Karnataka High Court
Million"S Selection vs Achalraj Jain N on 28 August, 2012
Author: A.S.Bopanna
Bench: A.S. Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE A.S. BOPANNA
REGULAR FIRST APPEAL NO.93/2010
BETWEEN:
1. MILLION'S SELECTION
NO.70, AMBIKA CLOTH MARKET,
D.K.LANE, CHICKPET CROSS,
BANGALORE-560 053.
REP BY ITS PROP:
SRI RAMESH B JAIN
2. SRI RAMESH B. JAIN,
PROP: MILLION'S SELECTION,
NO.70, AMBIKA CLOTH MARKET,
D.K.LANE, CHICKPET CROSS,
BANGALORE - 560 053.
3. SRI DILIP B. JAIN,
C/O MILLION'S SELECTION
NO.70, AMBIKA CLOTH MARKET,
D.K.LANE, CHICKPET CROSS,
BANGALORE - 560 053.
... APPELLANTS
(BY SRI G.B. NANDISH GOWDA, ADV. FOR R.B.
SADASIVAPPA)
2
AND:
SRI N. ACHALRAJ JAIN,
PROP: N.D.CUT PIECE CENTRE,
I FLOOR, RAJENDRA MARKET,
AVENUE ROAD,
BANGALORE - 560 002
REP BY HIS P.A. HOLDER,
SRI KANTHILAL
... RESPONDENT
(BY SRI B. PRAMOD, ADV.)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED: 5.10.2009 PASSED IN
OS.NO.8479/2001 ON THE FILE OF THE XXXI ADDL. CITY
CIVIL JUDGE, BANGALORE (CCH 14), DECREEING THE SUIT
FOR RECOVERY OF MONEY.
THIS RFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants herein are the defendants in O.S. No. 8479/2001. The suit in question was filed by the plaintiff seeking to recover a sum of Rs.82,200/- with interest at 18% per annum. The Court below after considering the rival contentions has decreed the suit. The defendants claiming to be aggrieved are before this Court. 3
2. The parties would be referred to in the same rank as assigned to them before the Court below for the purpose of convenience and clarity.
3. The facts in brief is that the plaintiff claim that he is the proprietor of M/s. N.D. Cut Piece Centre, which is engaged in supply of textiles to the different shops. The 1st defendant being a Cloth Shop selling textiles. In that regard, the plaintiff is stated to have supplied materials under the invoice no. 7702 dated 21.12.2000 for the value of Rs.28,153/-, invoice no. 7707 dated 09.01.2001 for the value of Rs.12,515/- and invoice no. 7708 dated 17.02.2001 for the value of Rs. 43,636/-. Thus, in all a sum of Rs. 84,304/- is claimed.
4. The case of the plaintiff is that despite the said amount being due and payable except a sum of Rs.5,000/- being paid on 21.05.2001, no further payments have been made by the defendants. It is also their case that two cheques dated 10.04.2001 and 11.08.2011, which was issued as part payment by the defendants for Rs.10,000/- and Rs.5,000/- respectively was dishonoured. Hence, it is contended 4 that after deducting the payment, which has been made and the interest accrued on the balance amount payable, the claim as on the suit was in a sum of Rs.82,200/-.
5. The case of the defendants in brief is that the plaintiff had not supplied the materials as claimed by them. It is contended in the written statement that though he had placed orders to the plaintiff for supply of the goods and had issued postdated cheques, the supplies have not been made and therefore, the amount claimed is not payable. Further, in respect of the supplies, which have been made under one invoice on 21.12.2000, a Credit note dated 05.01.2001 was issued, as the goods supplied was not as per specification. As such, the amount thereunder was not payable and in respect of other two invoices, no supplies whatsoever has been made and as such the amount claimed is not sustainable and the suit is liable to be dismissed.
6. The Court below after taking note of the rival contentions has framed seven issues for its consideration, which read as hereunder:-
5
1) Does plaintiff prove that the second defendant who is proprietor of the 1st defendant concern purchased textile fabrics of the value of Rs.
84,304/- on credit under the invoices dated 21.12.2000, 09.01.2001 and 17.02.2001 referred in para 2 of the plaint?
