Bangalore District Court
Dairy Classic Ice Creams Pvt. Ltd vs Jotheshwari J.A on 4 April, 2022
IN THE COURT OF THE LXXXIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AT BENGALURU CITY [CCH-84]
:Present:
Ravindra Hegde,
M.A., LL.M.,
LXXXIII Addl. City Civil & Sessions Judge,
Bengaluru
Dated on this the 4th of April 2022
COM.O.S.No.07/2020
Plaintiff Dairy Classic Ice Creams Pvt. Ltd.,
A private limited company incorporated
and having its registered office
at No.55, 8th Main,
J.C.Industrial Estate, Yelachenahalli,
Kanakapura Road,
Bengaluru-560062.
Represented by its
authorized signatory Sri.Myluswamy C
(By Sri.D.K, Advocate)
// versus //
Defendant Jotheshwari J.A
Proprietor
Lahari Enterprises,
No.18, Lakshmi Nivas,
Pritchard Road, Near Jamia Masjid,
Robertsonpet, KGF-563122,
Kolar District, Karnataka.
(Exparte)
[
Date of Institution of the : 02/01/2020
suit
Nature of the suit : Recovery of Money
2
CT 1390_Com.O.S.07-2020_Judgment.doc
Date of commencement of : 29/3/2022
recording of the evidence
Date on which the : 04/04/2022
Judgment was pronounced.
: Year Month/ Day/s
Total duration /s s
02 03 02
JUDGMENT
This suit is filed by the plaintiff praying to direct the defendant to pay Rs.6,21,599/- with interest @6% per annum till full realization and also praying to direct the defendant to return of 11 door TDU Freezer worth Rs.2,65,000/- and to return chest freezer of 825 litres capacity worth Rs.35,000/- to the plaintiff.
2. The case of plaintiff in brief is as under:
The plaintiff is well known name in the manufacturing and selling of Ice Cream and Frozen Desserts in Karnataka and neighbouring states. The defendant was appointed as distributor. The business relationship between the plaintiff and defendant were cordial till March 2019. In the transaction had between the parties there is outstanding amount of Rs.5,94,832/-, pertaining to 3 invoices mentioned in the application. The defendant had also taken 11 door TDU Freezer worth Rs.2,65,000/- and one of chest freezer of 825 litres capacity worth Rs.35,000/- for the business purpose from the plaintiff and this also is to be returned by the defendant. The defendant gave a letter expressing her 3 CT 1390_Com.O.S.07-2020_Judgment.doc difficulty in making payment on 8/1/2019. Though the plaintiff requested the defendant to make payment and also return the Freezer, defendant avoided the same and a legal notice sent to the defendant also returned as refused. Though the plaintiff is entitled to charge interest @24% per annum, plaintiff has charged interest and restricted the claim only to 6% interest and by adding interest from 1/4/2019 to 31/12/2019. The total amount comes to Rs.6,21,599/- which includes outstanding amount of Rs.5,94,832/- and interest of Rs.26,767/-. For recovery of this amount, plaintiff has filed this suit.
3. The summons sent to the defendant is returned as addressee left. Thereafter, inspite of paper publication the defendant has not appeared and is placed exparte.
4. Now the points that arise for my consideration are:
1. Whether the plaintiff is entitle for recovery of the suit claim amount with interest as prayed?
2. Whether the plaintiff is entitle for return of the two freezers from the defendant?
3. What decree or order?
5. In support of the plaintiff's case PW.1 is examined. Ex.P.1 to Ex.P.12 documents are marked.
6. Heard arguments. Perused records.
7. My answer to the above points are :
Point No.1 : In the affirmative.
Point No.2 : In the affirmative.
Point No.3 : As per final order for the following:
4
CT 1390_Com.O.S.07-2020_Judgment.doc REASONS
8. Points No.1 & 2 : Since these two points are interlinked with each other, they are taken together for discussion, to avoid repetition.
9. The case of the plaintiff is that the defendant was a distributor to the plaintiff and was purchasing the Ice Cream and Frozen Desserts from the plaintiff for its business. In the business of the defendant, the plaintiff had also supplied one number of 11 door TDU Freezer worth Rs.2,65,000/- and had chest freezer of 825 litres capacity worth Rs.35,000/-. According to the plaintiff, the defendant has kept due of Rs.5,94,832/- in her transaction with the plaintiff and by adding interest of 6% the outstanding amount comes to Rs.6,21,599/-. Since this amount is not paid by the defendant and even the freezers are not returned, inspite of notice, plaintiff has filed this suit. The defendant inspite of paper publication has not appeared and is placed exparte.
