaintiff company. He has drawn my attention towards para No.3 of Ex.P3 which is marked at Ex.P21(A).
25. He has further submitted that the plaintiff company has produced the copies of statement of accounts of the plaintiff 14 Com.O.S.No.962/2023 company for the period of 01.04.2018 to 31.03.2019 at Ex.P27 and for the period 31.03.2017 to 31.03.2018 and from 01.04.2018 to 31.03.2019 as per Ex.P29 and P30. These documents clearly go to show that the defendant was continued the business with the plaintiff upto October 2018. He has also drawn my attention towards the Ex.P31 to P33 i.e. the ledger account maintained by the plaintiff for the period from 01.04.2016 to 30.04.2019. The defendant has paid Rs.3.00 lakhs on Three occasions of Rs.1.00 lakhs each as against the outstanding balance of Rs.13.00 lakhs. The balance outstanding is Rs.10.00 lakhs, for which the plaintiff company has filed the suit. The last payment by the defendant Firm of Rs.1.00 lakh through cheque was on 14.03.2019. The defendant is liable to pay the amount due from it of Rs.10.00 lakhs and also interest at the rate of 18%.
26. Per contra, the learned counsel for the defendant has also submitted his written arguments basing on the defence by the defendant and documents produced on behalf of the defendant as well the evidence of DW1 and DW2. He has further pointed out towards the evidence of the plaintiff, his witnesses and the documents. He has pointed towards the Ex.P2-Resolution, P3 - Oppige Pathra, it is not a registered document. It cannot be looked into. This document is marked with subject to objection. There is no proper authorization to the PW1 from all the partners. The resolution is against the Sec.60(2) of the Limited Liability Partnership Act. As per Ex.P3, the duration was from 01.04.2015 to 28.02.2016. The transactions with the plaintiff firm stopped in 15 Com.O.S.No.962/2023 the year 2016 itself. The plaintiff company has not produced original of the Ex.P3. After perusing the evidence of PW1, the original of Ex.P3 is with the defendant. But it is not mentioned either in the plaint or in the legal notice. Hence, it can be said that the Ex.P3 is created by the plaintiff company. He has pointed out towards the provisions of Sec.17 and 49 of the Registration Act.
27. He has pointed out towards Ex.P4 to P11. The address mentioned in these documents and also the address mentioned in Ex.P36, Ex.D2 are not one and the same. The Ex.P4 to P11 do not contain the name - Sri Cold Storage, Unit of Atharvas. In Ex.P35 also the said name is not forthcoming. These Ex.P4 to P11 also objected for marking. He has also pointed out towards the contents of Ex.P3 - Oppige Pathra. The amount of rent claimed pertaining to Four rooms as per the evidence of PW1. Since, there is no GST number mentioned in Ex.P4 to P11, these are against as per the Rule 18 of the GST. The Ex.P18 i.e. the copy of the notice dated 18.05.2022 and Ex.P19 to P23 and Ex.P37 are also marked subject to objection. He has also pointed out towards the evidence of PW2 and PW3. The suit is not maintainable, it is to be dismissed with cost.
28. During his arguments, he has relied upon the decision reported in RSA No.838/2020, wherein it is held that -
"When a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, it has to 16 Com.O.S.No.962/2023 be decided then and there, when the document would be tendered in evidence. Once, the court rightly or wrongly decided to admit the document in evidence, so far as the parties are concerned, the matter is closed."
It is also held that, "the court examined the necessity of registration of a document required to be registered and its legal consequences, if unregistered. It found that according to the proviso to Sec.49, unregistered document could be used as evidence of collateral purpose if noted that the term collateral purpose would mean purpose / transaction which is independent of, or divisible from transaction which requires registration."
"49. Effect of non-registration of documents required to be registered. - No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered."
