Bangalore District Court
M/S.New India Electricals Ltd vs M/S.Mahamaya Steel Industries on 22 February, 2016
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY: (CCH.18)
Dated this 22nd day of February, 2016.
Present
SMT.K.B.GEETHA, M.A., LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.4890/2010
PLAINTIFF : M/s.New India Electricals Ltd.,
Having its Office at Desai House,
#39/2, J.C.Road,
Bangalore-560 002.
Represented by its General Manager
Mr.Jatin Shah.
(By Sri S.Velmurugan, Advocate)
-VS-
DEFENDANTS : 1. M/s.Mahamaya Steel Industries,
(Division of Rajesh Strips Ltd.,)
Plot No.B-8/9, Sector-C,
Urla Growth Centre,
Sarora,
Raipur-493 221.
Chhattisgarh.
Represented by.
2. Mr.Dinesh Kumar Porwal,
Director, H.No.11,
Harshit Vihar,
Phase-3, Heerapur Road,
Mohba Bazaar,
Raipur-492 001.
2 O.S.No.4890/2010
3. Mrs.Gulab Bai Agarwal,
Director,
c/o Rajesh Strips Ltd., 535/C,
Urla Industrial Area,
Raipur-492 001.
4. Mr.Ramanand Agarwal,
Director,
c/o Rajesh Strips Ltd., 535/C,
Urla Industrial Area,
Raipur-482 001.
5. Mr.Rajesh Agarwal,
Director,
c/o A-11/5, SEC-3,
Udaya Society,
Tatibandh,
Raipur-492 001.
6. Mr.Niraj Kansal,
Director, No.MIG-134,
Tatibandh,
Raipur-492 001,
Chhattisgarh.
7. Mr.Gitesh Munnalal Agarwal,
Addl.Director Pratap,
5, Sawarkar Nagar,
Khamla Road,
Nagpur-440 025.
8. Mr.Anil Kumar Sharma,
Addl.Director,
Naradpura Tunga,
TEH.BASSI Distt.
Jaipur-303 301.
3 O.S.No.4890/2010
9. Mr.Suryakant Sharma,
Addl.Director,
No.120, Subhash Bose Nagar,
Kamptee Distt,
Nagpur-440 008.
10. Mr.Prahallad Sawdia,
Secretary, House No.4,
Nagar Rao Estate,
Hohaba Bazar,
Raipur-492 001,
Chhattisgarh.
11. M.R.Attri,
Senior Vice-President,
M/s.Mahamaya Steel Industries,
(Division of Rajesh Strips Ltd.,)
Pot No.B-8/99, Sector-C,
Urla Growth Centre,
Sarora,
Raipur-493 221.
Chhattisgarh.
( D.1 to D.11 - By Sri VGB Associates,
Advocate)
Date of Institution of the suit : 17/7/2010
Nature of the Suit : Recovery of money
Date of commencement of recording
of evidence : 28/5/2013
Date on which the Judgment was
pronounced : 22/2/2016
4 O.S.No.4890/2010
Year/s Month/s Day/s
Total Duration : 05 07 05
JUDGMENT
The plaintiff has filed this suit for recovery of Rs.44,52,050/- with interest at the rate of 18% p.a. from 24/6/2008 amounting to Rs.16,02,738/- till filing of the suit and also current and future interest at 18% p.a. from the date of suit till realisation; Rs.6,22,391/- towards erection of sub-station project with interest at 18% p.a. from 6/6/2008 till filing of the suit amounting to Rs.2,24,060.76/- and Rs.1,40,000/- being travelling and other expenses; for court costs and for such other reliefs.
2. The case of plaintiff in nutshell is that plaintiff is a limited company established and registered under Companies Act, doing business of electrical and engineering in the name of "M/s.New India Electricals Ltd.," since more than 30 years. Defendant No.1 is the company registered under Companies Act, 1956, 5 O.S.No.4890/2010 defendant Nos.2 to 10 are its directors and office bearers and defendant No.11 is the Senior Vice-President of defendant No.1 Company. After making preliminary enquiry about the plaintiff company, defendants started placing orders with Plaintiff Company for their requirements and their business commenced in the year 2002-2003. Initially, defendants were prompt in making payments and they were satisfied with the goods supplied by plaintiff and were making repeated orders up to 2008. Thus, there was good rapport between the parties. Plaintiff firm maintained the running account of defendants. Based on the good rapport, defendants have placed verbal orders to plaintiff and plaintiff supplied the machineries described in the plaint in a tabular form. Defendants received the goods mentioned in the invoices stated in the tabular form totally worth Rs.47,36,122/-as on 21/6/2008. Out of which, defendants paid only Rs.2,84,072/- as on 24/6/2008. Plaintiff firm was also handling supply and erection project at defendant place for sub-station wherein plaintiff supplied sub-station 6 O.S.No.4890/2010 equipments, accessories, services and erection work for development of defendants. Further, plaintiff has maintained a separate ledger account in the name of Mahamaya Steel Industries Ltd.,(Project). In the above said sub-station, defendant issued purchase order vide order No.MSI/SPO/06-07/109 dtd:7/12/2006 for a sum of Rs.1,20,00,000/- and then, issued the amended purchase order dtd:7/3/2006 for a sum of Rs.89,00,000/-. As per the amended purchase order, plaintiff has supplied the items and finished the project to the satisfaction of defendants which was also acknowledged by defendants and payment was also made from time to time. Plaintiff has produced in tabular form the electrical fittings and commissioning work done for said sub-station totally amounting to Rs.6,39,508/- out of which defendant paid only RS.17,117/-. Even after repeated reminders and requests to defendants through telephone and e-mails to clear the dues, they keep on pending since from 2008, but they have made promise to pay the amount and never keep up their words to clear the above mentioned legal 7 O.S.No.4890/2010 dues. In July 2009, plaintiff contacted defendant and made requests to supply the said dues and they assures that they will make payment within 15 days. Plaintiff sent reminders to defendants through RPAD on 3/12/2009 which was served upon defendant No.4 on 21/1/2010, but defendants have not made any payment. The director of plaintiff firm Hemansha N.Desai went to the defendant's office on several occasions to collect the dues from defendants. Every trip to Raipur was causing plaintiff Rs.35,000/- for traveling, lodging and boarding, which is borne by plaintiff and thus, defendants are liable to pay these traveling expenses also. On 27/1/2010 finally plaintiff sent an e-mail to defendants to clear the dues, but defendants have neither replied to it nor paid the dues. Hence, plaintiff issued legal notice dtd:23/2/2010 to defendant Nos.1 to 10 demanding to settle the dues. Defendant No.11 has sent an e-mail on 7/4/2010 requesting plaintiff to send the summary of outstanding payments and the statement of account to reconcile the accounts and settle the dues as the matter is long pending 8 O.S.No.4890/2010 and ready to pay genuine dues. Plaintiff sent reply to the above e-mail on 2/7/2010 by furnishing the outstanding dues. Hence, the suit for appropriate reliefs.
