Bangalore District Court
M/S Mpee Kitchenetter Pvt. Ltd vs M/S Chennai Fan House on 1 June, 2019
IN THE COURT OF THE LIX ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE CITY (CCH-60)
Dated this the 1st day of June 2019
PRESENT
************
Sri B. B. Jakati, B.A., LL.B., (Spl.)
LIX ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE CITY
O.S.No.6241/2017
PLAINTIFF: M/S MPee Kitchenetter Pvt. Ltd.,
Having its Register office at No.13,
1st Main Road, Attibele Indl. Area,
Near Gust;ome Hotle,
Bengaluru - 562107.
Rep. by manager/Authorized person,
K.C.Chidanand Appaji Urs,
Aged about 39 years,
Also Office at
No.23, 3rd Floor,
Jinkushal Residency,
Above Mamatha Super Stores,
Govindappa Road, Basavanagudi,
Bengaluru-560004.
(By Sri M.K.Lokesha, Advocate)
V/s.
DEFENDANT: M/S Chennai Fan House,
C/o at CEMA Electricals,
Bharatha vilas Building,
2 O.S.No.6241/2017
4193-A South 4th Street,
Pudukkottai,
Tamil Nadu-622001.
Rep. by it Proprietor
Mr.Selvakumar,
Major in age.
(Respondent. by Sri P.P., Advocate)
Date of institution of the : 11.09.2017
suit
Nature of the suit : Money Suit
Date of commencement of : 15.11.2018
recording of the evidence
Date on which the Judgment : 01.06.2019
was pronounced.
: Year/s Month/s Day/s
Total duration
02 00 00
(B.B. Jakati)
LIX ACC & SJ
B'LORE.
JUDGMENT
The plaintiff company has filed this suit for recovery of a sum of Rs.6,37,295/- along with interest @ 24% per annum from the date of suit till complete realization from the defendant.
3 O.S.No.6241/2017
2. The case of the plaintiff in brief is that, it is an Private Limited Company and engaged in manufacturing and selling Home Appliances like Gas Stove, Utensils, Cooker etc,. The defendant is the customer of the plaintiff, and he was dealing with plaintiff for four years and purchasing the goods on credit basis. The plaintiff maintaining the running account of defendant. The plaintiff company supplied many goods under various invoices to the defendant and as on 10.06.2017 an amount of Rs.6,37,295/- was due from the defendant. Inspite of the demand, the defendant not paid the dues and therefore plaintiff charged interest at the rate of 18% per annum from 10.06.2017 to 10.08.2017, and that interest comes Rs.19,119/-. The plaintiff has spent an amount of Rs.1,000/- for issuing notice to the defendant. On these grounds he claimed principle amount, interest and notice charges from the defendant.
3. The defendant in the Written Statement denied the liability and inter-alia contended that the defendant is partnership firm and there are three partners in the firm. They are M.Selvakumar, Mohammed Kani, M.S. Kani. The suit has been filed only against the Selvakumar showing him 4 O.S.No.6241/2017 has proprietor. Infact the defendant is not proprietorship concern and it is partnership firm. Selvakumar who filed the Written Statement has further stated that he was the sleeping partner of the defendant and he issued notice for dissolution of the firm on 12.07.2016, and the firm has been dissolved on 15.12.2016 and it has been informed to the plaintiff. He has taken the defence that invoices produced by the plaintiff are forged. The suit of the plaintiff is barred by law of limitation and court has no territorial jurisdiction to try the suit. On these main grounds, the defendant prayed to dismiss the suit.
4. On the rival pleadings of the parties, the following issues have been framed:
(1) Whether the plaintiff proves the supply of home appliances worth of Rs.6,37,295/- to the defendant as on 10.06.2017 under running account on credit basis?
(2) Whether the suit is barred by law of limitation?
(3) Whether the court has no territorial jurisdiction to entertain the suit?5 O.S.No.6241/2017
(4) Whether the plaintiff is entitled for interest on price of the goods? If yes, at what rate and from which date?
(5) Whether the plaintiff is entitled for suit claim from defendant, which is proprietorship concern?
(6) Whether Mr.Selvakumar is liable to answer the suit claim?
5. The defendant filed I.A.No.II under Section 191 and 195 of IPC r/w Section 340, 250 and 357 of Cr.P.C. In the application the defendant has stated that the invoices at Sl.No.1 to 6 have been fabricated and invoices at Sl.No.7 to 10 are forged by the plaintiff to get money from the defendant unlawfully. Such fabricated and forged invoices have been produced before the court to receive such documents as evidence in the case and thereby the plaintiff has committed the offences punishable under Section 191 and 195 of IPC. Therefore the contempt proceedings under Section 340 of Cr.P.C. has to be initiated against the plaintiff.