29. Also relied upon the following decisions in Civil Appeal No.(S) 3802-3803/2020 in M/s N.N.Global Merchantile Pvt. Ltd. Vs M/s Indo Unique Flame Ltd. & Ors., it is held that "56. We are of the considered view that the finding in SMS Tea Estates [SMS Tea Estates (P) Ltd. Vs Chandamari Tea Company (P) Ltd., (2011) 14 SCC 66 : (2012) 4 SCC (Civ) 777 and Garaver (Garvare Wall Ropes Ltd. Vs Coastal Marine Constructions Engineering Ltd., (2019) 9 17 Com.O.S.No.962/2023 SCC 209 : (2019) 4 SCC (Civ) 324)] that the non payment of stamp duty on the commercial contract would in validate even the arbitration Agreement, and render it non existent in law, and unenforceable, is not the correct position in law"
30. After going through the written arguments on behalf of the parties, I have gone through the pleadings of the parties as well as the evidence of PW1 to PW3 and DW1, DW2 and documents referred produced on behalf of the parties. The main defence raised by the defendant is, the transactions with the plaintiff company were closed in the year 2016 itself. The transactions were with Atharvas Trading Pvt. Ltd. and not with Atharvas Traders LLP. The another defence is, the defendant firm has paid the entire previous dues, till the year 2016. The admitted facts in the case on hand are, the plaintiff company is running a Cold Storage.
31. The documents produced on behalf of the plaintiff company referred above are invoices, account statements, legal notices and replies by the other side. The Ex.P2 to P11, P12 to P17 and P27 to P33 are marked subject to objection. The suit document is Ex.P3 i.e. Oppige Pathra. As per the plaintiff company, the original of the said Oppige Pathra is with the defendant firm and its copy is produced and it is marked at Ex.P3. I have also gone through the provisions of Sec.17 and 49 of the Registration Act.
32. After perusing the contents of Ex.P3, the time mentioned in Ex.P3 was Two years from 01.04.2015. After 18 Com.O.S.No.962/2023 perusing the same, no doubt Two years time is mentioned but date mentioned is 28.02.2016. This is the document on which the plaintiff company has filed this suit, apart from the invoices at Ex.P4 to P11. The defendant firm has not produced the original of Ex.P3. The Ex.P3 is an agreement regarding charge for rent of the rooms. The DW1 has admitted that Four rooms were reserved for ripening the bananas. The DW1 has admitted these signatures on Ex.P3 and also categorically depose that, after going through the contents of Ex.P3, he put his signature. Even the DW1 has paid amount as per this document only. This document can be looked into for collateral purpose, i.e. regarding rate of rent per room and other conditions.
33. After going through the evidence of parties, it is an admitted fact that the defendant had business transactions with the plaintiff company since beginning. It is also categorically admitted by DW1 during his cross examination that he is having business transactions with Atharva Traders since 2015. The main defence by the defendant firm is that, the plaintiff company is not Atharvas Traders Pvt. Ltd., but, it is Atharvas Traders LLP. After perusing the Ex.P4 to P11, i.e. invoices show the name as Atharvas Traders LLP and the address mentioned is "No.71, Surya Residency, 6th A cross, AR Extension, Gandhi Nagar, Bengaluru -
560005". The GST number is also mentioned as 29ABEFA9815G2Z8. The Ex.P34 i.e. LLP Form No.15. The address mentioned in Ex.P34 is same as mentioned in Ex.P4 to P11 referred above and it also shows the name of the plaintiff as Atharvas Traders LLP. It also shows the changed address of the 19 Com.O.S.No.962/2023 plaintiff company as "No.902, Ground Floor, 9th A cross, 6th Main, 2nd Stage, West of Chord Road, Bengaluru North". The Ex.P35 i.e. the copy of Udyam Certificate of the plaintiff company and the address shown is, as shown in Ex.P4 to P11. The Ex.P36 is the GST Registration Certificate. The GST number is same as mentioned in Ex.P4 to P11. New address of the plaintiff company is forthcoming.
