Bangalore District Court
Sai Advertisers vs Indo Asian Academic Education Trust on 21 February, 2022
KABC010262442015
IN THE COURT OF THE LXII ADDL.CITY CIVIL AND SESSIONS
JUDGE (CCH-63) BENGALURU CITY
Dated this the 21st day of February, 2022
:PRESENT:
Sri R. ONKARAPPA, B.Sc., LL.B.,
LXII Addl. City Civil and Sessions Judge,
Bengaluru city.
O.S.NO: 9412/2015
PLAINTIFF : Sai Advertisers,
authorized signatory
Sri. G. Ravindra Reddy,
Having office at No. 74/75,
Sai Sushma Arcade,
Patel Kempaiah Layout,
1st Main, II Cross,
Chokkasandara, Peenya,
Bengaluru-560 058.
(By Shanmugam Yadav M, Advocate)
/Vs/
DEFENDANT : Indo Asian Academic Education Trust,
Rep. By its Professor,
Sri. T. Ekambaram Naidu,
Founder Chairman and
Managing Trustee,
2 O.S. No: 9412/2015
No. 10, 4th 'D' Main,
HRBR Layout, II Block,
Kalyan Nagara,
Bengaluru-560 043
Opponent/Defendant.
(By Smt. Rajamani, advocate)
Date of institution of the suit : 18.11.2015
Nature of the suit : Money Suit
Date of commencement of : 24.09.2018
recording of the evidence
Date on which the Judgment : 21.02.2022
pronounced.
: Year/s Month/s Day/s
Total duration
06 03 02
(R. ONKARAPPA)
LXII Addl. City Civil and Sessions Judge,
(CCH63), Bengaluru City.
JUDGMENT
The suit has filed by the Plaintiff for recovery of Rs.5,62,493/- (Rupees Five Lakhs Sixty Two Thousand Four Hundred and Ninety Three Only) from the Defendant together with current and future interest at 10% per annum from the date of suit till the date of realization of entire amount.
3 O.S. No: 9412/20152. Brief facts of case of the plaintiff is that, the defendant has hired 50 buses for three months contract @ Rs. 6,500/- per bus per month, in all it comes to a sum of Rs. 9,75,000/-. Out of which, the defendant has paid advance amount of Rs. 4,85,875/-. Further, it was agreed that, the defendant would pay the balance amount of Rs. 4,89,125/-. That the defendant had hired 50 buses for a period of Three months commencing from 1st March 2014. Further, the plaintiff stated that, the plaintiff was eagerly waiting that the defendant would honour the promise of paying the balance amount within reasonable time. Even though the plaintiff has waited till the end of 2014, there was no whisper or any communication from the defendant's side either regarding payment or regarding the explanation as to when the defendant would like to settle the accounts of the plaintiff. However, the plaintiff being frustrated with the negligent and reckless attitude of the defendant, of a spirited businessmen was forced to contact the defendant many a times, but all are went in vain. The defendant has issued the cheque bearing No. 000276, dated 06.03.2014, drawn on Andhra Bank, Kalyana Nagara, Bengaluru, for a sum of Rs. 1,60,875/-, out of remaining balance payment of rs. 4,89,125/-. That the cheque referred to above was dishonoured and the defendant has not paid the said sum of Rs. 1,60,875/- till today. The defendant's act of payment of cheque during the month of March 2014 and which was dishonored and the same was intimated to the defendant also. The plaintiff states that, the 4 O.S. No: 9412/2015 defendant's attitude of delay in tactics, in paying the balance amount has pained the plaintiff. That the plaintiff has never seen a customer like the defendant who has no mutual respect with the other businessmen. Further, whenever the plaintiff approached the defendant, the defendant has postponed the payment of one pretext or the other. Further, as per the advise of the defendant, the plaintiff has not initiated criminal proceedings against the defendant for dishonouring of cheque. That the plaintiff being fed up by the escaping behavior of the defendant, ultimately forced to issue the Legal Notice to the defendant for recovery of Rs. 4,89,125/- along with interest at 10% per annum. The plaintiff got issued legal notice on 27.04.2015 through his counsel and the same was sent through RPAD and the said legal notice was duly served upon the defendant. And after service of the said legal notice, the defendant neither replied nor comply the demands made by the plaintiff. That believing the words of the defendant, the plaintiff has accepted the cheque and he has presented the same in accordance with law as per the instructions and assurances given by the defendant about the dishonour of the said cheque. But the said cheque was returned with dishonour and the defendant has failed to keep up his commitment with the plaintiff. The defendant failed to repay the amount received from the plaintiff. The plaintiff being aggrieved and left with no other option to file the present suit for recovery of the same along with other expenses incurred by him. Accordingly the defendant is liable to pay a) the principle amount of rs. 4,89,125/-, b) interest @ 10% 5 O.S. No: 9412/2015 per annum from 06.03.2014 to 10.09.2015 Rs. 73,368/- c) Legal notice charges Rs. 5,000/-. The cause of action for the suit has arisen on 06.03.2014 when the defendant got issued a cheque and on March 2014 when the cheque was dishonoured and on 27.04.2015 when the plaintiff got issued legal notice to the defendant and on subsequent dates thereto within the territorial limits of this Court. Hence, the plaintiff prays for decree the suit.
