Bangalore District Court
M/S Phalada Agro Research Foundation ... vs M/S Ghousia Food Products (P) Ltd on 8 February, 2023
1 Com.O.S.No.1175/2022
In the Court of LXXXIV Addl. City Civil and Sessions
Judge (CCH-85 Commercial Court) Bengaluru
Dated this the 8th day of February 2023
Present : Smt.H.R.Radha, B.A.L., L.L.M.
LXXXIV Addl. City Civil and Sessions Judge,
(CCH-85 - Commercial Court)
Bengaluru
Com.O.S.No.1175/2022
Plaintiff M/s Phalada Agro Research Foundation Pvt.
Ltd., a company registered under the
Companies Act, 1956 and having their
registered office at 92/5, Kannalli Village,
Segehalli Cross, Magadi Main Road,
Bengaluru-560 091, rep. by Sri.Yogesh R.N.,
Manager (Supply Chain)
(By Sri.Y.Hariprasad, Adv.)
Vs
Defendant M/s Ghousia Food Products (P) Ltd., rep. by
Mr.Syed Misbauddin Aga, #14, Berlie Street,
Langford Town, Shanthinagar, Bengaluru -
560 025, Email : [email protected]
(By Sri.Arjun Rego, Adv.)
Date of Institution 16.08.2022
2 Com.O.S.No.1175/2022
Nature of suit For recovery of money
Date of First Case
18.11.2022
Management Hearing
Date of commencement of 29.11.2022
recording of evidence
Date on which judgment
08.02.2023
pronounced
Time taken for disposal Years Months Days
1) Total duration 00 05 23
2) From the date of First 00 02 21
Case Management Hearing
LXXXIV Addl. City Civil and Sessions Judge,
(CCH-85 Commercial Court), Bengaluru
JUDGMENT
This is a suit for recovery of Rs.40,18,058.08 from the defendant with interest at 18% p.a. from the date of suit and cost.
3 Com.O.S.No.1175/2022
2. The plaintiff's case in brief is that they are an incorporated company doing the business of exporting chilli, mango pulp etc. to foreign buyers and the defendant company is into selling fruits etc. As per the demand of foreign buyers, they placed purchase order with the defendant for supply of 100% natural Alphonso mango pulp worth Rs.2,71,62,240/- including tax and the defendant supplied the same worth Rs.2,61,85,522/- including GST. They had paid Rs.22,74,880/- to the defendant on 09.04.2021 and out of this the defendant treated Rs.9,76,716/- as advance; issued two cheques for Rs.4,88,000/- and Rs.4,88,716/- bearing No.931261 and 931262 both dated 12.10.2021. The customers rejected product worth Rs.30,41,342/- out of the mango pulp supplied by the defendant between 01.04.2020 and 17.07.2021; interest payable thereon is Rs.8,83,421.42. On presenting the cheques issues by the defendant, they were dishonoured for insufficient funds and the defendant is liable to pay 18% interest on Rs.40,18,058/-. On receiving legal notice dated 10.12.2021, the defendant neither replied nor complied with the demand.
4 Com.O.S.No.1175/2022
3. The defendant has filed the written statement contending that they are into manufacture of fruit pulp concentrates packed in aseptic cans with the help of most modern machinery imported from Italy, Germany etc. and have various quality certifications including ISO 22000:2005, FSSAI Ministry of Food Processing Industries of Government of India; they maintain hygiene and international standard in manufacture and export of natural fruits and pulp products. They are not into manufacture or export of organic mango fruits or organic mango pulp or organic products in general. They supplied 100% natural Alphonso mango pulp in compliance of the purchase order. The plaintiff who duly accepted and confirmed the mango pulp without raising any objections with regard to the quality, quantity, grade or the condition, appears to have played fraud on international clients by misrepresenting that organic Alphonso mango pulp was supplied. There is difference between the manner in which organic and natural mango pulp are extracted and manufactured. The plaintiff is solely responsible to its international clients; there is no previty of contract between them and the plaintiff's clients. The plaintiff has 5 Com.O.S.No.1175/2022 misused the cheques issued towards security, at the commencement of the business; the international clients of the plaintiff are proper and necessary parties and the suit is liable to be dismissed for non joinder of parties.