34. After perusing the documents produced by the parties referred above, some notices have been exchanged between the parties. The plaintiff company has issued legal notices demanding the dues from the defendant firm wherein the plaintiff's name is forthcoming - M/s Atharvas Traders LLP. The Ex.P18 is one of such copy of the legal notice dated 18.05.2022 wherein also the name of the plaintiff company - M/s Atharvas Traders Ltd. is mentioned. It is replied by the other side as per Ex.P21. The DW1 has admitted the contents at para No.3 of the reply, it reads -
"ನನ್ನ ಕಕ್ಷಿದಾರರು ಸ್ವಂತ ರೀಪಿಲಿಂಗ್ ಕೋಡ್ಲ್ ಸ್ಟೋರೆಜ್ ಯನ್ನು 2018 ನೇ ಇಸವಿ ಸೆಪ್ಟೆಂಬರ್ ತಿಂಗಳಿನಲ್ಲಿ ಪ್ರಾರಂಭ ಮಾಡಿಕೊಂಡ ನಂತರ ಅಕ್ಟೋಬರ್ 2018 ನೇ ಇಸವಿಯಲ್ಲಿ ನಿಮ್ಮ ಕಕ್ಷಿದಾರ ಸಂಸ್ಧೆ ಗೆ ಸಂದಾಯ ಮಾಡಬೇಕಾದ ಸಂಪೂರ್ಣ ಬಾಡಿಗೆ ಹಣವನ್ನು ಸಂದಾಯ ಮಾಡಿ, ಸಂಸ್ಧೆ ಯ ಪೀಠೋಪಕರಣಗಳನ್ನು ಮತ್ತು ಕೋಡ್ಲ್ ಸ್ಟೋರೆಜ್ ನ ಚಾವೀ (ಕೀ ಗಳನ್ನು ) ನಿಮ್ಮ ಸಂಸ್ಧೆ ಯ ಮೇಲ್ವ ಚಾರಾಕರಿಗೆ ಒಪ್ಪಿ ಸಿ ಖಾಲಿ ಮಾಡಿರುತ್ತಾರೆ."
35. The DW1 has admitted the contents at para No.4 of the reply as per Ex.P22, it reads -
20 Com.O.S.No.962/2023"ನನ್ನ ಕಕ್ಷಿದಾರರು ಸ್ವಂತ ರೀಪಿಲಿಂಗ್ ಕೋಡ್ಲ್ ಸ್ಟೋರೆಜ್ ಯನ್ನು 2018 ನೇ ಇಸವಿ ಸೆಪ್ಟೆಂಬರ್ ತಿಂಗಳಿನಲ್ಲಿ ಪ್ರಾರಂಭ ಮಾಡಿಕೊಂಡ ನಂತರ ಅಕ್ಟೋಬರ್ 2018 ನೇ ಇಸವಿಯಲ್ಲಿ ನಿಮ್ಮ ಕಕ್ಷಿದಾರ ಸಂಸ್ಧೆ ಗೆ ಸಂದಾಯ ಮಾಡಬೇಕಾದ ಸಂಪೂರ್ಣ ಬಾಡಿಗೆ ಹಣವನ್ನು ಸಂದಾಯ ಮಾಡಿ, ಸಂಸ್ಧೆ ಯ ಪೀಠೋಪಕರಣಗಳನ್ನು ಮತ್ತು ಕೋಡ್ಲ್ ಸ್ಟೋರೆಜ್ ನ ಚಾವೀ (ಕೀ ಗಳನ್ನು ) ನಿಮ್ಮ ಸಂಸ್ಧೆ ಯ ಮೇಲ್ವ ಚಾರಾಕರಿಗೆ ಒಪ್ಪಿ ಸಿ ಖಾಲಿ ಮಾಡಿರುತ್ತಾರೆ."
36. After going through these exchange of notices, invoices and Udyam Certificate as well as GST registration certificate, there is change in the address of the plaintiff company. The plaintiff company is Atharvas Traders LLP. The Atharvas Traders Pvt. Ltd. is registered as Atharvas Traders LLP i.e. the plaintiff herein. After going through these replies by the defendant firm, it is categorically admitted regarding taking of cold storage rooms and after paying the entire arrears of rent, handed over keys along with furniture and fixtures to the plaintiff company. Admittedly, the defendant firm has paid Rs.3.00 lakhs on Three occasions of Rs.1.00 lakh each, it is an admitted fact. Even the DW1 has admitted the transactions mentioned in Ex.P28 and P29 i.e. the bank statements. These are for the years from 19.11.2016 to 31.03.2019. His say is that the said payments were made for the balance of the year 2016, when the defendant firm has closed its transactions with the plaintiff company. It shows that, the defendant firm had business transactions with the plaintiff company and made some payments through cheques. As per the plaintiff company, the due was Rs.13.00 lakhs and the defendant firm has paid only Rs.3.00 lakhs. The plaintiff company has filed this suit for recovery of the dues. The Ex.P4 to P11 are for the months of March 2018 to October 2018. The Ex.P12, 21 Com.O.S.No.962/2023 account regarding balance for the year 01.04.2018 to 31.03.2019. The Ex.P13 is the statement of account balance as on 31.03.2020 is Rs.10.00 lakhs. The name of the defendant firm
- Maruthi Traders, Nelamangala is forthcoming. It is also on record that the defendant firm had business transactions with the plaintiff company at its Dabaspet unit/branch. Admittedly, the plaintiff company is having Six units / branches. It is also admitted by DW1 during his cross examination.