3. After service of suit summons, defendant Nos.1, 2 & 4 appeared through their counsel and filed their written statement. In the written statement defendant company contended that it is the first company in India to manufacture 1500 mm Joists in the private sector and it is well managed and paying its creditors regularly. Once defendants have made advance payment and plaintiff promised and assured timely delivery of equipments of electrical nature, but made delay and also supplied defective materials; defective consignment from previous customers were diverted to defendants. The damaged equipments were taken back and supplied after repairs after a considerable time. Plaintiff had to compensate defendant company for delay in supply of damaged goods and they agreed to supply the goods worth Rs.40,00,000/- for which no written order or oral orders given by 9 O.S.No.4890/2010 defendant company. This supply was compensation. On enquiry, plaintiff stated that the bills were raised for their records. There were certain other debits that defendant company raised to the tune of Rs.5,32,653/-, but the same were not credited by the plaintiff. Plaintiff also raised certain bill of Rs.8,41,310/- which were not acceptable to the defendant company and it was related to extra services on account of reinstallation of erection of defective material received after repairs. Finally, plaintiff orally agreed to forego the amount of bills alleged to be in respect of an oral order. It appears that plaintiff agreed that settlement to continue further business relations and bag order of the Defendant Company. But Defendant Company did not place any further order on account of very sad experience. Then plaintiff turned wolf from sheep clothing and indirectly threatening including murder threats. Defendants reserve their rights to file suit for delay and also for damaged supply of equipments. They denied the other averments made in the plaint regarding reputation of Plaintiff Company, its General Manger and 10 O.S.No.4890/2010 other facts. They further contended that defendant No.8 and 9 are not directors and defendant No.10 is not in employment of defendant No.1 Company. They denied the other averments regarding trading transaction between plaintiff and defendant No.1 Company. Defendant No.2 to 10 have no personal liability whatsoever with regard to the alleged claim of plaintiff. Defendants were prompt in making payment towards orders placed by them with the plaintiff. There was no running account as alleged by plaintiff. They denied the contention that they have placed oral orders to plaintiff. They further reiterated that the goods worth Rs.47,36,122/- supplied by plaintiff is free replacement/compensation for the deficiency in services and complaints regarding non-performance of the supplies made on account of manufacturing defect. Defendant No.1 is a listed company on stock exchange and has corporate governance of high level. Defendant Company never placed oral orders for capital goods. Supply was made voluntarily by plaintiff and in consideration of compensation for defective and delayed supplies. They 11 O.S.No.4890/2010 denied all other averments in the plaint. The account statement produced by plaintiff is concocted and not depicts the true picture. They denied the e-mail conversation and telephone conversation between parties regarding demand made by plaintiff for outstanding dues. They further contended that court fee paid on plaint is insufficient. Hence, prayed for dismissal of the suit with costs.
4. Defendant Nos.3, 5 to 11 have filed their separate written statement wherein they denied the entire plaint averments and contended that they are not necessary and proper parties to suit. Defendant No.8 and 9 are not directors of defendant No.1 Company and defendant No.10 is not the secretary or employee of defendant No.1 company. Defendant No.11 is not even director and is only an employee of defendant No.1 Company. They are nothing to do with the finances of 1st defendant company. Since they are residing in Raipur, Chattisgarh, the suit is 12 O.S.No.4890/2010 not maintainable in Bangalore. Hence, prayed for dismissal of suit with exemplary costs.
5. From the above facts, the following issues were framed:-
ISSUES
1. Whether the plaintiff proves that the defendants are due and liable to pay Rs.44,52,050/- towards suit transactions as claimed in the plaint?
2. Whether the plaintiff proves that the defendants are also liable to pay Rs.6,22,391/- towards supply and erection of substation project by M/s.Mahamaya Steel Industries?
3. Whether the plaintiff proves that the defendants are liable to pay interest as claimed?
4. Whether the defendants prove that the plaintiff has not only delayed the supply but also supplied defective materials as alleged?13 O.S.No.4890/2010
5. Whether the defendant No.2 to 11 proves that the suit is bad for mis-joinder of parties?
6. Whether the plaintiff is entitled for a judgment and decree as prayed for?
7. To what order or decree?
6. On behalf of plaintiff firm, the General Manager of the plaintiff firm is examined as P.W.1, got marked Ex.P.1 to Ex.P.74 and closed their side. On behalf of defendants, the Manager (Accounts) in 1st defendant company and Manager (Technical Operations of Plant) in 1st defendant company are examined as D.W.1 and 2, got marked Ex.D.1 to Ex.D.56 and closed their side.
7. Heard arguments of both sides.
[
8. Findings of this court on the above issues are:-
Issue No.1:- In the Negative;
Issue No.2:- In the Negative;
Issue No.3:- In the Negative;
Issue No.4:- In the Affirmative;14 O.S.No.4890/2010
Issue No.5:- In the Affirmative;
Issue No.6:- In the Negative;
Issue No.7:- As per the final order for the following:-
REASONS ISSUE No.5
9. This issue is considered first as it touches with the maintainability of the suit. Plaintiff has filed the suit for recovery of money based on goods supplied by plaintiff to defendant No.1 Company and erection and commissioning work done by plaintiff to defendant No.1 Company's sub- station.
10. It is alleged in the plaint that defendant No.2 to 10 are directors of defendant No.1 company and defendant No.11 is the senior vice-president of defendant No.1 company. Defendant No.11 is an employee of defendant No.1 Company and hence, he cannot be individually liable to pay the suit claim.
11. Defendants in their written statement contended that defendant Nos.8 and 9 are not present directors of 15 O.S.No.4890/2010 defendant No.1 Company. Defendant No.10 is not even the director of secretary or employee of defendant No.1 Company. Defendant No.3, 5, 6 and 7 are nothing to do with the finance of 1st defendant company.
12. Defendants have produced Form No.32 as per Ex.D.38. According to it, defendant No.2 left the defendant No.1 Company on 19/3/2012. Ex.D.39 - Form No.32 reveals that one Vinod Puri Goswami left defendant No.1 company on 12/12/2012. Ex.D.40-Form No.32 reveals that one Manish Kumar Agarwal and Ghanshyam Garg were appointed as additional directors and defendant Nos.8 and 9 have left the company w.e.f. 30/1/2010. Ex.D.41 - Form No.32 reveals that Jaswinder was appointed as Manager/secretary w.e.f. 4/1/2011 an defendant No.10 has left the said post of secretary w.e.f. 1/1/2011.
13. When suit transaction was took place between plaintiff and defendant No.1 Company, its directors or employees cannot be held personally liable to pay the suit 16 O.S.No.4890/2010 claim. Hence, defendant Nos.2 to 9 being the present or ex-directors and defendant No.11 being the employee of defendant No.1 Company, cannot be held liable to pay the suit claim. Hence, suit against defendant Nos.2 to 11 in their individual capacity is not maintainable. Accordingly, issue No.5 is answered in Affirmative.
ISSUE Nos.1,2 & 4
14. These issues are considered together as they require common discussion.
15. Admitted facts of the case are that in the year 2002- 2003, plaintiff has supplied some motors to defendant No.1 Company and defendant No.1 Company has paid the price of those motors. In the year 2006-07, 1st defendant has placed purchase order to plaintiff for sub-station project worth Rs.1,20,00,000/- through its purchase order MSI/SPO/06-07/109 dtd:7/12/2006 and subsequently, issued amended purchase order for a sum of Rs.89,00,000/- on 7/3/2006. Plaintiff has supplied the materials for erection of sub-station, erected sub-station 17 O.S.No.4890/2010 and commissioned it to 1st defendant in 1st defendant's industry situated on Raipur.
16. It is the specific contention of plaintiff that defendant No.1 placed verbal orders to plaintiff to supply motors totally worth Rs.47,36,122/-. Plaintiff has produced invoices as per Ex.P.2, 4 to 9 and lorry receipts as per Ex.P.3, 10 to 13, and P.71 towards this claim.