3. After admitting of the suit, upon suit summons the defendant appeared through their counsel and he filed written statement. In their written statement he contended that suit of the plaintiff is not maintainable either in the law or in the fact. The plaintiff concealed several facts and he filed a suit with bundle of lies. The defendant not commented upon the facts contended in Para Nos.1 and 2 of the plaint. The facts which are contended in Para No.3 and 4 that the defendant hired the 50 BMTC Buses for three months contract Rs.6,500/- per bus per month, in all it comes to a sum of Rs.9,75,000/-. Out of which the defendant paid advance amount of Rs.4,85,875/-. And for the remaining the defendant agreed that he would pay the same in future are all true and correct. But, the defendant denied that there is no liability upon the defendant to pay a sum of Rs.4,89,125/-. Contents which are tendered in Para Nos.6 and 7 of the plaint denied as false and called to the strict proof of the same. That the contents contended in Para No.8 of the plaint that, the plaintiff being fed up by the escaping behavior of the defendant, ultimately forced to 6 O.S. No: 9412/2015 issue the legal notice to the defendant for recovery of Rs.4,89,125/- along with interest @ 10% p.a. The plaintiff got issued legal notice on 27.04.2015 through his counsel and the same was sent through RPAD and the said legal notice was duly served upon the defendant and after service of the said legal notice, the defendant neither replied nor comply the demands made by the plaintiff are all false and story of concocted. Contents available on Para No.9, 10 and 11 of the Plaint are denied as false. It is net case of defendant that, the plaintiff undertaken the college publishing work, it is his duty to submit the documents to the institution with regard to the day first advertisement is put up. A picture taken of all the buses with their registration plate and advertisement. In the same manner they have to send an update every week advertisement till the end of the contract. It is also a duty that after submitting the documentary proof they have to collect a copy of the acknowledgment, but none of the work done by them, it clearly shows that after receiving such a huge amount of Rs.4,85,849/- they have kept quiet without doing any contract work. Now they have filed the above case for rest of the contractual amount. On what basis they have filed the case, as they have not done any kind of work. Therefore, the defendant prays for dismissal of the suit with costs.
4. Heard arguments on side of the plaintiff. Counsel for the defendant filed written argument. In support to the case of the 7 O.S. No: 9412/2015 defendant, the learned counsel for the defendant relied on the judgments reported in;
1. 2019 (5) KCCR 1555 SC
2. AIR 2021 Delhi 511
3. Concept of E-evidence
5. Perused the records. Based on the pleadings,followed as many as four issues have been framed , they are;
ISSUES (1) Whether the plaintiff proves that, the defendant hired 50 buses from the plaintiff for a period of 3 months commencing from 1st March 2014 and towards said bus hire, the defendant owes balance amount of Rs.4,89,125/- to the plaintiff?
(2) Whether the Plaintiff proves that, the defendant has issued a Cheque bearing No.000276 dated 6.3.2014 drawn on Andrha Bank, Kalyana Nagara, Bengaluru for a sum of Rs.1,60,875/-, out of the remaining balance payment of Rs.4,89,125/- and it was dishonoured?