37. After going through the contents of Ex.P3, the rate of rooms for ripening the fruits / banana. If the fruits exceeds 10 Tonnes, the user has to pay Rs.2.5 lakhs for Four months apart from the regular rents. As could be seen from the evidence of PW1 as discussed supra, he has categorically admitted that he has no documents to show that the defendant firm has kept more than 10 Tonnes of banana, but as per the mutual understanding Four rooms have been allotted. Regarding reserving of Four rooms by the plaintiff company is also admitted by DW1. The PW1 has not sure that how many Tonnes of Bananas kept in a room. Even no notice has been issued by the plaintiff company to the defendant firm for receiving more than 10 Tonnes of bananas for ripening. Even he has admitted that there is no document to show that Four rooms were allotted / kept for the defendant firm. Since, DW1 has admitted regarding reserving Four rooms for defendant firm. Therefore admitted fact need not be proved. It is clear that Four rooms were reserved / kept for the defendant firm. As per Ex.P4 to P11, the rate of monthly rent of a room is Rs.87,500/-. Four rooms were kept, it amounts to Rs.3.5 lakhs.
22 Com.O.S.No.962/2023The total amount as mentioned in Ex.P4 to P11 comes to Rs.28.00 lakhs. It is mentioned in the Ex.P16 i.e. the ledger account statement pertaining to defendant firm - Maruthi Traders, Nelamangala. As per the Ex.P28 and P29, the defendant firm has made payments on several dates, which is admitted by DW1. Now the due is Rs.10.00 lakhs as per Ex.P13 to P15. The Ex.P21(a) and P22(a) are admitted by DW1 during his cross examination. According to him, he has paid the rents and handed over the keys. But, the defendant firm has not produced any cogent evidence to show that it has paid all the dues to the plaintiff company in respect of the rents.
38. In regard to Ex.P3 is concerned, the learned counsel for the defendant submitted that it is a created document for the purpose of this suit, it cannot be looked into and moreover it is not stamped and a registered document. On the other hand, the learned counsel for the plaintiff submitted that, the original of the Ex.P3 is with the defendant itself, but, deliberately the defendant has not produced the same. Its copy was taken. Moreover, the said document is admitted by DW1 during his cross examination and also admitted its recitals. I have also gone through the decision relied upon by the learned counsel for the defendant. The principles laid down in this decision are well founded. In the decided case, the facts and circumstances are entirely different. The said decision is not come to the aid of the defendant. As rightly pointed out for the learned counsel for the plaintiff and as discussed supra, the DW1 has categorically admitted its signatures on Ex.P3. Moreover, he has also categorically admitted 23 Com.O.S.No.962/2023 that after going through the Ex.P3, he put his signatures. Moreover, after perusing the Ex.P21 and 22 i.e. the replies given by the DW1, the signatures are forthcoming. After perusing the signatures on Ex.P21 and P22 and on Ex.P3, all are similar one. Therefore, it cannot be said that the Ex.P3 is a concocted document. Moreover, it is prepared for the parties on their mutual consent. It is written on a letterhead and not on the stamp paper. Therefore, the question of payment of stamp duty does not arise.