17. It is the specific contention of defendants that plaintiff delayed the supplies, and also supplied defective material in earlier transaction between plaintiff and defendants. The defective consignment supplied by plaintiff to its previous customers was diverted to 1st defendant, damages equipments were taken back and supplied after repairs after a considerable time. Plaintiff had to compensate the defendant company for delay in supply and damage to the goods and agreed to supply the goods worth Rs.40,00,000/- for which no written order or oral order was placed by defendant No.1; thus, plaintiff supplied goods by way of compensation. Plaintiff has 18 O.S.No.4890/2010 raised bills for their records. Finally, plaintiff orally agreed to forego the amount of bills alleged to be in respect of an oral order.
18. On perusal of the above pleadings of defendant company, it is crystal clear that defendants have not disputed the receipt of goods worth Rs.47,36,122/- from plaintiff. But, their contention is that it was supplied towards compensation, as plaintiff supplied defective goods and there was delay in supply. They deny the order placed by them. Hence, it is the initial burden of plaintiff to prove that defendant No.1 has placed verbal orders.
19. Ex.P.2 is invoice bearing No.7434 dtd:31.03.08 for the goods supplied worth Rs.20,32,657/-. Ex.P.4 is another invoice No.EX-158/08-09 dtd:20/6/2008 for the goods supplied worth Rs.4,81,754/- and it was verbal order dtd:20/6/2008 through delivery note No.533/08-09. Ex.P.5 is another invoice No.Ex-159/08-09 dtd:20/6/2008 through delivery Note No.534-08-09 for the goods supplied worth RS.3,61,545/-. Ex.P.10 is the lorry receipt 19 O.S.No.4890/2010 dated 23.06.08 issued by Divya Road lines. There is no specific averment regarding invoices or the quantity of goods supplied under this receipt or the value of the goods supplied under this receipt.
20. Ex.P.6 is another invoice No.5377/08-09 dtd:20/6/2008 for the goods supplied worth RS.2,15,101/- through dispatch document No.4603 dtd:23/6/2008 through Divya Road lines and it was an verbal order and this is the invoice Ex.P.11 is the lorry receipt dated 23.06.08 issued by Divya Road lines. There is no specific averment regarding invoices or the quantity of goods supplied under this receipt or the value of the goods supplied under this receipt.
21. Ex.P.7 is another invoice No.Ex-162/08-09 dtd:20/6/2008 for the goods supplied worth Rs.6,41,181/- through delivery Note No.542/08-09. Ex.P.12 is the lorry receipt dated 23.06.08 issued by Divya Road lines. There is no specific averment regarding invoices or the quantity 20 O.S.No.4890/2010 of goods supplied under this receipt or the value of the goods supplied under this receipt.
22. Ex.P.8 is another invoice No.Ex-163/08-09 dtd:21/6/2008 through delivery Note No.543/08-09. It is also an verbal order dtd:20/6/2008 for the goods supplied worth RS.6,18,096/- dispatched through Divya Roadines. Ex.P.13 is the lorry receipt dated 23.06.08 issued by Divya Road lines. There is no specific averment regarding invoices or the quantity of goods supplied under this receipt or the value of the goods supplied under this receipt.
23. Ex.P.9 is another invoice No.Ex-164/08-09 dtd:21/6/2008 for the goods supplied worth Rs.3,85,488/- through delivery Note No.54408-09. It was also an verbal order dtd:20/6/2008 and dispatched through Divya Road lines and this is the invoice. Ex.P.71 is the lorry receipt dated 23.06.08 issued by Divya Road lines. There is no specific averment regarding invoices or the quantity of 21 O.S.No.4890/2010 goods supplied under this receipt or the value of the goods supplied under this receipt.
24. According to Ex.P.2, the dispatch document No. is 182100 dtd:15/3/2008 and it was dispatched through Associated Road Carriers Ltd., Plaintiff has produced Ex.P.3-Transport Consignment Receipt pertaining to Ex.P.2. Ex.P.14 is the letter written by ARC Limited regarding the confirmation of delivery of materials mentioned in Ex.P.2 invoice to defendant No.1 at Raipur on 1/7/2008. On perusal of these invoices i.e., Ex.P.2, Ex.P.4, Ex.P.5 and Ex.P.6, Ex.P.8 and Ex.P.9, this court found that plaintiff has supplied motors worth Rs.20,32,957/-,Rs.4,81,754/-, Rs.3,61,545/-, Rs.2,15,101/- Rs.6,41,181/-, Rs.6,18,096/-, 3,85,488/- totally worth Rs.47,36,122/-. Thus, the goods supplied under these invoices totally worth Rs.47,36,122/-.
25. On perusal of these Ex.P.2, 3 to 9, it is clear that there was no written purchase order from defendants to supply the goods mentioned under those invoices; but 22 O.S.No.4890/2010 plaintiff contended that it was verbal order on 31/3/2008, 20/6/2008 and 21/6/2008 and same was noted in the invoices.
26. On further perusal of the above invoices i.e., invoices as per Ex.P.4 to Ex.P.9 and lorry receipts issued by Divya Road Lines as per Ex.P.10 to Ex.P.13 & 71 and the admission of defendants in their written statement and also in the evidence of D.W.1, it is crystal clear that goods mentioned in Ex.P.4 to Ex.P.9 were received by defendant No.1.
27. As per Ex.P.2-invoice, the goods were dispatched on 15/3/2008, whereas as per this document, on 31/3/2008, 1st defendant placed verbal order and as per Ex.P.14-letter written by ARC to plaintiff company that these goods were delivered to defendants on 1/7/2008 and as per Ex.D.1- invoice and admitted by P.W.1 in his cross-examination, said goods were sent by plaintiff to Balaji Loha at Raipur on 15/3/2008. The amount of the goods mentioned in Ex.D.1 is Rs.16,07,664/-; whereas the value of the goods mentioned in Ex.P.2 is Rs.20,32,957/-; whereas the value 23 O.S.No.4890/2010 of the goods mentioned in Ex.P.3 lorry receipt is Rs.15,73,539/-. This difference of value of goods mentioned in 3 documents differently was not explained by plaintiff either in the pleadings or in the evidence. However, at the time of arguments, learned counsel for plaintiff submitted that the difference amount in between Ex.D.1 and Ex.P.2 is their profit.
28. Ex.D.1 is also the sale and not a consignment transaction, because as per admission of P.W.1 in his cross-examination, plaintiff was not having any branch office in Raipur. Hence, the above documents of learned counsel for plaintiff that the difference of amount in between Ex.D.1 and Ex.P.2 is their profit margin cannot be accepted as correct.
29. As already discussed above, in the cross- examination, P.W.1 has deposed that it requires only a week or 15 days time to reach the goods from Bangalore to Raipur, but it took more than 3-½ months to reach defendant No.1. If really, defendant No.1 has placed 24 O.S.No.4890/2010 verbal order on 31/3/2008 and the goods ought to have been reached Raipur at that time; because, goods were dispatched from Bangalore on 15/3/2008 itself, then, there was no necessity for plaintiff to pay demurrages to the transport company and to keep the goods in the transport company for a period of 3 months and then deliver the same to 1st defendant. Hence, the above contention of plaintiff is apparently not admissible.