4. At the stage of admission and denial of documents U/o XI Rule 4 CPC, as amended by Sec.16 of the Commercial Courts Act, Ex.P1 and P2 are marked for the plaintiff and Ex.D1 to D27 for the defendant by dispensing with further proof thereof.
5. Based on the pleadings this court has framed the following ISSUES
1. Whether the plaintiff proves that the material supplied by the defendant between 01.04.2020 to 17.07.2021 worth Rs.30,41,342.08 under eight invoices mentioned in para No.6 of the plaint was of inferior quality?
2. Whether the plaintiff proves that Rs.9,76,716/- out of the total amount paid on 09.04.2021 was paid to the defendant towards advance?
6 Com.O.S.No.1175/2022
3. Whether the plaintiff is entitled for recovery of Rs.40,18,058.08 towards the cost of inferior quality material supplied by the defendant and refund of the advance, as prayed?
4. Whether the plaintiff is entitled for Rs.8,83,421.42 towards 18% interest and notice charges, as prayed?
5. What Order or Decree?
6. The plaintiff's authorized representative is examined as Pw1; he has filed affidavit in lieu of examination in chief and got marked Ex.P3 to P46; Ex.P47 and P1(a) are marked through Dw1 during Dw1's cross examination. Thereafter Pw1 was further examined in chief and Ex.P48 to P59 are got marked and he is further cross examined by the defendant.
7. The Director of the defendant and the authorized signatory is examined as Dw1; he has filed affidavit in lieu of examination in chief. The plaintiff got marked Ex.D28 during his cross examination.
8. Heard arguments.
7 Com.O.S.No.1175/2022
9. My findings on the above issues are:
Issue No.1: In the negative Issue No.2: In the affirmative Issue No.3: Partly in the affirmative Issue No.4: Partly in the affirmative Issue No.5: As per the final order for the following REASONS
10. Issue No.1: The defendant admits the two purchase orders Ex.P1 and P2 with accompanying tax invoices, during admission and denial of documents U/o XI Rule 4 CPC. The requirement under the purchase orders was that the defendant should supply 100% natural mango Alphonso pulp free from pesticides, chlorate and other foreign particle, as per the approved sample packed in new 250 kg food grade galvanized MS drums with aseptic bags and inner liner packing and it should be accompanied by lab test reports like PH, brix, viscosity, spots, colour etc., as per EU standard in addition to lab reports on physical, chemical and microbiological parameters of each lot.
8 Com.O.S.No.1175/2022
11. Ex.D1 to D27 are admitted by the plaintiff. Ex.D1 to D26 consist of the plaintiff's purchase orders and the defendant's tax invoices. Ex.D27 is the plaintiff's letter dated 05.07.2021 demanding refund of advance of Rs.9,76,716/- on the ground of quality issues relating to goods supplied against the purchase order Ex.D4 dated 05.06.2020 and the one dated 16.06.2020. It also speaks about the plaintiff enclosing copy of the ledger extract as on 05.07.2021 for the defendant's reference.