39. After going through the contents of Ex.P21(a) and P22(a) as stated supra, the defendant stated that, he has started his own cold storage in the month of September 2018 and later in the month of October 2018, he paid the entire amount to the plaintiff company and also handed over the belongings as well as keys of the rooms. Here, one more point pertinent to note that, the DW1 has shown his ignorance by saying that, he does not know whether he has made payments to Atharva Traders LLP. But, he has admitted that he has made some payments through bank transactions through Atharva Traders LLP only. The Ex.P28 and P29 i.e. the bank statements. The DW1 has categorically admitted that the payments have been made on different dates through Maruti Traders to Atharva's Traders LLP. After going through Ex.P28 and P29, the account title is shown as - Atharvas Traders LLP. Therefore, it cannot be said that the DW1 does not know the Atharvas Traders LLP. It shows that he is suppressing some facts. If as per the say of the defendant, the transactions between the plaintiff and the defendant came to an end on 28.02.2016, then why the defendant has made payments as 24 Com.O.S.No.962/2023 could be seen in Ex.P28 and P29 referred above. Therefore, in the light of discussions made supra, the plaintiff is able to prove the Issue Nos.1 and 2 by placing cogent documents. The defendant firm has failed to prove that the Consent Deed - Ex.P3 is come to an end on 28.02.2016 by placing reliable and cogent evidence. Hence, I answer Issue Nos.1 and 2 in the affirmative and Issue No.3 in the negative.
40. Issue No.4: This is in regard to point of limitation. The defendant has raised a defence that the suit of the plaintiff company is barred by law of limitation.
41. The learned counsel for the plaintiff has submitted his arguments on clarification and he has relied upon the decisions in 2023 LiveLaw SC 865 in Sheo Raj Singh (Deceased) through LRs & Ors. Vs Union of India & Ors. - It is held that "Limitation Act 1963 : Sec.5 - Condonation of delay - a liberal approach should be taken regarding delay in appeals filed by the State. Delay - a court of appeal should not ordinarily interfere with the discretion exercised by the Courts below."
2017 (4) KCCR 3186 Bandeepa Vs Gundamma & Anr.
"Limitation Act, 1963 - Sec.5 - Condonation of delay - Delay of 501 days in filing Appeal - Delay due to non intimation of disposal of suit by Advocate for the appellant - Held, the said cause or reason given by the appellant to the effect that the belated filing of the appeal was on account of the non intimation of the disposal of the suit by his trial court Advocate is a 25 Com.O.S.No.962/2023 sufficient cause that he did not require any corroboration from the very Advocate on whom negligence has been cast by the appellant herein. In the absence of any rebutal evidence by the respondents, the first appellate court ought to have accepted the reason given by the appellant and held that there was sufficient cause to condone the delay, without insisting upon corroboration of appellant's evidence. - Delay was condoned - Lower Appellate Court was directed to consider the appeal on merits."
42. He has also relied upon a decision in Suo Motu W.P.(C) No.3/2020 saying that the suit of the plaintiff is not barred by law of limitation, as the defence taken by the other side.
43. After going through the plaint averments, the transactions between the plaintiff company and the defendant firm commenced for the year 2015. There were several transactions between the parties. The defendant firm has paid Rs.3.00 lakhs on Three occasions of Rs.1.00 lakh each on 18.01.2019, 15.02.2019 and 14.03.2019 by way of cheques. The PIM application No.2218/2022 was instituted on 22.09.2022 and Two months and Seven days time taken by the DLSA, Bengaluru Urban. Non starter report has been issued as per Ex.P26 dated 29.11.2022. The plaintiff company has filed this suit on 30.08.2023. After perusing the cause of action, it is from the date of legal notice dated 18.05.2022 and replied by the other side on 17.06.2022 and from the date of PIM application and non starter report on 29.11.2022.
26 Com.O.S.No.962/202344. The defendant has not admitted the claim made by the plaintiff company saying that there is no due and keys are handed over. The plaintiff has filed PIM application as per Ex.P26 on 22.09.2022 and non starter report has been issued on 29.11.2022. The time consumed for PIM is to be excluded. The PIM was not filed within the limitation. Almost 67 days consumed for PIM. The suit is filed on 30.08.2023. I have gone through the decisions relied upon by the learned counsel for the plaintiff. The principles laid down in these decisions are well founded. This is a suit filed by the plaintiff. The defence raised by the defendant regarding delay. The earlier Two decisions referred above are not come to the aid of the plaintiff in the case on hand, since they are regarding appeals.