2) Were the said goods received by 3rd defendant for an on behalf of 2nd defendant?
3) Had the defendants agreed to pay interest at 18% p.a. on the bill amount in the event of non-
clearance of those bills within 30 days from the date of delivery of goods?
4) Were the cheque bearing no. 575674 dated 10.04.2001, cheque no. 526940 dated 11.08.2001 issued by 2nd defendant towards past payment of the amounts referred in the above bills?
5) Are the defendants liable to pay Rs. 79,304/- to the plaintiff towards balance principal and Rs. 2,396/- towards interest and Rs. 500/- towards notice charges?
6) Did 2nd defendant return goods of the value of Rs.
18,278/- to plaintiff's representative on 05.01.2001 as alleged in the written statement?
7) What order or decree?
7. The GPA holder of the plaintiff was examined as PW-1 and documents at Ex. P-1 to P-15 were relied upon. The 2nd 6 defendant examined himself as DW-1 and the 3rd defendant examined himself as DW-2 and the document at Ex. D1 was relied upon. The Court below on analyzing the evidence available on record has decreed the suit.
8. Sri. G.B. Nandish Gowda, learned counsel while assailing the judgment of the Court below would contend that the Court below was not justified. It is his case that the Court below has not properly appreciated the document, which was marked as Ex. D1, namely the Credit note dated 05.01.2001. If that document is taken into consideration, it would clearly establish that even for the goods, which is stated to have been supplied on 21.12.2000, the Credit note was issued on 05.01.2001 and when that establishes that the goods supplied had been returned, the question of paying the amount would not arise.
9. It is also his case that even in respect of the other two invoices dated 21.12.2000 and 17.02.2001, the same have not been acknowledged by the 2nd defendant, who is the proprietor of the 1st 7 defendant. In that view, when the supply of the goods itself is not established, the Court below was not justified in reckoning the said document for the purpose of granting the decree.
10. The learned counsel would also refer to the reply notice dated 21.10.2001 to contend that at the first instance itself, the defendants had contended that the supplies were not made in respect of two invoices and in respect of one invoice it was defective. He also points out that the defendants had stated at the first instance that the cheques issued were only as security and not towards discharge of the payment and the Court below therefore should not have taken the same into consideration for the purpose of decreeing the suit. Hence, the learned counsel contends that the judgment and decree passed by the Court below is liable to be set aside.
11. Sri. B. Pramod, learned counsel appearing for the plaintiff however seeks to sustain the judgment passed by the Court below. The learned counsel would refer to the invoice, which is the basic document under which the supplies were made, the document 8 indicates the value of the goods and therefore the question of the defendants having issued the blank cheques in any case would not arise.
12. Further, it is pointed out that the document at Ex. D-1 relied on by the learned counsel for the defendants was looked into by the Court below and has rightly rejected the same. It is his case, the very fact that no reference was made to such document in the reply notice itself will show that it is a fabricated document. That apart, the learned counsel would refer to the order sheet maintained before the Court below, whereunder the Court had recorded the submission of the 2nd defendant about one Sri. Raghu being his employee and he has signed the invoice. In that context, the learned counsel would also point to the cross-examination of the defendant no.1, wherein once again he has admitted with regard to the fact that Sri. Raghu was his employee and regarding certain initials having been made by the 2nd defendant.
13. Therefore, it is contended that when the documents, 9 which are at Ex. P-2 to P-4 are drawn up in the normal course of business and when the defendants has admittedly issued one cheque for Rs. 5,000/-, which has been honoured and other two cheques have been dishonoured, the preponderance of probabilities has to be taken into consideration, where the claim has been established. Hence, it is contended that the appeal is without merit and the same is liable to be dismissed. In the light of the rival contentions, the only point that arises for consideration in the instant case is as to whether the Court below was justified in decreeing the suit based on the document, which were available on record.