6. The plaintiff filed objections to I.A.No.II denying the allegations made by the defendant. He has 6 O.S.No.6241/2017 asserted that the invoices produced by the plaintiff are genuine and not forged. On these grounds he prayed to reject the application.
7. I.A.No.II was ordered to be heard along with main suit. The plaintiff in order to prove the claim examined its authorized person as P.W.1 and got marked the documents at Ex.P.1 to P.24. The defendant not cross examined the P.W.1 and even not adduced oral or documentary evidence.
8. I have heard the arguments of counsel appearing for the plaintiff. The defendant not canvassed the argument inspite of sufficient opportunity.
9. In order to decide I.A.No.II the only point that arise for my consideration is "Whether the plaintiff has produced fabricated or forged invoices before the court to receive such documents in evidence and thereby committed the offence under Section 191 punishable under Section 193 of IPC".
7 O.S.No.6241/2017
10. Considering the evidence on record, my findings to the above said Issues and the point raised for decision of I.A.No.II are as under:
Issue No.1 : In the Affirmative
Issue No.2 : In the Negative
Issue No.3 : Already decided
Issue No.4 : In the Affirmative
Issue No.5 : In the Affirmative
Issue No.6 : In the Affirmative
Point in I.A.II : In the Negative
for the following:
[[
REASONS
11. ISSUE NO.1 :- The P.W.1 has stated that plaintiff is private limited company and he has been authorized by the board to prosecute the suit. He has produced Resolution of the board at Ex.P.1 which shows plaintiff is private limited company and through resolution P.W.1 was authorized to prosecute the present suit. The evidence of P.W.1 and Ex.P.1 has not been challenged by the defendant. Therefore, I hold that evidence P.W.1 and Ex.P.1 are sufficient to hold that plaintiff is a company and 8 O.S.No.6241/2017 P.W.1 is authorized representative and his evidence is to be accepted.
12. The plaintiff in the cause-title and the P.W.1 in his evidence has specifically stated that defendant is proprietorship concern and Selvakumar is the proprietor of the defendant. The defendant has pleaded that M/S Chennai Fan House is the partnership firm and there are three partners. The plaintiff has produced invoices at Ex.P.2 to P.11 and Ledger extract at Ex.P.12 to show the supply of goods. The plaintiff has produced Lorry receipts at Ex.P.14 to P.24 for having supplied the goods through lorries on various deeds to the defendant. In these records it has been shown that goods were supplied to M/S Chennai Fan House, No.367/2nd Street, Kalaiman complex, Pudukkottai. From these records it is not possible to ascertain whether M/S Chennai Fan House is partnership firm or proprietorship concern. Plaintiff is the supplier and defendant is receiver of the goods. Therefore unless contrary is proved the statement of the plaintiff that M/S Chennai Fan House is proprietorship concern is to be believed. That apart, in the postal acknowledgement at 9 O.S.No.6241/2017 Ex.P.15 there is signature of receiver along with seal. In the seal it has been shown that notice has been received by proprietor of M/S Chennai Fan House. This Ex.P.15 supports the evidence of P.W.1 that M/S Chennai Fan House is proprietorship concern and not partnership firm.
13. The defendant who has disputed the allegation of plaintiff taken the defence that M/S Chennai Fan House is partnership firm is bound to establish such contention. The defendant is having all the records of M/S Chennai Fan House and therefore he is in better position to prove the fact that M/S Chennai Fan House is partnership firm or it is proprietorship concern. Unfortunately the defendant not entered into witness box and even not produced any document to show that M/S Chennai Fan House partnership firm and it has been dissolved with notice to the plaintiff. Therefore adverse inference has to be drawn against the defendant. Considering these evidence on record, I hold that M/S Chennai Fan House is proprietorship concern and Mr.Selvakumar is the proprietor.
10 O.S.No.6241/2017
14. The plaintiff company in order to demonstrate that goods were supplied to the defendant under running account has produced invoices at Ex.P.2 to P.11, statement of running account at Ex.P.12, which are computer outputs. The plaintiff has filed certificate under Section 65B (4) of Indian Evidence Act. Such certificate is not disputed by the defendant. Therefore Exs.P.2 to 12 are received in evidence which are electronic records.