45. I have gone through the decision in Regular First Appeal No.1628 of 2018 on the file of Hon'ble High Court of Karnataka in between M/s Tafe Access Limited Vs M/s S-Mac Security Service Pvt. Ltd., wherein it is held that 'It is well settled law that the period of limitation cannot stand extended merely on account of issuance of legal notice to the defendant. Once the right to sue has accrued, limitation to file a suit cannot be extended by sending reminders or other communications. If said proposition is accepted, then limitation to file the suit will never end and will be extended by sending repeated demand notice'. Therefore, the say of the plaintiff is not helpful to the case on hand. This decision is aptly applicable to the suit on hand. The learned counsel for the plaintiff also filed a memo along with the particulars of telephonic conversation / call history with the 27 Com.O.S.No.962/2023 defendant on 19.11.2019, 17.11.2019, 13.11.2019, 09.11.2019, 24.01.2021, 10.02.2021, 09.02.2021, 09.12.2020, 25.08.2020, 30.11.2021, 26.11.2021, 26.08.2021, 24.08.2021, 23.08.2021, 24.06.2021, 20.05.2022, 20.04.2022 (Three times) on 09.02.2022. After going through these particulars, the outgoing phone numbers are 08088518440, 09449190009. He has further submitted that the DW1 had requested several times sought time to repay the amount.
46. The PW2 is recalled on 24.04.2024 and he has produced additional documents referred above at Ex.P39 to P45. In his further evidence, he has deposed that he had a Cell phone No.99016 73388 and now he is using Cell No.7026070261. He is also having another Cell No.8123728548. In Ex.P40 Two mobile numbers belong to Banana Basavaraj are forthcoming, they are 8088518440 and 9449190009. In the year 2019, the due from the defendant was Rs.13.00 lakhs and out of the said amount he has paid Rs.3.00 lakhs. He does not know regarding Ex.D1 and the seal and signature found on Ex.D1 not belonged to him. Ex.D1 is not issued by the defendant firm. The said Banana Basavaraj used to come to the plaintiff's firm. The PW2 was looking after Dabaspet Branch. The Ex.P39 is the True-caller list for conversation between defendant and himself.
47. In the cross examination, it is forthcoming that he was residing in the address mentioned in Ex.P40 i.e. Certificate filed U/Sec.65B of the Evidence Act on 07.03.2024. The address mentioned in his affidavit and the addressed deposed 28 Com.O.S.No.962/2023 on 11.03.2024 as well as the address i.e. C/o Atharva Traders, Sy.No.74, NH-4, Sompura Industrial Area, Somapura Village, Dabaspet, Bengaluru - 562 111, are one and the same. The information mentioned in Ex.P39 taken from his android mobile - Redmi Note 9. But, he has not produced the documents. He called Banana Basavaraj through his Cell phone. He informed his Head office through email regarding visit made by Banana Basavaraj. Email copies have not been produced. But, he can produce the same. In the further cross examination, it is forthcoming that the seal at Ex.P3(b) belongs to Head Office and Ex.P3(g) is the seal belongs to Dabaspet. He had not recorded the calls. No messages were sent to the defendant through Whatsapp or text regarding dues. But, they visited personally.
48. Even considering the evidence of PW2, who is recalled and also after perusing the documents at Ex.P39 to P45 including the report regarding True-caller / conversation over telephone, it is not helpful to the case of the plaintiff company. There is no cogent proof regarding admitting the balance amount as sought in the plaint by the defendant or DW1.
49. I have gone through a decision held in ARB.P.427/2024 and IA No.7295/2024 in G4S Secure Solutions (India) Pvt. Ltd. Vs Matrix Cellular (International) Services Ltd. on 02.04.2024. It is held regarding the point of limitation and also relied upon a decision given by the Hon'ble Apex Court in M/s Arif Azim Co. Ltd. Vs Aptech Ltd. (2024) INSC 155 -
29 Com.O.S.No.962/2023"84. The effect of the above-referred order of this Court in the facts of the present case is that the balance limitation left on 15.03.2020 would become available w.e.f. 01.03.2022. The balance period of limitation remaining on 15.03.2020 can be calculated by computing the number of days between 15.03.2020 and 27.03.2021, which is the day when the limitation period would have come to an end under ordinary circumstances. The balance period thus comes to 1 year 13 days. This period of 1 year 13 days becomes available to the petitioner from 01.03.2022, thereby meaning that the limitation period available to the petitioner for invoking arbitration proceedings would have come to an end on 13.03.2023."