(3) Whether the plaintiff is entitled for the relief claimed?
(4) What order or Decree?
6. My finding on the above points are as under:
Issue No.1 to 3 - In the Affirmative Issue No.4 - as per the order for the following :
8 O.S. No: 9412/2015REASONS
10. Issues No.1 to 3 :- Since the issue Nos. 1 to 3 are interconnected with each other, they are taken together for common discussion to avoid repetition of the facts.
11. In order to prove the case of the plaintiff, its proprietor by name S. M. Rafee S/o Late S.M.K. Basha examined himself as PW1 and got marked documents as Ex.P1 to Ex.P12. The P.W.1 in lieu of examination in chief he filed an affidavit. In his affidavit he reiterated the averments made in the plaint that, the defendant has hired 50 buses for three months contract @ Rs. 6,500/- per bus per month, in all it comes to a sum of Rs. 9,75,000/-. Out of which, the defendant has paid advance amount of rs. 4,85,875/-. Further, it was agreed that, the defendant would pay the balance amount of Rs. 4,89,125/-. That the defendant had hired 50 buses for a period of Three months commencing from 1st March 2014. Further, the plaintiff stated that, the plaintiff was eagerly waiting that the defendant would honour the promise of paying the balance amount within reasonable time. Even though the plaintiff has waited till the end of 2014, there was no whisper or any communication from the defendant's side either regarding payment or regarding the explanation as to when the defendant would like to settle the accounts of the plaintiff. However, the plaintiff being frustrated with the negligent and reckless attitude of the defendant, of a spirited businessmen was forced to contact the defendant many a times, but all are went in vain. The defendant has issued a 9 O.S. No: 9412/2015 cheque bearing No. 000276, dated 06.03.2014, drawn on Andhra Bank, Kalyana Nagara, Bengaluru, for a sum of Rs. 1,60,875/-, out of remaining balance payment of Rs. 4,89,125/-. That the cheque referred to above was dishonoured and the defendant has not paid the said sum of Rs. 1,60,875/- till today. The defendant's act of payment of cheque during the month of March 2014 and which was dishonoured and the same was intimated to the defendant also. The plaintiff states that, the defendant's attitude of delay in tactics, in paying the balance amount has pained the plaintiff. That the plaintiff has never seen a customer like the defendant who has no mutual respect with the other businessmen. Further, whenever the plaintiff approached the defendant, the defendant has postponed the payment of one pretext or the other. Further, as per the advise of the defendant, the plaintiff has not initiated criminal proceedings against the defendant for dishonouring of cheque. That the plaintiff being fed up by the escaping behavior of the defendant, ultimately forced to issue the Legal Notice to the defendant for recovery of Rs. 4,89,125/- along with interest at 10% per annum. The plaintiff got issued legal notice on 27.04.2015 through his counsel and the same was sent through RPAD and the said legal notice was duly served upon the defendant. And after service of the said legal notice, the defendant neither replied nor comply the demands made by the plaintiff. That believing the words of the defendant, the plaintiff has accepted the cheque and he has presented the same in accordance with law as per the instructions and assurances given by the defendant about the 10 O.S. No: 9412/2015 dishonour of the said cheque. But the said cheque was returned with dishonour and the defendant has failed to keep up his commitment with the plaintiff. The defendant failed to repay the amount received from the plaintiff. The plaintiff being aggrieved and left with no other option to file the present suit for recovery of the same along with other expenses incurred by him. Accordingly the defendant is liable to pay a) the principle amount of rs. 4,89,125/-, b) interest @ 10% per annum from 06.03.2014 to 10.09.2015 Rs. 73,368/- c) Legal notice charges Rs. 5,000/-. The cause of action for the suit has arisen on 06.03.2014 when the defendant got issued a cheque and on March 2014 when the cheque was dishonoured and on 27.04.2015 when the plaintiff got issued legal notice to the defendant and on subsequent dates thereto within the territorial limits of this Court.