12. The defendant does not dispute that supplying 100% natural mango Alphonso pulp to the plaintiff under the eight invoices dated 15.05.2020, 08.09.2020, 21.12.2020, 12.01.2021, 12.01.2021, 31.03.2021, 31.03.2021 and 31.03.2021 as stated in para 6 of the plaint, but specifically contend that the supply was made as specified in the purchase order; the plaintiff received and accepted the same without any objections and if the natural pulp is sold by the plaintiff to the foreign buyers misrepresenting the same to be 100% organic pulp, they cannot be held responsible for the consequences. 9 Com.O.S.No.1175/2022
13. Pw1 has filed affidavit in tune with the plaint averments stating that the Alphonso mango pulp worth Rs.30,41,342.08 supplied by the defendant between 15.05.2020 and 31.03.2021 under eight invoices as stated in plaint para 6 was rejected by the customers owing to inferior quality. Ex.P4 is the extract of the Board Resolution issued in Pw1's favour and Ex.P3 is the power of attorney. Nothing worthwhile is elicited during Pw1's cross examination to discredit the evidence that he is authorized by the Board of Directors to depose on the plaintiff's behalf and that he knows about the plaintiff's transaction with the defendant.
14. Pw1 states that the plaintiff has the license to export organic mango pulp. Ex.P49, certificate of registration of the plaintiff with Agricultural and Processed Food Products Export Development Authority, Ministry of Commerce and Industries, Government of India, produced to substantiate the same, shows that the plaintiff is recognized as the manufacturer and merchant of various products like dried and preserved vegetables, mango pulp, other processed fruits and vegetables, 10 Com.O.S.No.1175/2022 honey, cereal preparations alcoholic and non alcoholic beverages etc.
15. Admittedly, the plaintiff's registered address is No.92/5 Kannahalli village, Segehalli Cross, Magadi Main Road, Bengaluru. As seen from the purchase orders produced by the plaintiff, the defendant was required to deliver the consignment to the above address. Pw1 admits in unequivocal terms that there was no agreement between the defendant and the buyer; and it was the plaintiff who had undertaken to export the consignment to the foreign buyer. Under these circumstances, the argument of the plaintiff that the defendant directly shipped the consignment to the buyer, cannot be accepted.
16. Pw1 admits that the defendant was required to supply 100% natural Alphonso mango pulp; and the plaintiff confirmed the orders only after approval of the sample. The plaintiff relies upon the debit notes raised by foreign buyers to substantiate the claim that the mango pulp supplied by the defendant was rejected on quality issues. However, Pw1 admits that these 11 Com.O.S.No.1175/2022 debit notes are raised six to nine months from the date of receipt of the consignment from the plaintiff.
17. Pw1's evidence shows that, apart from the defendant the plaintiff used to buy mango pulp from several other local dealers and the debit notes do not speak about the person who actually supplied the mango pulp, rejected thereunder, to the plaintiff.
18. Therefore, the burden lies heavily upon the plaintiff to establish that the defendant was the supplier of the mango pulp consigned to the foreign buyers under export invoices mentioned in the debit notes. The particulars reflected in the debit notes relied upon by the plaintiff are extracted in the table below for easy reference:
Sl. Exhibit Debit Note Foreign Buyer's Export Value in Reason for No No. Date name Invoice No. Euro/USD rejection
1. Ex.P6 28.04.2021 biokorntakt EG190/20-21 2695 Quality Claim Vertriebs GmbH Euros
2. Ex.P7 18.02.2021 - do- EG222/19-20 4386 Quality claim Euros towards transportation and disposal charges
3. Ex.P8 - do - - do - - do - 2580 - do -
Euros 12 Com.O.S.No.1175/2022 Sl. Exhibit Debit Note Foreign Buyer's Export Value in Reason for No No. Date name Invoice No. Euro/USD rejection
4. Ex.P9 - do - - do - EG096/20-21 4502 Quality claim Euros towards duty charges and control drums
5. Ex.P10 - do - - do - - do - 1211 Quality claim Euros towards transportation and disposal charges
6. Ex.P11 18.02.2021 biokorntakt EG222/19-20 952 Quality claim Vertriebs GmbH Euros towards transportation and disposal charges
7. Ex.P12 24.02.2021 Fairtrasa Freight cost Sustainable NIL 2600 claim towards Foods BV Euros organic (Allfood) mango puree
8. Ex.P20 & 01.06.2021 Arab Beverages EG262/20-21 313.90 Quality Claim P22 USD towards organic Alphonso mango pulp rejected due to formation of mould
9. Ex.P21 - do - - do - - do - 627.80 - do -
USD
10. Ex.P23 - do - - do - - do - 941.70 - do -
USD
11. Ex.P24 26.07.2021 HiPP NIL 4221.53 Ten drums Euros mango puree with bombage
12. Ex.P25 - do - - do - NIL 7267.58 Cost for Euros aseptic filling, transportation cost, destruction cost for ten drums bombage & product loss due to aseptic filling 13 Com.O.S.No.1175/2022
19. Ex.P50, export invoice bearing No.EG206/20-21; Ex.P51 bearing No.EG205/20-21; Ex.P53, bearing No.EG123/20-21 are raised by the plaintiff in relation to supply of Alphonso mango pulp to HiPP and Fairtrasa (Allfoods). But the bill of lading at page No.3 of these invoices show that the plaintiff shipped organic mango puree to the consignee. Ex.P24 and P25 relate to supply of mango puree to HiPP supplied under Ex.P50 and P53.