50. Therefore, by taking into consideration of all these facts and circumstances of the case, the suit of the plaintiff is barred by law of limitation. The plaintiff is not available with the benefit of pandemic Covid-19. Admittedly, the last transaction by way of cheque was on 14.03.2019, the suit ought to be filed on 13.03.2022. Extension of limitation was lifted on 28.02.2022 and it was free for the litigants to file their suit, appeal from 01.03.2022 by availing extended limitation period during Covid-19. But, admittedly, the plaintiff has filed this suit on 30.08.2023. Even after exclusion of time taken for PIM proceedings as stated supra, the suit of the plaintiff is barred by law of limitation. Accordingly, I answer the Issue No.4 in the affirmative.
51. Issue No.5: The plaintiff company sought the aforesaid reliefs. Though the plaintiff has succeeded in proving the Issue Nos.1 and 2, since the suit of the plaintiff company is barred by limitation. Therefore, the plaintiff company is not entitled for any 30 Com.O.S.No.962/2023 reliefs. Therefore, this Issue No.5 does not survive for consideration.
52. Issue No.6: In the result, I pass the following :
ORDER Suit of the plaintiff is hereby dismissed.
Draw decree accordingly.
Issue copy of the judgment to the parties through email as provided U/Or. XX Rule 1 of CPC if email ID is furnished.
(Dictated to the Stenographer, typed by her directly on the computer, corrected and then pronounced by me in the open court on this the 6th day of July 2024) (RAMAKANT CHAVAN) LXXXIV Addl. City Civil & Sessions Judge, (CCH-85) Commercial Court, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
PW1 H.R.Mohan Kumar
PW2 Dinesh
PW3 Sridhara L.
List of documents marked for the plaintiff:
Ex.P.1 Copy of certificate of registration dated 31.03.2016
Ex.P.2 Copy of Board Resolution dated 19.09.2022
31 Com.O.S.No.962/2023
Ex.P.3 Copy of the Consent Deed undated
Ex.P.4 to
Copies of invoices of different dates
P11
Ex.P.12 Attested copies of account balance carry forward to P16 statements Copy of the balance outstanding statement as on Ex.P.17 31.03.2019 Ex.P.18 O/c of the legal notice dated 18.05.2022 Ex.P.19 Postal receipt Ex.P.20 RPAD Ex.P.21 Reply dated 17.06.2022 Ex.P.22 Reply dated 04.07.2022 Ex.P.23 Office copy of legal notice dated 28.06.2022 Ex.P.24 Postal receipt Ex.P.25 Copy of the order sheet in PIM No.2218/2022 Ex.P.26 PIM report Ex.P.27 Copy of the bank statement Ex.P.28 Canara bank statement from 01.04.2016 to 31.03.2017 Ex.P.29 Canara bank statement from 01.04.2017 to 31.03.2018 Ex.P.30 Canara bank statement from 01.04.2018 to 31.03.2019 Ex.P.31 Axis bank statement from 01.02.2018 to 30.04.2019 Ex.P.32 Ledger account from 01.04.2016 to 31.03.2017 Ex.P.33 Ledger account from 01.04.2017 to 30.04.2018 Ex.P.34 LLP Form No.15 Ex.P.35 UDYAM Registration Certificate 32 Com.O.S.No.962/2023 Ex.P.36 Copy of GST Registration Certificate Ex.P.37 Unserved RPAD Cover Ex.P.38 Application before DLSA Ex.P.39 List of Truecaller Ex.P.40 Certificate U/Sec.65B of the Evidence Act Ex.P.41 True copy of the ID card of PW2 Ex.P.42 True copy of the Aadhar Card of PW2 Ex.P.43 Salary slip of PW2 Ex.P.44 Letter dated 25.05.2024 Ex.P.45 Certificate U/Sec.65B of the Evidence Act List of witnesses examined for the defendant:
DW1 Basavaraju K.N.
DW2 Manjunath G.
List of documents marked for the defendant:
Ex.D1 Letter dated 04.03.2016
Ex.D2 Goods and Services Tax Registration Form
(RAMAKANT CHAVAN)
LXXXIV Addl. City Civil & Sessions Judge,
(CCH-85) Commercial Court, Bengaluru.