12. Further, In order to establish the case against to the defendant, the PW1 also got marked Ex.P1 to Ex.P12. Ex.P1 is the Special Power of attorney dated 20.08.2018. Ex.P2 is the purchase order dated 29.02.2015. As per Ex.P2 the defendant have purchased the order for advertising the name of the defendant school at BMTC full bus branding dated 29.01.2014. The same Ex.P2 bear its own condition. After go through Ex.P2 one can finds the signature of the founder Chairman/Managing Trustee of defendant School. The same signature and seal available on Ex.P2 have not disputed by the defendant. With that respect the defendant have not even made any single suggestion 11 O.S. No: 9412/2015 to P.W.1, that the signature and the seal available on Ex.P2 not belonged to the Defendant. Ex.P3 is credit Bill. As per Ex.P3 plaintiff issued cash credit bill in favour of the defendant. As per Ex.P3 the plaintiff and the defendant have agreed their contract to a tune of Rs. 9,75,000/-. After go through Ex.P3 Cash/credit bill one can finds the signature and seal of the founder Chairman- Managing trustee of the defendant. The defendant have not much disputed trustee of the signature and seal of the defendant
-school. With that respect the defendant have not made any single suggestion to the P.W.1 that the signature of the trustee and seal of the defendant -school not belonged to the defendant. Ex.P4 is cheque stated to be issued by the defendant to the plaintiff to the tune of Rs.1,60,875/-. Ex.P5 is the banker receipt issued by the Banker. As per Ex.P5, Ex.P4 cheque returned as dishnoured. After go through Ex.P4 cheque one can finds the signature of the trustee of the Defendant available on Ex.P4 cheque. The defendant have not much disputed that the Ex.P4 cheque not belonged to the defendant-school and signature available on Ex.P4 cheque not belonged to the trustee of the defendant -school. Ex.P6 is the legal notice dated 29.04.2015 issued by the plaintiff to the defendant. As per Ex.P6, that the plaintiff have demand at before the defendant outstanding balance amount of Rs. 4,89,125/-. Ex.P7 is postal receipt. Ex.P8 is postal acknowledgment. Servicing of legal notice as per Ex.P6 have also not much disputed by the Defendant. Ex.P9 is one of the CD. As per case of the plaintiff, the plaintiff have under take to advertise 12 O.S. No: 9412/2015 the school name of the defendant upon 50 buses. Ex.P10 is the Trip slip. As per Ex.P10 the plaintiff have put an advertisement the school name of the defendant upon 50 buses. Ex.P11 is the ledger account belonged to the defendant school. Ex.P11(a) is also one ledger account belonged to the defendant school. When go through Ex.P11(a), Ex.P11(a) speaks that "BMTC bus branding done @ Bangalore 50 NOS X 6500/- X 3 months". Further Ex.P11(a) also speaks total contractual amount between the parties. Ex.P12 is the booklet which bears the multiple photographs of various BMTC buses, as the same buses bears the advertisement of school name of the defendant. Even inspite of lengthy cross examination by the defendant, the defendant have not established any probable case of the defendant either by direct admissions or by suggestions which infers the case of the defendant. As such oral evidence of the plaintiff stands affirmed.
13. On the contrary on behalf of the defendant, its Chairman Prof. T. Ekambram Naidu executed power of attorney in favour of Mr. Supriyo Guharoy, CEO of the defendant school, who he examined as DW1 at before the Court. In lieu of examination in chief he filed an affidavit, wherein he reiterated all averments available on written statement. To establish the case of the defendant, the DW1 have not chosen to mark any documents in his favour.