14. In order to consider the said question, it would be necessary to reappreciate the materials, which is available on record in the background of the case which has been putforth by the parties. At the outset, the claim of the plaintiff is based on the Credit bill, which has been issued in respect of the goods, which have been supplied. The document at Ex. P-2 is the Credit bill dated 09.01.2001. At the outset, the same requires to be considered in the background of the defense, which has been putforth. The receipt of the goods therein is 10 not disputed by the defendants, but what is contended is that the quality of the goods was sub-standard and therefore the same was returned as per Ex. D-1.
15. First and foremost, the document at Ex. D-1, does not appear to be authentic insofar as the nature of the acknowledgment, which is stated to have been sought therein. That apart, what is to be noticed is that the document at Ex. D-1 is dated 05.01.2001. In that context, the reply notice dated 21.10.2001 as at Ex. P-7 is subsequent to the said date. The reply being the basis of the entire case would indicate that the defendants have not made any reference whatsoever to the said document in the reply notice, but the contention is totally denied in the reply, which will be adverted later.
16. Therefore, if this aspect itself is kept in view, the document at Ex. D-1 cannot be relied upon and when that basis is taken away, the contention that the goods received by them has been returned cannot be accepted. If that be so, the very value under the said bill itself is in a sum of Rs.12,515/- and even if the admitted 11 payment of Rs.5,000/- is adjusted under the said invoice, there would be balance amount payable.
17. If that aspect of the matter is kept in view, the same also forms a basis to consider whether the Ex. P-3 and P-4 should be accepted. When the contention to deny Ex. P-2 is found to be false, the nature of the defense being putforth in respect of Ex. P-3 and P-4 by totally denying the same will show that the defendants are not truthful in taking their defense. In any event, the order sheet being a part of the judicial proceedings and the order which is made therein on 01.08.2002 indicates that one Sri. Raghu is his employee. Though, the 2nd defendant denies the signature in other two invoices, the very nature of the defense as already taken note by me, while considering that aspect of the matter and on indicating that even under admitted invoice, there was further amount due and payable and despite the same the defendants have taken the defense of there being no transaction would militate against the defendants.
18. Be that as it may, in the cross-examination of DW-1, he 12 has further agreed that Ex. P-3 bears his initials in the short form. However, he has denied that Ex. P-3 is false. Once again to know the truthfulness of the defense putforth by the defendants, it would be necessary to refer to reply notice dated 21.10.2001, which is marked as Ex. P-7. In the reply, it is stated that four blank cheques were issued by the defendants to the plaintiff. The said contention was not taken in the written statement. In any event, at the first instance when the defendants denies that there was no transaction whatsoever with regard to the supply, what is to be noted is the contradictory statement which is made to state that four blank cheques have been issued, which in itself would indicate that the defendants are attempting to hide the facts. In a transaction of the present nature, when the supplies are made under the invoice, which is shown as a Credit bill, the question of issuing blank cheques in advance would not arise.
19. Furthermore, what is to be noticed is that one of the cheques for Rs.5,000/- has been encashed and the other two cheques have been returned for want of funds. Therefore, if all these materials are looked into in comparison with each other and if the evidence 13 putforth by the plaintiff is kept in view, the attempt of the defendants appears only to deny the plaintiff's right by taking one or the other contention. I am of the said view also for the reasons that the 3rd defendant, who was examined as DW-2 is none other than the brother of the 2nd defendant. Despite the plaintiff having stated that he was available when goods were received, he had made attempt to disclaim the same by indicating that he keeps moving around. Therefore if all these aspects are kept in view, I am of the opinion that the supplies made under the said Credit bills stand established and the fact that the cheques issued by the defendants have been dishonoured would indicate that the defendants though had issued the cheque have not honoured the same and are at present making attempt to deny their liability. Therefore, the evidence available on record clearly establishes that the claim made by the plaintiff is justified and the Court below in fact has properly appreciated the material to arrive at its conclusion. Therefore, I see no error whatsoever in the judgment passed by the Court below so as to call for interference. 14
20. In view of the above, the appeal is devoid of merit and the same is accordingly dismissed.
21. Since the appeal is now dismissed, the respondent is entitled to withdraw the 50% of the decreetal amount, which has been deposited before this Court. The registry is directed to disburse the same accordingly.
Sd/-
JUDGE ST*