30. Plaintiff's counsel further mainly relied upon Ex.P.71 to Ex.P.73 "C" Forms. On perusal of these 'C' Forms, the invoice number mentioned in Ex.P.2 is also mentioned in Ex.P.71 along with another invoice No.7111 for Rs.2,472/-. But, this invoice number 7111 is not part of the suit transaction. There is no dispute between parties regarding this invoice No.7111 for Rs.2,472/-, but defendants disputed Ex.P.71 on the ground that there are several alterations in Ex.P.71 and contended that the counter- signature to those alterations were not the signatures of the director of the defendant company. It is to be noted here that Ex.P.72 is the 'C' Form pertaining to invoice 25 O.S.No.4890/2010 No.6167 for a sum of Rs.10,074/- i.e., pertaining to Commissioning of sub-station, the second claim of plaintiff. In Ex.P.73, the details of the invoices are mentioned on back side of the "C" Form by affixing a chit containing all the above invoice number. "C" Form as per Ex.P.73 is pertaining to 8 invoices from 20/6/2008 to 26/6/2008 and plaintiff has produced those invoices as per Ex.P.4 to Ex.P.9 and Ex.P.21. Another invoice in Ex.P.73 is not pertaining to the suit transaction.
31. Ex.P.72 is pertaining to only single invoice for a sum of Rs.10,774/-. In this invoice, the signature of director of 1st defendant company-D.K.Porwal was forthcoming only in one place and in Ex.P.73, in two places, i.e., in front side and on the back side of the document, where details of invoices are mentioned. But in these 2 documents, there were no corrections.
32. Defendants have not disputed Ex.P.72 and Ex.P.73. D.W.1 in the cross-examination admitted about Ex.P.71 to Ex.P.73. But immediately, disputes Ex.P.71. 26 O.S.No.4890/2010
33. In Ex.P.71, as already stated above, the amount of invoice No.7434 was strike off, total amount was also strike off and they were again written in words and also in figures and it contains 2 signatures of D.K.Porwal, the then director of 1st defendant company. These signatures were admitted by D.W.1. There were some chota signatures also forthcoming in Ex.P.71. D.W.1 disputes those chota signatures as the signatures of D.K.Porwal.
34. As defendant disputes Ex.P.71, plaintiffs have summoned the original copy given to CST from CST; they have given reply that they have already returned it to defendant Mahamai Steel Company. Under these circumstances, if really defendant No.1 possessed the copy of Ex.P.71, there was no problem for defendant No.1 to produce the same before the court. Plaintiff called upon 1st defendant to produce this document, but D.W.1 in his evidence deposed that it was given to Sales Tax Department and they have not retained it and he will produce the same if it is available in their office. In the 27 O.S.No.4890/2010 absence of production of such document by defendant, the court can rely upon Ex.P.71. There is nothing in Ex.P.71 to say that it is a concocted document. As there were striking of some figures, said figure is again written in words for clarification and it appears the chota signature of director of 1st defendant company are taken on corrections and full signature with seal to the amount written in words.
35. In the cross-examination, D.W.1 has deposed that only one invoice number has to be written in "C" Form in the front side, but to prove the same; defendants have not produced any proof. P.W.1 denied said suggestion. Under these circumstances, this court holds that Ex.P.71 to Ex.P.73 can be looked into for all practical purposes.
36. As already discussed above, Ex.P.71 and Ex.P.73 reveal that 'C' Forms are issued pertaining to motors supplied to defendants under Ex.P.2, Ex.P.4 to Ex.P.9.
37. Learned counsel for plaintiff vehemently submitted arguments that "C" Form will be issued only for sales and 28 O.S.No.4890/2010 not for any other purpose. Hence, "C" Forms alone cannot prove that defendant No.1 purchased motors under Ex.P.2, Ex.P.4 to Ex.P.9, Ex.P.21 by placing verbal orders and they were not supplied as compensation as alleged by defendants. It could be considered only as corroborative evidence.
38. Defendant's counsel submitted that there were several forms to submit returns. Form No.D will be submitted in respect of sales to Government, Form No.F will be submitted in respect of transaction within the company i.e., transfer to its branches i.e., consignment transfer to its own branches. Except Form No.C, there were no other forms could be issued for supply of goods as compensation.
39. This point of argument canvassed by defendant's counsel was not denied by plaintiff's counsel in his reply arguments. If any goods were transferred from State to State as replacement/compensation, there is no prescribed form under CST. If "C" Form will not be issued by the 29 O.S.No.4890/2010 purchaser and registered Dealer Company, then the seller has to pay some additional sales tax. Learned counsel for defendant argued that only to avoid payment of additional sales tax by plaintiff, as per the request of plaintiff, these "C" Forms were issued by defendant No.1 to plaintiff company.
40. The above discussion and arguments of both sides and on perusal of Ex.P.71 to Ex.P.73 and the taxation policy under CST Act, it is clear that if the goods were sold by a seller of Karnataka to registered dealer of another State i.e., if the transfer is Inter-State transfer, then, seller has to pay only the basic tax and he need not pay additional taxes. On the other hand, if the seller sells goods within the State or sells goods to any unregistered dealer, then, he has to pay additional tax. Admittedly, 1st defendant company is a registered dealer and is situated outside Karnataka; if 1st defendant company issues "C" Form, definitely, it gives tax benefit to plaintiff that means plaintiff need not pay additional tax. Hence, the arguments of learned counsel for defendants that they have issued 30 O.S.No.4890/2010 "C" Forms to plaintiff only for the benefit of plaintiff i.e., not to pay additional taxes is more probable one.
41. The further argument of learned counsel for defendant is that Defendant Company being listed company in stock exchange and being public limited company, it cannot place any verbal order for purchase of capital goods. Admittedly, Defendant Company has placed written purchase order to plaintiff in 2002-03 when 1st defendant company placed order for some motors. Likewise, 1st defendant company has placed written purchase orders as per Ex.P.20 during 2006-07 for supply, erection and commissioning of sub-station and as per Ex.P.19, it has amended the purchase order and at that time also it has given written amended purchase order. Under these circumstances, the say of plaintiff that there were only verbal orders placed by 1st defendant to supply these machineries appears to be not acceptable one.
42. Plaintiff's counsel submitted that to prove that defendants have placed orders and plaintiff supplied 31 O.S.No.4890/2010 motors under Ex.P.2, Ex.P.4 to Ex.P.9 - invoices, Plaintiff also relies upon Ex.P.16 to 18-the ledger account extracts of 1st defendant maintained by plaintiff. However, they are computer generated documents; hence, to consider it as evidence, plaintiff ought to have produced certificate required under S.65-B of Indian Evidence Act. But plaintiff has not produced the same.
43. In this regard, plaintiff's counsel has argued that certificate under S.65 B is not required. In this regard, he relied on the citation reported in AIR 2015 SC 180 between "Anwar P.V v/s P.K.Basheer and others"
wherein their Lordships held as under;-
"24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made there from 32 O.S.No.4890/2010 which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Sections 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence without compliance of the conditions in Section 65B of the Evidence Act."
44. In the above said ruling, their lordship elaborately discussed about S.65-B of the Evidence Act and when, how it is to be used. This ruling is helpful to defendants rather than plaintiff on this point.
45. Defendants disputed Ex.P.16 to Ex.P.18, Ex.P.26 to 28, Ex.P.33 and Ex.P.70 as they are not supported by S.65-B of the Evidence Act. Even said objection was raised at the time of marking the document, even then, plaintiff has not produced the certificate under S.65-B of the Evidence Act or original documents. Hence, the court cannot look into these documents. Ex.P.16 to Ex.P.18 are 33 O.S.No.4890/2010 the ledger account extracts of Mahamaya Steel Industries from 1/4/2009 to 22/1/2010 pertaining to 1st transaction. Ex.P.26 to Ex.P.28 are the ledger account extract of Mahamaya Steel Industries (Project) from 1/4/2007 to 22/1/2010. Ex.P.37 is the outstanding dues from 31/3/2008 to 21/6/2008 i.e., e-mail conversations calling upon the defendant to pay the outstanding dues pertaining to both transactions Nos.1 and 2. Ex.P.70 is the balance sheet of plaintiff containing the dues from defendants.