15. In Ex.P.2 to P.11 it has shown that plaintiff company supplies goods by raising invoices on different dates. Such invoices are mentioned in Ex.P.12. The plaintiff has also produced lorry receipts at Ex.P.14 to P.24 for having delivered the goods to the defendant physically. The goods at Ex.P.4 transported under the receipt at Ex.P.24, goods at Ex.P.5 transported under the receipt at Ex.P.17, goods at Ex.P.6 transported under the receipt at Ex.P.16, goods at Ex.P.7 are transported under the receipt at Ex.P.18, goods at Ex.P.8 transported under the receipt at Ex.P.20, goods at Ex.P.10 transported under the receipt at Ex.P.19, goods at Ex.P.11 transported under the receipt at Ex.P.23. The lorry receipts concerning to invoices at 11 O.S.No.6241/2017 Ex.P.2, 3 and 8 are not produced. However the evidence of P.W.1 to the effect that the goods under Ex.P.2 to P.11 have been actually delivered has not been challenged by the defendant. The lorry receipt corroborates invoice. When the defendant has not challenged the oral evidence and the documents referred above, there is nothing on record to disbelieve such evidence. Therefore believing the documents referred above, I hold that plaintiff supplied the goods under Ex.P.2 to P.11 to the defendant under running account on credit basis and as on 10.06.2017 there was due of Rs.6,37,295.
16. ISSUE NO.2: Ex.P.2 to P.11 are the invoices the oldest invoice is dated 18.10.2013 produced at Ex.P.6 and latest invoice is dated 29.09.2014 produced at Ex.P.4. Between 18.10.2013 and 29.03.2014 the goods were supplied to the defendant. All supply of such goods is under running account. Nature of account can be seen from Ex.P.12. The transaction from 01.04.2013 to 31.03.2014, 01.04.2014 to 31.03.2015, 01.04.2015 to 31.03.2016 and 01.04.2016 to 20.07.2017 has been shown in Ex.P.12. For every financial year the account has been bifurcated. The evidence of 12 O.S.No.6241/2017 P.W.1 and Ex.P.12 are sufficient hold that defendant had running account with the plaintiff and purchased the goods on credit.
17. Article 1 of the Limitation Act, 1963 reads as under:
Description of suit Period of Time from which Limitation period begins to run For the balance due on Three The close of the year a mutual, open and years in which the last item current account, where admitted or proved is there have been entered in the reciprocal demands account; such year to between the parties. be computed as in the account.
18. The account maintained by the plaintiff of the defendant is open and current and therefore, Article 1 of the Limitation Act is applicable. According to this Article, the limitation of three years is provided to file a suit for recovery and such period starts on the date of close of the year in which the last item admitted or proved is entered in the account.
19. In the present case the transaction shown in Ex.P.5 to 7 and 9 took place in the year 2013 and the transaction shown in Invoices produced at Ex.P.2 to 4, 8, 10 13 O.S.No.6241/2017 and 11 took place in the year 2014. Therefore, the limitation of three years shown in Article 1 for the invoices at Ex.P.5 to 7 and 9 commences on 01.01.2014 and ends on 31.12.2016. Further, the limitation for the invoices produced in Ex.P.2 to 4, 8, 10 and 11 commences on 01.01.2015 and ends on 31.12.2017. The suit is filed on 11.09.2017. Therefore, the invoices produced at Ex.P.2 to 4, 8, 10 and 11 relating to the year 2014 are covered under three years of limitation prescribed under Article 1. Therefore, the suit in respect of such invoices is well within time prescribed under Article 1 of the Limitation Act, 1963.
20. When the suit was filed, the claim of the plaintiff for recovery of the money shown in Ex.P.5 to 7 and 9 was barred. However, Section 19 of the Limitation Act 1963 comes to the aid of the plaintiff. Section 19 of the Limitation Act provides that "where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorized in this behalf, a fresh period of limitation shall be computed from the time when the payment was made." In order to 14 O.S.No.6241/2017 give benefit of Section 19 of limitation Act, the plaintiff is required to establish that part of the payment on principal or on interest of legacy was made by the defendant before expiry of period relating to invoices at Ex.P.5 to 7 and 9.
21. In order to prove the part payment, the plaintiff has relied upon statement of account at Ex.P.12. The entry dated 20.12.2014 show last payment of Rs.50,000/- by the defendant and it was credited to the account on 23.12.2014. This payment is not denied by the defendant. Such payment was made in running and current account. Such payment was not specific payment to any of the invoices produced by the plaintiff. Therefore, the payment shown in Ex.P.12, more particularly the last payment in December 2014 is to be believed to the payment towards price of the goods shown in invoices referred above. If the last payment dated 20.12.2014 is taken into consideration, then the suit filed on 11.09.2017 would be within three eyars and thus, even the suit of the plaintiffs in respect of invoices in Ex.P.5 to 7 and 9 would be within limitation. Thus, I hold that even the suit of the plaintiff for recovery of price shown in invoices produced at Ex.P.5 to 7 and 9 is within limitation prescribed 15 O.S.No.6241/2017 under Article 1 read with Section 19 of Limitation Act. Thus, I hold that the suit of the plaintiff is in time by answering this Issue in the Negative.