13 O.S. No: 9412/201514. After analyzing the dispute between the parties, that it is necessary to record the facts which are admitted. The defendant have not deny the professional occupation of the plaintiff, agreement between the plaintiff and the defendant. Contents of Ex.P.2 - Purchase Order , contents of Cash Invoice as per Ex.P.3. Further, defendant have also not much disputed branding the name of the defendant school upon the BMTC Buses and with respect to that, he agreed the amount of Rs.9,75,000/- as per Ex.P.3 - Cash Invoice and defendant have also not much disputed that he has already paid an amount of Rs.4,85,875/- to the plaintiff as an advance amount against the contract. But, specific defence of the defendant herein that, it is the duty of the plaintiff to submit the document to the institution with regard to day first advertisement is put up. A picture taken of all the buses with their registration plate and the advertisement. In the same manner they have to send an update every week advertisement till the end of contract. To over come the defence of the defendant the plaintiff, have got marked the Ex.P.10 trip slip in his favour. Perused the Ex.P.10, EX.P10 bears the cause title of "Indo-Asian" Bus Branding. After going through Ex.P.10 one can find different registration number of BMTC buses belonged to different depot. Further, to establish the case of the plaintiff that he continuously branded the school name of the defendant upon the BMTC Bus and to show that the plaintiff perform his part of contract regularly, PW.1 have also got marked Ex.P.12. Ex.P.12 is one of the booklet which bears multiple photographs. When go through the EX.P12 14 O.S. No: 9412/2015 one can finds that the plaintiff branded the school name of the defendant, in various buses belonged to the different depot of BMTC. EX.P.11 and Ex.P11(a), also speak that the defendant agreed with the plaintiff for the contract and the defendant have due for the amount of Rs. 4,89,125/- to the plaintiff. As the same photographs bears the branding the name of plaintiff school. Against to Ex.P.12 and Ex.P.10, it is specific case of the defendant that, that the plaintiff should have to procure the same document at before the court at earlier stage of filing of the suit and not at a later stage. No doubt, the plaintiff have got marked Ex.P.10, EX.P11, EX.P11(a) and Ex.P.12 only after cross examined the PW.1. Even after got marked Ex.P10, Ex.P11, Ex.P11(a) and Ex.P12 the defendant have also hold the lengthy cross examination upon such Ex.P10 to Ex.P12 document. Even go through the cross examination portion of PW1 nothing material evidence established through PW.1 to impeach the contents of Ex.P.10, Ex.P11, Ex.P11(a) and Ex.P.12, except denial of the suggestion. Further PW.1 directly answer to the question during his cross examination that,EX.P.10 document directly generated from the computer of his office and EX.P12 photos captured from the camer belonged to defendant. On the contrary in an cross examination, DW.1 unequivocally admitted the suggestion that, in accordance with Ex.P.2 that he had entered the contract with the plaintiff on behalf of the defendant. Further, DW.1 also unequivocally admitted the suggestion on 01.03.2014 was the acceptance date of contract between the parties and Company 15 O.S. No: 9412/2015 issued a contract quotation firstly on 03.01.2014. DW.1 also unequivocally admitted the suggestion that Ex.P.4 cheque is also belonging to the defendant school account. From this sort of evidence that here confirm relationship between the parties, transaction between the parties as well as liability of the defendant the parties.
15. As per the contention of the defendant that, the plaintiff should have to intimate his part of contract at before the defendant regularly, i.e. branding the name of defendant school in the BMTC Bus. No doubt, the defendant have not specifically denied that, the plaintiff failed to branded school name of the defendant upon the BMTC Bus. But, net claim of the defendant that, since the plaintiff failed to intimate completion of performance of his part of contract to the defendant, hence according to the defendant, the plaintiff is not entitled for the remaining balance amount of Rs.4,89,125/-. If it is so true and correct another one fact in issue is herein kept open for discussion. It is the specific case of the plaintiff that in towards to balance amount the defendant have issued Ex.P.4 - cheque to the plaintiff dated 06.03.2014. If really the plaintiff was in default to do his part of contract, then why defendant issued the Ex.P.4 - cheque in the name of plaintiff. Further, if the plaintiff failed to perform his part of contract by not doing branding the school name of the defendant in the BMTC Bus, then what sort of remaining work that the plaintiff remained to perform. On the contrary no doubt, PW.1 got marked Ex.P.10 - trip slip. Otherwise branding the school name of the 16 O.S. No: 9412/2015 defendant upon the BMTC bus, then how the plaintiff would get Ex.P.10 documents and to got marked the same in his favour. Further, Ex.P.12 is also categorically established the existence of BMTC Bus, branding the school name of the defendant upon such BMTC Bus, if otherwise the plaintiff not branded the school name of the defendant upon BMTC bus and failed to perform his further part of contract, the same burden shift on the defendant to show what remaining part of contract that the plaintiff was in due. What extent of contract that the plaintiff performed. That such burden may be proved by the the defendant by getting more document from the BMTC authorities, whether the plaintiff branded the school name of the defendant or not, if so branded in how many bus it was branded and how much of the period that the plaintiff branded the school name of the defendant. These are all the crucial facts required to proved by the defendant, the same facts herein note remains as unexplained. But core defence of the defendant that the plaintiff have failed to intimate how much of his part of contract that he has did on which date that he started the branding the name of defendant school upon the BMTC bus. The same are all the facts which are need to vigilant by the defendant and not by the plaintiff. No doubt, law will always helpful to the person who is vigilant in act and not an dormant person. If suppose the plaintiff failed to perform his part of contract as contended by the defendant, and if the defendant once a vigilant to enforce the alleged remaining part of the contract as alleged, the defendant have more option to enforce the same. Even if suppose 17 O.S. No: 9412/2015 the plaintiff again failed to performance of contract upon his demand, the right of compensation against to the plaintiff would open to the defendant under Indian Contract Act for the breach of the contract. As such, above all the facts which are herein above discussed made clear that the defendant in order to overcome his liability that he made the defence without any legal proof. Since fact of the case on hand entirely different with the law held by the Court in the judgment which relied by the defendant. Hence not applicable to the case on hand.