20. Ex.P12 is raised by Fairtrasa (Allfoods) towards mango puree freight cost. Ex.P55 is the shipping bill summary relating to the goods supplied to Fairtrasa under export invoice No.EG123/2021 and Ex.P13 would show that the plaintiff issued the said credit note in relation to the mango puree supplied under invoice No.EG123/20-21. Ex.P52 is the export invoice No.EG262/20-21 raised on Arab Beverages with regard to supply of organic mango pulp. As discussed earlier, Ex.P20 to P24 are issued by Arab Beverages
21. Ex.P56 is the export invoice bearing No.EG096/20-20 raised in the name of biokorntakt towards supply of organic 14 Com.O.S.No.1175/2022 certified mango Alphonso puree and organic naturland fair certified Alphonso mango puree. Likewise, Ex.P57 and P58 are the export invoices bearing No.EG190/20-21 and EG222/19-20 towards supply of organic naturland fair certified Alphonso mango puree to biokorntakt.
22. It is pertinent to note that a certificate issued by Plant Protection Officer, Govt. of India with regard to weight of the consignment and that it does not involve Phytosanitary risk, accompanied the above invoices. Except addressing emails alleging that the mango puree supplied by the defendant was rejected for bitter taste and other deviations, the plaintiff has failed to furnish the details of the invoice under which the defendant allegedly supplied such consignment, the date of its export and the date on which the foreign buyer rejected the same.
23. The attachment to Ex.P27 the email dated 20.10.2020 relates to 20.06.2019 and not the mango pulp supplied by the defendant in 2020 and therefore, cannot have any bearing the matter in issue. There is nothing to indicate that the statement 15 Com.O.S.No.1175/2022 at page No.4 of Ex.P7 with regard to alleged loss in business was forwarded to the defendant at any point of time, because email at Ex.P27 is silent about the same. Ex.P28 is another email wherein the plaintiff claims to have received complaint with regard to the contents of one drum of 215 kg exported to their customer to be spoiled and there is no reference to the name of the customer and the communication received in that behalf.
24. Ex.P29 is the email dated 16.12.2020 alleging that the plaintiff received complaints with regard to the same batch supplied and that there seems to be some issue with the aseptic bags or the process of preparing the pulp. However, this email also does not specify the name of the customer and copy of the complaint is not enclosed with the email. By Ex.P30 the plaintiff alleges that the product does not match with earlier supplies and the samples by enclosing the images.
25. As seen from Ex.P31, while responding to the plaintiff's email the defendant has refuted the allegations insisting that they are following all quality checks and there was no deviation 16 Com.O.S.No.1175/2022 in colour, taste or consistency of the goods and all supplies conform to the sample and the standard, but there could be slight change in the colour because Alphonso looses its colour if not cold stored, but they do not store in cold conditions; 43 drums of 2019 crop was exported in April 2020 after expiry of 18 months and they cannot be blamed for the same.