10. Account Manager of the plaintiff has given evidence as PW.1 and has stated the plaint averments in his chief evidence. Plaintiff has produced 3 invoices showing the goods supplied by the plaintiff to the defendant as Ex.P.2 to Ex.P.4. These invoices contains the seal of the defendant also. A tax invoice in respect of 2 Freezers is produced as Ex.P.5. The letter of defendant seeking demand for payment dated 8/1/2019 is produced as Ex.P.6. Copy of legal notice and the unserved postal cover showing that the notice was refused by the defendant are produced as Ex.P.7 to Ex.P.9. Copy of 5 CT 1390_Com.O.S.07-2020_Judgment.doc ledger account is marked as Ex.P.10 and statement of account is marked as Ex.P.11. The paper publication given in this case is marked as Ex.P.12.
11. On going through the uncontested evidence of PW.1 and the documents produced and also uncontroverted pleadings, plaintiff is successful in proving the transaction of the defendant with the plaintiff and that Rs.5,94,832/- was due from the defendant in this transaction. The defendant as per Ex.P.6 on 8/1/2019 has prayed time to make payment of the outstanding amount, but is said to have not made the payment. Even subsequent to this letter the defendant had the transaction with the plaintiff as per Ex.P.3. By producing Ex.P.2 to Ex.P.4 and Ex.P.6 and the statement of account and ledger extract Ex.P.10 and Ex.P.11 the plaintiff proved the transaction with the defendant and also the outstanding balance of Rs.5,94,832/- from the defendant. On this amount, plaintiff has calculated interest at 6% per annum, which is very reasonable and thereby total amount is arrived at Rs.6,21,599/-. In the absence of any contrary evidence by the defendant, plaintiff is entitle for recovery of this amount from the defendant. Though the defendant is doing business in Kolar, the plaintiff is doing its business in Bengaluru and the invoices are issued from Bengaluru and part of the cause of action has arisen within the jurisdiction of this court and there is no bar of jurisdiction to try the present suit.
12. The plaintiff has contended that one 11 door TDU Freezer worth Rs.2,65,000/- and another chest freezer of 825 6 CT 1390_Com.O.S.07-2020_Judgment.doc litres capacity worth Rs.35,000/- were also given to the defendant for the purpose of doing business. In respect of 825 liters capacity of freezer, plaintiff has also produced a tax invoice as per Ex.P.5 in which there is reference to two chest freezers. Since the defendant has stoped transaction with the plaintiff and for its business the defendant had taken these freezers to keep the Ice Cream and Desserts, the defendant is bound to return the same. Even though the plaintiff has mentioned the value of these freezers in the plaint, as per the tax invoice Ex.P.5, value of two freezers is Rs.77,824/- and not as mentioned in the plaint. However Ex.P.5 is owned by the defendant which show that these freezers are taken by the defendant, the defendant has not appeared and denied the contention of the plaintiff about these freezers. Therefore the plaintiff is entitle for return of this freezers also. Accordingly, points No.1 and 2 are answered in the affirmative.
13. POINT No.3 : For the discussion made on above points, following order is passed:
ORDER Suit of the plaintiff is decreed with costs. The defendant is liable and is directed to pay Rs.6,21,599/- to the plaintiff with interest @6% per annum from the date of suit till realization of the entire amount.
The defendant is also directed to return one 11 door TDU Freezer and chest freezer of 7 CT 1390_Com.O.S.07-2020_Judgment.doc 825 litres capacity taken by the defendant from the plaintiff within two months.
Draw decree accordingly.
[Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in the Open Court on this the 4th day of April 2022] [Ravindra Hegde] LXXXIII Additional City Civil Judge.
BENGALURU.
ANNEXURE
1. List of witnesses examined on behalf of Plaintiff:
PW.1 Myluswamy
2. List of witnesses examined on behalf of Defendant:
DW.1 Nil
3. List of documents marked on behalf of Plaintiff:
Ex.P.1 : Copy of Board rsolution.
Ex.P.2to4 : 3 Invoices.
Ex.P.5 : Tax Invoice.
Ex.P.6 : Letter to defendant.
Ex.P.7 : Copy of Legal Notice.
Ex.P.8 : Postal Receipt.
Ex.P.9 : Unserved postal cover.
Ex.P.10 : Copy of ledger account.
Ex.P.11 : Statement of account.
Ex.P.12 : Paper publication.
4. List of documents marked on behalf of Defendant:
Nil [Ravindra Hegde] LXXXIII Additional City Civil Judge.
BENGALURU.
*** 8 CT 1390_Com.O.S.07-2020_Judgment.doc