46. Though, the above documents cannot be looked into, as per the Ex.P.17, on 24.06.08, plaintiff has given Credit Note to defendant worth Rs.2,60,857/-. However, in the plaint, plaintiff pleaded that defendants have paid RS.2,84,072/- as on 24/6/2008. Thus, even the pleadings on this point are contrary to the recitals in Ex.P.17. Even in the cross-examination, P.W.1 has not whispered about this credit note, but only deposed that defendant has paid said amount. There is lot of difference between payment 34 O.S.No.4890/2010 and credit note. Hence, even the above ledger account extract is not helpful for plaintiff to prove its contention.
47. Ex.D.28 to Ex.D.37, Ex.D.42 to Ex.D.46 are marked subject to production of originals or certified copies as they are only the true copies. Subsequently, plaintiff has produced certified copies of Ex.D.28 to Ex.D.37 and they were marked as Ex.D.47 to Ex.D.56. Hence, as it is, Ex.D.42 to Ex.D.46 being only true copies, they cannot be looked into. But, while cross-examining D.W.1, plaintiff's counsel cross-examined on the contents of Ex.D.42 and thus, admitted said document. Hence, said document could be looked into.
48. Ex.D.42 is the certificates issued by Defendant Company for transportation of electric transformer from Raipur to Kirloskar Electric Company, Mysore for repairs. Ex.D.43 is the challan pertaining to it. Ex.D.44 is the letter written by defendant to plaintiff. Ex.D.45 is the e-mail correspondence and Ex.D.46 is the letter written by 35 O.S.No.4890/2010 defendant to plaintiff. Barring these documents, the court can look in to other documents produced by both sides.
49. Ex.D.47 to Ex.D.56 are Form E.R.1 i.e.., return of excisable goods and availment of CENVAT credit by defendants from June 2008 to March 2009.
50. In the plaint, plaintiff pleaded that out of the price of motors supplied by plaintiff to defendants amounting to Rs.47,36,122/-, defendants paid a sum of Rs.2,84,072/- as on 24/6/2008. P.W.1 has stated this fact in his affidavit evidence also. In the cross-examination, at Page No.9, P.W.1 has deposed that Rs.2,84,072/- was paid by cheque or remittance and not in cash. He further deposed that they have documents to show that said amount of Rs.2,84,072/- is shown as part of the materials supplied to defendant No.1 as shown in the plaint; he can give the details that when and how much amount was paid with regard to this amount. However, plaintiff has not produced any such document before court. Even D.W.1 was not cross-examined on this point. There is no suggestion to D.W.1 that out of the total value of the motors supplied by 36 O.S.No.4890/2010 plaintiff to defendant No.1, defendant No.1 totally paid a sum of Rs.2,84,072/-. Furthermore, as already discussed above, there is mention in ledger account extract that this amount is a credit note given by plaintiff to defendants, though said ledger account extract was not believable document as it is produced by plaintiff and it is against the plaint pleadings, it can be looked in to only for a limited purpose.
51. The above discussion reveals that plaintiff failed to produce any materials before this court to prove that defendant No.1 paid Rs.2,84,072/- towards part payment of the motor supplied by plaintiff to defendant under invoices as per Ex.P.2, Ex.P.4 to Ex.P.9.
52. It is the specific contention of defendants that there were several defects in the goods supplied by plaintiff, they were sub-standard goods and there was lot of delay in supplying it and all these facts lead to considerable loss to defendants and hence, plaintiff agreed to compensate said loss by supplying goods worth about Rs.40,00,000/-. 37 O.S.No.4890/2010
53. To substantiate its contention, defendants mainly relied upon Ex.D.2 to Ex.D.6. Ex.D.2 to Ex.D.6 were marked at the time of cross-examination of P.W.1 through confronting them. Hence, plaintiff has not disputed Ex.D.2 to Ex.D.6.
54. At the inception, P.W.1 denied the suggestion that they have supplied defective goods and other contentions of defendants, but P.W.1 admitted these documents. Ex.D.2 is the letter written by plaintiff to defendants dtd:
17/9/2008. According to this letter, plaintiff has replaced some spare items in defendant's factory, because, the trip coil was burnt, they have replaced HPA breaker and it was checked in presence of defendant's representative; the alignment of isolators of incoming bay and additional bay was also checked. This letter apparently establishes that there were some burn took place in defendant's plant and burnt items were replaced by plaintiff; plaintiff has replaced them as materials supplied by them was defective.38 O.S.No.4890/2010
55. Ex.D.3 is another letter dtd:7/10/2008 written by plaintiff to defendants wherein plaintiff requested defendant to shut down the plant for some time to inspect the plant and to know what was the reason for the burning the PTs (Potential Transformer). This letter shows that there was repeated replacement of PTs by plaintiff.
56. Ex.D.4 is Minutes of Meeting held between defendant No.1 and plaintiff on 11/10/2008 at defendant's plant. According to this minutes of meeting, the PTs installed by plaintiff at defendant's plant were damaged and the damaged PTs were sent to Bangalore for further investigation. Ex.D.5 is another letter dtd:214/10/2008 by plaintiff to defendants. In all these Ex.D.2 to Ex.D.5- letters, there is reference regarding PO No.MSI/SPO/06- 07/109 dtd:7/12/2006 for 132/11 KV sub-station. Plaintiff has produced the said P.O. as per Ex.P.20. This is the purchase order given by defendants for supply, erection and commissioning of sub-station at defendant's plant to 39 O.S.No.4890/2010 plaintiff. In Ex.D.5, there is further reference about replacement of 132 KV PTs, which was burnt on 18/10/2008. On careful perusal of all the above exhibits Ex.D.1 to Ex.D.5, it is crystal clear that the PTs supplied by plaintiff were damaged and some of them were almost completely blasted & burnt; and plaintiff has replaced them more than once.
57. In this regard, in the cross-examination after confronting these documents, P.W.1 has deposed that he does not aware whether one of the potential transformer (PT) was burst and it was dangerous to the employees working in the unit and denied the suggestion that due to failure of defective PTs, defendants sustained loss.
58. D.W.2 is the technical person i.e., technical engineer working in defendant unit during relevant period i.e., from 31/1/2008 to 7/2/2013 as Manager (Technical Operations of Plant) and afterwards, he was Technical Consultant for defendant company and he has stated in his affidavit 40 O.S.No.4890/2010 evidence in detail that how the goods supplied by plaintiff were defective and caused loss to the defendant company.
59. In the affidavit evidence, at para No.3, D.W.2 has deposed that 1st defendant company had set up a new Plant Steel Melting Shop (SMS) Division for manufacture of bloom and billets and sub-station was required to be installed for supply of power to induction furnace and this was supplied at the appropriate voltage to the furnace. Said sub-station was installed in the last week of May 2008 and it was commissioned by the plaintiff in 132/11KV main transformer and the furnace was also started. In few days the potential transformer and current transformer blasted and the same was set right.
60. In the cross-examination at para No.15, D.W.2 has deposed that 6th or 7th day of installation of sub-station, the problem in transformer commenced.