26. By Ex.P32 dated 23.03.2021 the plaintiff despite complaining that the supply did not match the sample expressed willingness to book five containers and requested for time to make payment. But the defendant has rejected the proposal as seen from Ex.P33. On 06.05.2021 the plaintiff enclosed some photos with email alleging that they have noticed unusual pink colour in the organic Alphonso mango pulp and on the inner surface of its aluminum packing; and it is also made clear that this anomaly is observed for the first time in Ex.P35. However, no reference is made in this email to the date on which the pulp was supplied by the defendant, whether the same was already exported? If so name of the foreign buyer and if the plaintiff had received any complaint from them. 17 Com.O.S.No.1175/2022
27. Ex.P36 is the plaintiff's email dated 08.05.2021 alleging that there goods supplied under the defendant's invoice GFP/EXP/D39/20-21 dated 11.01.2021 was rejected by the plaintiff's customer and one of the buyers had cancelled the order as such the plaintiff should refund Rs.6,00,000/- paid for Tothapuri mango puree and Rs.3,76,176/- towards Alphonso mango puree amounting to Rs.9,76,176/-.
28. On 08.06.2021 the plaintiff issued another email stating that there were lot of quality issues and orders for couple of containers had been cancelled as such they paid quality claim of 20,000 Euros plus and therefore, requested the defendant to refund the advance payment of Rs.9,76,716/- on or before 10.06.2021. By Ex.P37, the defendant has replied acknowledging that the plaintiff's balance advance is pending with them and undertaking to clear the same either by the end of July 2021 or in the first week of August.
29. As per another email of the plaintiff dated 19.07.2021 they had received the complaints from the customer alleging that black oil was running out from the bottom of some drums 18 Com.O.S.No.1175/2022 and the warehouse ground was contaminated; there were white moulds on the bottom surface of the drums; several drums were not sealed; on opening the drum cover, the bags were found to be open and not aseptic anymore.
30. The photos attached by the plaintiff with the email Ex.P38 speak to the effect that organic Alphonso mango pulp was exported to Arab Beverages by the plaintiff claiming to be the last processor of the product. As admitted by Pw1 there is nothing in Ex.P1 and P2 to show that the plaintiff intended to export the pulp to a foreign buyer and order related to 100% natural Alphonso mango pulp whereas the plaintiff is into exporting organic mango pulp.
31. Relying on Ex.P47 and P48, it is argued for the plaintiff that the defendant deals with organic mango pulp and puree and the one exported to the foreign buyers under Ex.P49 to P58, which came to be rejected later on quality issues, was supplied by the defendant.
32. Ex.P47 is the computer printout of the defendant's website describing their products; Alphonso mango product 19 Com.O.S.No.1175/2022 description as well as physical and chemical analysis are described as under:
"The product is derived from fresh, sound, ripe, Alphonso mango fruit (Mangifera Indica L Anacrdiacae VAR Alphonso). Firm fully manufactured mangoes are harvested, quickly transported to fruit processing plant and inspected. Selected suitable quality of fruits goes into the atmospheric controlled ripening chambers and allowed to ripen. The matured ripened fruits are washed, deseeded, pulp extracted, thermally processed and aseptically filled by HTST process in presterilized bags which are hermetically sealed, processed and cooled.
Appearance Uniform, Homogeneous,
smooth, free from fibers and
foreign matter
Aroma and flavour Characteristic prominent
aroma of natural ripe
Alphonso mangoes, free from
any fermented and off flavour
and scorched or caramelized
flavour
characteristic typical sweet
acidic taste of natural ripe
Alphonso mango. Free from
any off taste
Colour Orangish yellow
Physical Brix @ 20°C :16-18°
characteristics
Acidity : 0.60 to 1.20 (As %
anhydrous citric acid W/W)
pH @ 20°C : 3.8 to 3.8
20 Com.O.S.No.1175/2022
Consistency @ 20°C : 6-12
cm / 30 sec. (Bostwick)
Black Specks: Brown Specks:
< 5 no per 10 gms
Micro biological Total plate count : < 10 CFU
standards per grm.