16. The plaintiff claimed the interest of Rs. 73,638/- for the period of 06.03.2014 to 10.09.2015. No doubt case on record no piece of evidence available to substantiated the alleged 10% interest upon the principle amount. Since the plaintiff established his claim against to the defendant in so far alleged principal amount, the amount claimed by the plaintiff as an interest from 06.03.2014 to 10.09.2015 cannot to be over looked, based on that no evidence is available on record to award an interest prior to date of filing of the suit. As the plaintiff successfully established the case against to the defendant for the due principal amount that he also entitled interest upon the principal amount for the period prior to date of filing of the suit.
17. In so far as the further interest is concerned that there is an specific pleading on side of the plaintiff but no document on side of the plaintiff so far how much of interest that the defendant have agreed to paid to the plaintiff, if the defendant once failed to repay the principal loan amount. Admittedly the transaction 18 O.S. No: 9412/2015 between the plaintiff and the defendant is one of commercial transaction. However by considering the relationship between the parties and take note of present rate of interest as per schedule of the Nationalized bank, I am of the view that 9% of interest is the proper, equivalent and reasonable interest. The same 9% interest that the plaintiff herein entitled upon the due principal amount from the date of filing of the suit. Accordingly, I answer the issue Nos. 1 to 3 as affirmative.
18. Issue No. 4 : In view of the above discussion and my finding on Issue No.1 to 3, I proceed to pass the following;
ORDER The suit of the plaintiff is here by decreed with costs for a sum of Rs 5,62,493/-.
That the plaintiff is hereby entitled for the sum of Rs. 5,62,493/- as principal amount along with 9% interest upon the principal amount from the date of filing of the suit to till realization of the amount.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer, computerized by her and then corrected and pronounced by me in open court on this the 21st day of February, 2022).
(R. ONKARAPPA), LXII Addl. City Civil and Sessions Judge (CCH63) Bengaluru City.
19 O.S. No: 9412/2015
ANNEXURE
I. List of witnesses examined on behalf of :
(1) Plaintiff's side :
P.W.1 - S. M. Rafee
(2) Defendant's side :
D.W.1 - Mr. Suprio Guharoy
II. List of documents exhibited on behalf of :
Plaintiff's side :
Ex.P1 - Special Power attorney dated 20.08.2018
Ex.P2 - Purchase order
Ex.P3 - Cash Bill (Invoice)
Ex.P4 - Cheque No. 000276 dated 06.03.2014
Ex.P5 - Bankers memo dated 08.03.2014
Ex.P6 - Legal notice dated 29.04.2015
Ex.P7 - RPAD Postal receipt
Ex.P8 - Postal acknowledgment
Ex.P9 - CD
Ex.P10 - Computerized report
Ex.P11- Balance Sheet ledger Account
Ex.P11(a)- Balance Sheet ledger Account
Ex.P12 - Album containing 50 photographs
Defendant's side : NIL
LXII Addl. City Civil and Sessions Judge
(CCH63), Bengaluru City.