61. D.W.2 in his further affidavit evidence has deposed that when the first CTs and PTs were blasted, they were replaced by plaintiff within a span of one week; main 41 O.S.No.4890/2010 transformer also burnt out, it is due to protection system in sub-station failed.
62. In the cross-examination at para 14, this witness has clarified this point that PTs and CTs serve the purpose i.e., for metering and for protection of main transformer. In para No. 13, he had deposed that they have purchased the materials from plaintiff only for protection of said transformer.
63. In para No.5 of the affidavit evidence, D.W.2 has deposed that the components supplied for sub-station were of sub-standard quality due to which there was problem faced frequently in running the furnace. In the cross-examination, at Para No.12, this witness has deposed that CT, PT, breaker, control panel and all sub- station materials sent by plaintiff were of sub-standard goods He has deposed that when they received those goods, apparently, they were intact, but when they put them into use, they came to know that they are of sub- standard goods.
42 O.S.No.4890/2010
64. Evidence of D.W.2 further reveals that PTs and CTs were blasted, burnt several times and caused loss to the defendants and they were fatal to the employees who were working in the plant.
65. In the further cross-examination, at para No.16, D.W.2 has deposed that plaintiff has replaced 132 KV side CTs and PTs within 3-4 months; during that 3-4 months period, SMS was working but not smoothly and according to him, it was not giving optimum results.
66. D.W.1 in the cross-examination at para 11 has deposed that there was production from June 2008 to March 2009 and it was more than minimum, but it was not up to the optimum level i.e., they intend to produce 10,000 MT but they produced only 2,000 MT during that period as per charts produced by him.
67. Defendants have produced E.R.-1 charts as per Ex.D.47 to Ex.D.56. Ex.D.47 is Form E.R.-1 for June 2008 and Bloom quantity cleared in that month is 140.020 M.T. Ex.D.48 is Form E.R.-1 for July 2008 and Bloom quantity 43 O.S.No.4890/2010 cleared in that month is 3128.890 M.T. Ex.D.49 is Form E.R.-1 for August 2008 and Bloom quantity cleared in that month is 7.410 M.T. and 6990.870 M.T. Ex.D.50 is Form E.R.-1 for September 2008 and Bloom quantity cleared in that month is 47.530 M.T. and 5739.895 M.T. Ex.D.51 is Form E.R.-1 for October 2008 and Bloom quantity cleared in that month is 118.880 M.T. and 6001.570 M.T. Ex.D.52 is Form E.R.-1 for November 2008 and Bloom quantity cleared in that month is 163.270 M.T. and 7550.240 M.T. Ex.D.53 is Form E.R.-1 for December 2008 and Bloom quantity cleared is in that month is 0.000. Ex.D.54 is Form E.R.-1 for January 2009 and Bloom quantity cleared in that month is 2948.260 M.T. Ex.D.55 is Form E.R.-1 for February 2009 and Bloom quantity cleared in that month is 5.060 M.T. and 5515.710 M.T. Ex.D.56 is Form E.R.-1 for March 2009 and Bloom quantity cleared in that month is 3570.290 M.T. and 3596.640 M.T.
68. On careful perusal of all these exhibits and the oral evidence of D.W.1 and 2, it is clear that the defendants intended to manufacture Blooms and Billets in their plant 44 O.S.No.4890/2010 and it required sub-station for regulating electricity. During June 2008 defendant cleared Bloom and Billet 140.020 M.T. During July 2008, it was enhanced to 3128.890. During August 2008 defendant cleared Bloom and Billet 7.410 M.T. and 6990.870 M.T. During September 2008 defendant cleared Bloom and Billet 47.530 M.T. and 5739.895 M.T. During October 2008 defendant cleared Bloom and Billet 118.880 M.T. and 6001.570 M.T. During November 2008 defendant cleared Bloom and Billet 163.270 M.T. and 7550.240 M.T. During December 2008 defendant cleared Bloom and Billet 0.000. During January 2009 defendant cleared Bloom and Billet 2948.260 M.T. During February 2009 defendant cleared Bloom and Billet 5.060 M.T. and 5515.710 M.T. and during March 2009 defendant cleared Bloom and Billet 5.060 M.T. and 5515.710 M.T.
69. This chart shows that only in the month of August 2008, there was higher manufacturing and clearing of Bloom and Billet, but that is also not up to the optimum level. There are several variations in manufacturing and 45 O.S.No.4890/2010 clearing these Blooms and Billets during this period from June 2008 to March 2009.
70. Defendants have produced Electricity Tariff book, electricity bills and receipts for the period from June 2008 to March 2009 as per Ex.D.7 to Ex.D.27. Ex.D.7 is the Electricity Tariff book. Ex.D.8 is the electricity bill for June 2008 amounting to Rs.1,08,72,120/-and Ex.D.18 is the electricity receipt for payment of said amount. Ex.D.9 is the electricity bill for July 2008 amounting to Rs.2,11,58,593/- and Ex.D.19 is the electricity receipt for payment of said amount. Ex.D.10 is the electricity bill for August 2008 amounting to Rs.1,82,86,370/- and Ex.D.20 is the electricity receipt for payment of said amount. Ex.D.11 is the electricity bill for September 2008 amounting to Rs.1,58,16,224/- and Ex.D.21 is the electricity receipt for payment of said amount. Ex.D.12 is the electricity bill for October 2008 amounting to Rs.1,58,10,127/- and Ex.D.22 is the electricity receipt for payment of said amount. Ex.D.13 is the electricity bill for 46 O.S.No.4890/2010 November 2008 amounting to Rs.1,69,73,127/- and Ex.D.23 is the electricity receipt payment of for said amount. Ex.D.14 is the electricity bill for December 2008 amounting to Rs.1,85,51,602/- and Ex.D.24 is the electricity receipt for December 2008 for said amount. Ex.D.15 is the electricity bill for January 2009 amounting to Rs.1,07,50,479/- and Ex.D.25 is the electricity receipt for payment of said amount. Ex.D.16 is the electricity bill for February 2009 amounting to Rs.1,51,85,588/- and Ex.D.26 is the electricity receipt for payment of said amount. Ex.D.17 is the electricity bill for March 2009 amounting to Rs.1,95,73,586/- and Ex.D.27 is the electricity receipt for payment of said amount.
71. On perusal of these electricity bills and receipts, it is clear that defendant No.1 was spending huge amount towards payment of electricity for each and every month. Hence, if the plant is stopped even for one day or so, then defendant No.1 definitely would sustain huge loss.
72. As per the requests made by plaintiff to defendant No.1 as stated in Ex.D.2 to Ex.D.5, plaintiff repeatedly 47 O.S.No.4890/2010 requested defendant to shut down the plant to verify the defect in CTS and PTs and also in the main transformer. This shows that definitely there was loss to defendants. Though Ex.D.42 was not admissible, but plaintiff's counsel cross-examined D.W.1 on Ex.D.42. Ex.D.42 is the certificate to send transformer to Kirloskar Electric Company for repairs and for test. Hence, that document can be looked in to. Because of failure of CTs and PTs, Transformer was also damaged and hence, for its repairs, defendants had sent back the main transformer to Kirloskar Electric Company, Mysore. In that regard, plaintiff has confronted Ex.P.74-letter to D.W.1 and he admitted it and hence, it was marked as Ex.P.74. This letter is dtd:10/6/2008. According to this letter, defendant informed Kirloskar Electric Company Limited regarding trouble in transformer. It is not in dispute that the sub- station commenced its work in the end of May 2008, on 10/6/2008 itself, i.e., within a span of fortnight, the main transformer was sent back to Kirloskar Company for 48 O.S.No.4890/2010 repairs and this was mainly due to fault in CTs and PTs, supply, erection and commissioned by plaintiff.