22. ISSUE NO.3: - This Issue was heard and decided on 05.10.2018. Such finding of the Court has not been set aside by the Appellate Court. Hence, there is no necessity to give finding on this issue again.
23. ISSUE NO.4: The plaintiff and defendant engaged in business. The plaintiff has established that the defendant was due for Rs.6,37,295/- as on 10.06.2017. The defendant not proved the payment of the price, hence the defendant is liable to pay the price of the goods to the plaintiff. The plaintiff has claimed interest at rate of 24% per annum from the date of the suit till complete realization. In the plaint the interest has been calculate at the rate of 18% per annum from 10.06.2017 to 10.08.2017. Looking to the transaction between the parties who engaged in business, I am the opinion that even though there is no express agreement between the parties in respect of interest, interest has to be granted. The interest at the 16 O.S.No.6241/2017 rate of 18% is reasonable. Therefore, I hold that plaintiff is entitled to claim interest at the rate of 18% per annum from 10.06.2017 till complete realization on principle amount of Rs.6,37,295/-. Accordingly, I answer this issue in the Affirmative.
24. ISSUE NO.5 & 6: While deciding issue No.1, finding has been given that M/S Chennai Fan House is proprietorship concern and Mr.Selvakumar who filed the Written Statement is the proprietor. The goods have been supplied to M/S Chennai Fan House and such proprietorship concern is liable to pay the price of the goods and the interest to the plaintiff. The defendant or Selvakumar cannot escape from such liability. Thus, I hold that plaintiff is entitled to recover the decretal amount from M/S Chennai Fan House represented by its proprietor Mr.Selvakumar. Accordingly, I answer these two issues in the Affirmative.
25. Point Raised For Decision of I.A.No.II: The defendant has claimed that invoices at serial No.1 to 6 are fabricated and invoices at serial No.7 to 10 are forged. The defendant along with application produced Xerox true 17 O.S.No.6241/2017 copies of some of invoices. He has not stepped into witness box to state that invoices produced by the plaintiff are fabricated or forged. Even the defendant has not tendered the genuine invoices which are in his custody. On the other hand the plaintiff has stated on oath that Ex.P.2 to P.11 are genuine invoices and such evidence has not been challenged by the defendant. Therefore absolutely there is no evidence on record to show that plaintiff has given false evidence before the court and thereby committed the offence under Section 191 r/w Section 193 of IPC. Therefore the contempt proceedings under Section 340 of Cr.P.C. cannot be initiated against the plaintiff. Accordingly I answer this point in the Negative and proceed to pass the following:
ORDER The suit of the plaintiff is decreed with costs for Rs.6,37,295/-.
I.A.No.II filed under Section 191 and 195 of IPC read with 18 O.S.No.6241/2017 Section 340, 250, 357 of Cr.P.C.
is dismissed.
The defendant is hereby directed to pay the decreed amount to the plaintiff along with interest @ 18% per annum from 10.06.2017.
In default, the plaintiff is at liberty to recover the decreetal amount and interest @ 18% per annum from 10.06.2017 till complete realization from the defendant in accordance with law.
Draw decree accordingly.
[Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me, in the Open Court on this the 6th day of June,2019].
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
ANNEXURE
1. List of witnesses examined on behalf of the Plaintiff:
PW.1 Sri K.C.Chidanand Appaji Urs 19 O.S.No.6241/2017
2. List of witnesses examined on behalf of the Defendants:
NIL
3. List of documents marked on behalf of the Plaintiff:
Ex.P.1 : Certified copy of Board resolution Exs.P.2 to 12 : Ten invoices Ex.P.13 : Ledger extract Ex.P.14 : Copy of legal notice Ex.P.15 : Postal receipt Ex.P.16 : Postal acknowledgement Exs.P.17 to 24 : Nine Lorry receipts
4. List of documents marked on behalf of the Defendants:-
NIL (B. B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE, BENGALURU CITY.20 O.S.No.6241/2017
01.06.2019:
Judgment pronounced in the Open Court (Vide separate detailed judgment) ORDER The suit of the plaintiff is decreed with costs for Rs.6,37,295/-.
I.A.No.II filed under Section 191 and 195 of IPC read with Section 340, 250, 357 of Cr.P.C. is dismissed.
The defendant is hereby
directed to pay the decreed amount
to the plaintiff along with interest
21 O.S.No.6241/2017
@ 18% per annum from
10.06.2017.
In default, the plaintiff is at
liberty to recover the decreetal
amount and interest @ 18% per
annum from 10.06.2017 till
complete realization from the
defendant in accordance with law.
Draw decree accordingly.
(B.B. Jakati)
LIX Addl. C.C. & Sessions Judge,
BANGALORE CITY.
22 O.S.No.6241/2017