Yeast and mould count : < 10
CFU per grm
Coliform : Absent per gram
Pathogens : Absent per grm
"Commercially sterile", free
from bacillus, osomophilic
yeast, coliform and any other
pathogenic micro organism
and fit for human
consumption.
33. Ex.P48 is the certificate issued by LACON in accordance with the requirements of India's National Program for organic production standards [considered equivalent to council regulation (EC) No.834/2007 (category A and F) and Swiss Organic Farming Ordinance for unprocessed plant products originating in India] for processing, valid from 01.06.2020 to 31.05.2020 and valid for the products and area that are specified in the annexure. Serial No.1 to 4 referred to organic Alphonso mango, Alphonso mango pulp, Alphonso mango puree.21 Com.O.S.No.1175/2022
34. But as admitted by Pw1, besides the defendant the plaintiff has been procuring mango pulp from other local dealers also for exporting the same. The purchase order is confirmed only after approval of the sample. The plaintiff purchased natural mango pulp from the defendant, but supplied organic mango pulp to the foreign buyers. The defendant is not a party to the transactions under Ex.P49 to P58 and the same relates to export of organic mango pulp by the plaintiff.
35. Pw1 further admits in unequivocal terms that none of the documents produced by the plaintiff relate to the defendant and there is nothing to say that the mango pulp supplied by the defendant was exported to the foreign buyers under the invoices at Ex.P50 to P58. His admission that Ex.P48 was issued by LACON on the plaintiff's application by mentioning the pulp as organic pulp makes it clear that this certificate is got obtained by the plaintiff just to buttress the otherwise unsustainable claim and to contend that the defendant is into supplying organic mango pulp.22 Com.O.S.No.1175/2022
36. Further, mango pulp and mango puree are two different products of mango and the same is evident from the list accompanying Ex.P48. The plaintiff has filed the suit to recover the amounts paid to the defendant for procuring mango pulp and not mango puree. Such being the case, Ex.P12, P13, P24 and P25 relating to mango puree are not at all relevant for the matter in issue.
37. Sec.15 of the Sale of Goods Act creates implied condition in the case of a sale by description that the goods must correspond with the description. The plaintiff relies upon the ratio in Rajratan Babulal Agarwal Vs Solartex India Pvt. Ltd. & Ors. reported in AIR 2022 SC 543 that mere acceptance of the goods by the buyer does not prevent him from contending that there had been breach of condition.
38. However, in my considered opinion the ratio in the above decision cannot be applied to the facts of this case because it was rendered in relation to a contract for sale of coal of certain quality to be used in a boiler, whereas the plaintiff who procured natural mango pulp from the defendant is seeking to 23 Com.O.S.No.1175/2022 recover the price of the organic mango pulp sold to the foreign customers and rejected by them. More so, when the plaintiff has failed to discredit Dw1's evidence that the defendant supplied pesticide free mango pulp, as per approved sample.
39. Likewise, the ratio in M/s Duraisamy and Co. & Anr. Vs M/s R.Piyarilal and Co. (P) Ltd. & Anr. reported in AIR 2022 Madras 356 is of no avail to the plaintiff because in that case the defendant accepted and confirmed receipt of returned defective goods. When the plaintiff has procured mango pulp not only from the defendant but also from other local dealers, it becomes difficult to accept the argument that the organic pulp supplied to biokorntakt, Arab Beverages, Fairtrasa (Allfoods) and HiPP GmbH, which came to be rejected later, was procured from the defendant, when there is no convincing, cogent and acceptable evidence in that behalf.