73. It was suggested to D.W.1 that commissioning was not covered under purchase order for sub-station and only supply and erection was covered, but it was denied by D.W.1. On perusal of Ex.P.20 - purchase order as already discussed above, supplying, erection and commissioning are all covered under Ex.P.20. Hence, when plaintiff has produced it, it cannot dispute said document. This shows that supply, erection and commissioning was of plaintiff's responsibility and because, it supplied some sub-standard goods, CTs and PTs were blasted, which caused damaged to the main transformer and thus, main transformer was also sent back to Kirloskar Electric Company for repairs.
74. D.W.2 in the cross-examination has deposed that about a week after they sent back the original transformer to Kirloskar Company, they have commenced the work with the assistance of stand-bye transformer. If defendant was not having stand-bye transformer, 49 O.S.No.4890/2010 definitely, it would have sustained much more loss, because, it took lot of time to repair the original transformer. This fact also substantiated the contention of defendants that they sustained loss because of improper supply, erection, commissioning of sub-station by plaintiff.
75. It is the main argument of plaintiff's counsel that defendants have not explained that the goods delivered under which invoice were defective; what was the quantum of those goods, price of those goods. He submitted that as per S.102 of the Evidence Act, it is the burden of defendants to prove that plaintiff supplied defective goods and it is not the burden of plaintiff.
76. As already discussed above, it is the initial burden of plaintiff to prove that defendants have placed orders for which plaintiff supplied goods. If plaintiff discharges said burden, then the burden shifts upon defendants to prove that the goods supplied under Ex.P.2, Ex.P.4 to Ex.P.9 is only as compensation and not purchased by them. As 50 O.S.No.4890/2010 discussed above, plaintiff withstood the material documents i.e., bank statement to show that defendants have paid advance amount for purchase of motors under Ex.P.2, Ex.P.4 to Ex.P.9. Furthermore, in the cross- examination, at page No.20, P.W.1 admitted that plaintiff company is ISO company. In the earlier cross- examination, at Page No.10, he admitted that ISO company cannot accept the verbal orders. It is also not in dispute that Defendant Company is a listed company. The motors supplied by plaintiff to defendants under Ex.P.2, 4 to 9 are required to run the Sub-station smoothly. Hence, they are capital goods. Hence, defendant cannot place verbal orders. Under these circumstances, the contention of plaintiff that defendants have placed verbal orders is not acceptable one. At the same time, as already discussed above, defendants have produced materials before court to show that CTs and PTs supplied by plaintiff were blasted and caused loss to them. Though there is no specific averment about the actual loss, as defendants have not filed the suit claiming 51 O.S.No.4890/2010 compensation, they need not prove the actual loss. It is sufficient if defendants prove that they sustained loss to a considerable extent.
77. Further plaintiff's counsel vehemently argued that there is no material produced by defendants to prove that the goods supplied by plaintiff were defective, but P.W.1 in the cross-examination, at page No.20, admitted the minutes of meeting as per Ex.D.2. He volunteered that the defect was set right. The meaning of said evidence is that plaintiff have supplied defective materials.
78. The above discussion reveals that though plaintiff proves that it has supplied goods under Ex.P.2, Ex.P.4 to Ex.P.9 to 1st defendant under various invoices totally amounting to Rs.47,36,122/-, plaintiff failed to prove that defendants have placed orders to supply the said goods.
79. Second Claim of plaintiff:- Plaintiff has produced invoices as per Ex.P.21 to Ex.P.24. Ex.P.30 is the lorry receipt for having supplied goods under Ex.P.21 pertaining to 2nd claim.
52 O.S.No.4890/2010Ex.P.21 is the invoice bearing No.5299 dtd:6/6/2008 for a sum of Rs.1,98,900/-, Ex.P.22 is the service bill dtd:22/7/2008 bearing invoice No.ST-5 for a sum of RS.3,95,108/-, Ex.P.23 is the service bill dtd:22/7/2008 bearing invoice NO.ST-6 for a sum of Rs.39,326, Ex.P.24 is the invoice dtd:6167/08-09 for a sum of Rs.10,074/- as per the verbal order placed with Mr.Anil Singh. Thus, the total amount covered under Ex.P.21 to Ex.P.24 is Rs.6,43,408/-, but plaintiff claimed Rs.6,39,508/- and contended that out of this amount, Rs.17,117/- was paid by defendants and the balance amount is Rs.6,22,391/-.
80. Plaintiff relied on Ex.P.26 to Ex.P.28-ledger account extract, but while discussing 1st claim, this court already held that ledger account extracts were not certified by plaintiff as required under S.65-B of Evidence Act and cannot be looked into. Hence, even this ledger account extracts are also not certified under S.65-B of Evidence Act and thus, cannot be looked into. Furthermore, as discussed above, Ex.P.20-purchase order given by 1st defendant to plaintiff includes supply, erection and 53 O.S.No.4890/2010 commissioning of the unit. While discussing the 1st claim, this court elaborately discussed that the motors supplied by plaintiff i.e., CTs, PTs, breaks and other materials supplied by plaintiff were damaged and hence, plaintiff replaced them. While replacing them, plaintiff has to again commission the project. For this commissioning, plaintiff has prepared these invoices as per Ex.P.22 and Ex.P.23. But, this servicing (commissioning) was already included in the earlier purchase order and at the same time, because of the defects in the goods supplied by plaintiff, plaintiff has replaced them and it is its responsibility to commissioning the replace articles properly in 1st defendant plant. Hence, viewed from any angle, plaintiff is not entitled to claim the amount mentioned under Ex.P.22 and Ex.P.23 invoices.
81. The goods supplied under invoices as per Ex.P.21 and Ex.P.24, electrical fittings and terminal connectors at transformers, PT connectors at PT Terminals, Post Insulator at Post Insulator. These are the articles required 54 O.S.No.4890/2010 for commissioning the sub-station at defendant's plant. As discussed above, earlier articles were defective. Plaintiff has only replaced these articles mentioned in Ex.P.21 and Ex.P.24 and hence, plaintiff cannot claim the price for supplying these goods. Hence, viewed from any angle, plaintiff is not entitled to claim the amount mentioned in Ex.P.21 to Ex.P.24.
82. Third claim of plaintiff:- Third claim of plaintiff relates to travelling expenses of its director Hemansha N.Desasi. It has pleaded that he requires Rs.35,000/- per visit to defendant's plant which includes traveling, lodging, boarding, etc. Plaintiff contended that Hemansha N.Desai traveled 4 times i.e., from 1/5/2009 to 6/5/2009, from 14/9/2009 to 17/9/2009, from 18/11/2009 to 21/11/2009 and from 23/12/2009 to 25/12/2009 from Bengaluru to Raipura. Defendants disputed the visit of Hemansha N.Desai to their plant only for demanding balance amount. Said Hemansha N.Desai has not come forward to give evidence.