40. For the forgoing reasons and having regard to the categorical statement of Pw1 that there is nothing in Ex.P50 to P58 to say that the mango pulp supplied by the defendant was exported thereunder, I am of the considered opinion that the 24 Com.O.S.No.1175/2022 plaintiff has failed to prove that they exported the mango pulp worth Rs.30,41,342.08 supplied by the defendant between 01.04.2020 to 17.07.2021 or that the same was of inferior quality, resulting in its rejection by the foreign buyer. Accordingly, the issue for consideration is answered in the negative.
41. Issue No.2: Ex.P36, the plaintiff's email dated 08.05.2021 shows that they had paid advance of Rs.6,00,000/- for Tothapuri puree and Rs.3,76,176/- towards Alphonso puree but the buyer cancelled the order and therefore, the defendant was requested to refund advance of Rs.9,76,176/- in all. With regard to the same, the defendant has sent reply by email vide Ex.P37 stating that the balance advance amount is pending with them and they will be clearing the same the defendant replied on 06.07.2021 (Ex.P37) stating that either during the month or in the first week of August.
42. The email correspondence at Ex.P41 speaks to the effect that the defendant had issued cheuqe bearing No.931361 for Rs.4,88,000/-. By email dated 15.09.2021 the plaintiff was 25 Com.O.S.No.1175/2022 requested to deposit the said cheque on 20 th September. Then again there was a request from the defendant on 20.09.2021 to deposit the cheque on Wednesday, 22nd September. On 24.09.2021 the plaintiff informed the defendant that cheque bearing No.931361 for Rs.4,88,000/- presented as per instructions was bounced due to insufficient fund and therefore, the payment should be made by demand draft or pay order immediately.
43. Ex.P40 another email correspondence between the parties reveals that the plaintiff informed the defendant by email dated 01.10.2021 that they would be representing cheque bearing No.931361 for Rs.4,88,000/- and requesting to confirm if they could present second cheque bearing No.931362 dated 30.09.2021 for Rs.4,88,716/-. On 01.10.2021 the defendants replied to the above email assuring to transfer the amount by RTGS in 3 to 4 working days and requesting the plaintiff not to deposit the cheque on the ground that the bank had withheld the payments due to half year closing.26 Com.O.S.No.1175/2022
44. Ex.P39 consists of series of email correspondence between the plaintiff and the defendant with regard to refund of advance amount. On 20.10.2021 the defendant informed that because of maintaining OD account with JK Bank, they had to pay close the current account with YES Bank and their loan facility renewal was under process in JK Bank and therefore, the payment would be made on or before the next Friday. By email dated 29.10.2021 the plaintiff enclosed their cancelled cheque with bank details to process the payment directly into their account either by RTGS or NEFT and in reply thereto the defendant once again requested for one week's time to pay the amount.
45. The above correspondence amply demonstrates that the plaintiff had paid advance of Rs.9,76,176/- in all for the supply of Tothapuri mango puree and Alphonso mango puree but sought for refund of the amount after the buyer cancelled the order. The defendant having issued two cheques bearing No.931361 and 931362 each for Rs.4,88,716/- towards refund of the advance amount neither honoured the cheque on 27 Com.O.S.No.1175/2022 presentation to the bank nor transferred the same either by RTGS or NEFT as assured in their emails.
46. It is not the defendant's case that they have refunded this advance amount and the defendant has failed to produce bank statement to establish the payments if any made in this behalf. On the other hand, Dw1 admits that he asked the plaintiff to present the cheques but it was not relating to the quality issue. Having said so Dw1 has not clarified as to for what other purpose the two cheques were issued by him. In the absence of such explanation and unchallenged claim of Pw1 that the cheques were issued towards refund of the advance amount, I am constrained to answer the issue for consideration in favour of the plaintiff. It is accordingly answered in the affirmative.
47. Issues 3 and 4: These issues are interrelated as they pertain to the plaintiff's entitlement to the relief sought in the suit. Therefore, the same are taken up together for convenience.
48. As could be gathered from the conditions in the admitted documents Ex.P1 and P2, the defendant should refund the 28 Com.O.S.No.1175/2022 advance paid by the plaintiff with interest at 18% p.a. in the event of not supply the material. As already discussed, the plaintiff paid advance of Rs.9,76,716/- in all for supply of Tothapuri and Alphonso mango products. But there was no occasion for the defendant to supply the same as the order was cancelled by the foreign buyer.
49. The plaintiff requested the defendant to refund the advance amount on the ground of the foreign buyer cancelling the order by email at Ex.P36 dated 08.05.2021. The defendant since failed to honour the cheques issued towards its refund, I am of the opinion that the plaintiff is entitled to recover Rs.9,76,716/- paid as advance to the plaintiff for supply of Tothapuri and Alphonso mango products in respect of which no supply was made by the defendant as cancellation of the order by the foreign buyer was communicated by Ex.P36.
50. For the forgoing reasons and also having regard to the findings on issue No.1, I am of the considered opinion that the plaintiff is entitled for refund of the advance amount Rs.9,76,716/- from the defendant with interest at 18% p.a. from 29 Com.O.S.No.1175/2022 08.05.2021 being the date of demand for its refund, amounting to Rs.2,23,668/-, i.e. Rs.12,00,384/- in all with current and future interest at 10% p.a., notice charges of Rs.10,000/- and cost of the proceedings. Accordingly, the issues for consideration is answered.
51. Issue No.5: In the result, I pass the following :
ORDER Suit of the plaintiff is decreed in part with cost.
The plaintiff is entitled to Rs.12,00,384/- from the defendant with current and future interest at 10% p.a. and notice charges of Rs.10,000/-.
Draw decree accordingly.
Issue copy of the judgment to the parties through email as provided U/o XX Rule 1 of CPC if email ID is furnished.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then pronounced by me in the open court on this the 8th day of February 2023) (H.R.Radha) LXXXIV Addl. City Civil and Sessions Judge, (CCH-85 Commercial Court), Bengaluru 30 Com.O.S.No.1175/2022 ANNEXURE List of witnesses examined for the plaintiff:
Pw1 Yogesh R. List of documents marked for the plaintiff:
Ex.P1 Purchase order dated 21.04.2020 with 10 invoices Ex.P1(a) Relevant entry Purchase order dated 05.06.2020 with 09 Ex.P2 invoices Ex.P3 Original GPA Ex.P4 Board Resolution dated 15.07.2022 Ex.P5 System generated ledger account extract Ex.P6 to P11 Debit notes Ex.P12 Invoice Ex.P13 to P19 Credit notes Ex.P20 to P23 Debit notes Ex.P24 & P25 Invoice issued by HiPP Ex.P26 System generated ledger account extract Ex.P27 to P30 Copy of emails correspondence with enclosures Ex.P31 Copy of the defendant's reply by email dated 24.03.2021 Ex.P32 to P42 Copy of emails correspondence with enclosures Ex.P43 Certificate U/s 65B of the Evidence Act Ex.P44 Office copy of legal notice dated 10.12.2021 Ex.P45 Postal receipt Ex.P46 Postal acknowledgment Ex.P47 Alphonso mango product details from the website Ex.P48 Scope certificate dated 01.06.2020 31 Com.O.S.No.1175/2022 Ex.P49 Registration cum Membership certificate Ex.P50 to P53 Invoices Ex.P54 Phytosanitray certificate dated 20.10.2020 Ex.P55 Shipping Bill summary Ex.P56 & P58 Invoices Ex.P59 Certificate U/s 65B of the Evidence Act List of witnesses examined for the defendant:
Dw1 Syed Misbah Aga List of documents marked for the defendant:
Ex.D1 to D4 Purchase orders Ex.D5 to D26 Invoices Ex.D27 Letter dated 05.07.2021 Ex.D28 Copy of email dated 24.03.2021 (H.R.Radha) LXXXIV Addl. City Civil and Sessions Judge, (CCH-85 Commercial Court), Bengaluru