55 O.S.No.4890/2010
83. P.W.1 in the cross-examination at page No.18, has deposed that he did not accompany Hemansha N.Desai, the director of Plaintiff Company to Raipur; Hemansha N.Desai met one Mr.Agarwal in Raipur who is one of the directors of defendant company. He denied the suggestion that the date shown in Ex.P.40 does not tally with Ex.P.42 regarding date of travelling by Hemansha N.Desai. Ex.P.40 is the Invoice of Travel Air Pvt.Ltd., dtd:
15/12/2009 stating that Mr.Desai Nipul traveled from Bangalore to Hyderabad and then from Hyderabad to Raipur on 26/12/2009. Thus, according to this document, Desai might have left the Bangalore only on 26/12/2009;
whereas in legal notice and also in the plaint, plaintiff pleaded that from 23/1/2009 to 25/12/2009 this Hemansha N.Desai was in Raipur. If Hemansha N.Desai was in Raipur upto 25/12/2009, it was not possible for him to travel from Bangalore to Raipur on 26/12/2009.
Hence, apparently, Ex.P.40 is contrary to the plaint pleadings and demand made by plaintiff in the legal notice.56 O.S.No.4890/2010
84. Furthermore, when plaintiff failed to prove that the defendants have purchased the goods mentioned under Ex.P.2, Ex.P.4 to Ex.P.9, Ex.P.21 to Ex.P.25 and took service of plaintiff and defendant No.1 company is liable to pay the said amount; then the question of reimbursement of traveling expenses does not arise. Hence, this travelling bills or invoices produced by plaintiff as per Ex.P.35 to Ex.P.41 are not helpful for plaintiff to prove its contention.
85. Plaintiff has issued legal notice dtd:23/12/2010 as per Ex.P.42 to all the defendants and it was served upon some of the defendants as per Ex.P.43 to Ex.P.50. Again, plaintiff issued another legal notice dtd:30/4/2010 to some of the defendants and it was served upon some of them. Plaintiff has produced the office copy of this legal notice as per Ex.P.51, reply by Postal Department as per Ex.P.52 to Ex.P.54, unserved postal cover as per Ex.P.55. Plaintiff has produced the certificate of posting receipt as per 57 O.S.No.4890/2010 Ex.P.57 and registered post postal receipt as per Ex.P.58 to Ex.P.67.
86. As already discussed above, Ex.P.68 to Ex.P.70 could not be looked into as certificate under S.65-B of Evidence Act was not produced.
87. D.W.1 in the cross-examination admitted that they purchased goods and admitted about Ex.P.71 to Ex.P.73 in his cross-examination as discussed above elaborately. Except this admission, nothing was elicited in the cross- examination of D.W.1.
88. The above discussion clearly reveals that plaintiff failed to prove that the defendants are due and liable to pay Rs.44,52,050/- and Rs.6,20,391/-. Accordingly, Issue Nos.1 and 2 are answered in Negative. Defendants prove that plaintiff has supplied defective materials. Accordingly, issue No.4 is answered in Affirmative.
ISSUE NO.3
89. In view of finding on issue Nos.1, 2 ,4 and 5, this court holds that plaintiff is not entitled for interest as 58 O.S.No.4890/2010 claimed in the plaint. Accordingly, Issue No.3 is answered in Negative.
ISSUE NO.6
90. In view of findings on issue Nos.1 to 5, this court holds that plaintiff is not entitled for judgment and decree as prayed for. Accordingly, issue No.6 is answered in Negative.
ISSUE NO.7
91. In view of findings on issue Nos.1 to 6, this court proceeds to pass the following:-
ORDER Suit is dismissed with costs.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in the open Court on this the 22nd day of February, 2016).
(K.B.GEETHA) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.59 O.S.No.4890/2010
ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Jatinshah
b) Defendants' side :
DW-1 - Rishikesh Dixit D.W.2 - Anil Singh II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Resolution passed by the Board
Ex.P.2 Tax invoice dtd:31/3/2008
Ex.P.3 Transport consignment
dtd:15/3/2008
Ex.P.4 to Tax invoices
Ex.P.9
Ex.P.10 to Transport Lorry Receipts
Ex.P.13
Ex.P.14 Letter issued by Transport
Authority dtd:10/7/2010
Ex.p.15 Letter for having delivered the
goods by XPS Cargo
Ex.P.16 Copy of the ledger account extract
of defendant
Ex.P.17 & 2 ledger account extract of
Ex.P.18 defendant company
Ex.p.19 Amended purchase order
Ex.P.20 Initial purchase order
dtd:7/12/2006
Ex.P.21 Tax invoice
Ex.P.22 & Service sheets
Ex.P.23
Ex.P.24 Another tax invoice dtd:
10/12/2008
Ex.P.25 Consignment note
60 O.S.No.4890/2010
Ex.P.26 Ledger extract of defendant
pertaining to the project work
Ex.P.27 & Ledger extract of defendant
Ex.P.28
Ex.P.29 to e-mails sent by plaintiff to
Ex.P.32 defendant
Ex.P.33 Office copy of letter sent by
plaintiff
Ex.P.34 Postal acknowledgment for having
sent Ex.P.33
Ex.P.35 Credit copy for having spent money
in order to go to pace of defendant
Ex.P.36 Copy for having paid the traveling
and other expenses of the
defendant
Ex.P.37 Credit copy
Ex.P.38 Another credit copy
Ex.P.39 Another credit copy statement
Ex.P.40 and Invoices
Ex.P.41
Ex.P.42 Office copy of legal notice
Ex.P.43 to Postal acknowledgments
Ex.P.50
Ex.P.51 Complaint given by plaintiff to the
Postal Department
Ex.P.52 to Reply given by postal authorities
Ex.P.55 for having served the notice
Ex.P.56 Postal cover containing notice
Ex.P.57 UCP
Ex.P.58 to Postal receipts
Ex.P.67
Ex.P.68 E-mail reply given by senior
president of plaintiff
61 O.S.No.4890/2010
Ex.P.69 Reply given by plaintiff to
defendant
Ex.P.70 Balance sheet of plaintiff company
Ex.P.71 Lorry receipt No.4603
(Marked dtd:23/6/2008 issued by Divya
twice) Road Lines (marked on
28/5/2013)
"C" Form issued by defendant
(marked on 22/7/2015)
Ex.P.71(a) & Signatures
(b)
Ex.P.72 & "C" Forms
Ex.P.73
Ex.P.74 Letter written by Mahamaya Steel
Industries to Kirloskar Electric
Company Ltd., dtd:10/6/2008
(b) Defendants' side : -
Ex.D.1 Invoice dtd:17/3/2008
Ex.D.2 Letter dtd:17/98/2008(Minutes of
Meeting)
Ex.D.3 Letter dtd:7/10/2008
Ex.D.4 Minutes of Meeting dtd:
11/10/2008
Ex.D.5 Letter dtd:24/10/2008
Ex.D.6 Letter dtd:3/11/2008
Ex.D.7 Copy of authorization letter
Ex.D.7(a) Original authorization letter
Ex.D.8 Tariff schedule
Ex.D.9 to power bills
Ex.D.17
Ex.D.19 to receipts pertaining to said power
Ex.D.27 bills
Ex.D.28 to True copy of 10 Form ER1
Ex.D.37
62 O.S.No.4890/2010
Ex.D.38 to Form No.32
Ex.D.41
Ex.D.42 True copy of letter dtd: 12/6/2008
Ex.D.43 True copy of challan
Ex.D.44 True copy of letter dtd:23/9/2008
Ex.D.45 E-mail dtd:20/10/2008
Ex.D.46 Copy of letter sent by defendant
No.1 to plaintiff dtd:16/9/2008
Ex.D.47 to 10 Form E.R.-1
Ex.D.56
(K.B.GEETHA)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
GVU/-