Bangalore District Court
Dairy Classic Ice Creams Pvt. Ltd. A ... vs Sri. Jayanth on 9 December, 2021
1
Com.O.S.No.2293/2019
In the Court of LXXXIV Addl. City Civil and Sessions
Judge (CCH-85) (Commercial Court), Bengaluru
Dated this the 9th December 2021
Present: Smt.H.R.Radha B.A.L., LL.M.
LXXXIV Addl. City Civil and Sessions Judge,
(CCH-85 Commercial Court) Bengaluru
Com.O.S.No.2293/2019
Plaintiff: Dairy Classic Ice Creams Pvt. Ltd. A Private
Limited Company incorporated and having its
Registered office at No.55, 8th Main,
J.C.Industrial Estate, Yelachenahalli,
Kanakapura Road, Bengaluru - 560062
Represented by its authorized signatory Mylu
Swamy C.
(By Sri.Dinesh S.Kadlas, Advocate)
Vs
Defendant: Sri. Jayanth, Proprietor, M/s Mathrushree
Distributors, Behind IJV Hall, R.C.Road,
Hassan - 573201
(By Sri.H.S.Manjunath Murthy,
Advocate)
Date of Institution 21-03-2019
Nature of the suit Recovery of money
Date on which First Case
Management Hearing took 25-10-2021
place
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Com.O.S.No.2293/2019
Date of Commencement
of recording of evidence 12-11-2021
Date on which judgment 09-12-2021
pronounced
Time taken for disposal YEARS MONTHS DAYS
1) Total duration 02 08 19
2) From the date of first
case management 00 01 15
hearing
LXXXIV Addl. City Civil & Sessions Judge
(CCH-85 Commercial Court) Bengaluru
JUDGMENT
This is a suit for recovery of Rs.19,38,401/- from the defendant with further interest at 12% p.a. and direction to return 18 freezers.
2. This suit was transferred from CCH-27 to CCH-83 (Commercial Court) by notification dated 17.08.2020 and then to this court, by a subsequent notification dated 22.12.2020.
3. The plaintiff's case in brief is that they are a company involved in the manufacture and sale of Ice cream and frozen desserts in Karnataka and neighbouring states. The 3 Com.O.S.No.2293/2019 defendant is one of their distributor since 2004. As on 28.03.2018, he owed Rs.17,38,882/- towards the supply made under invoices dated 08.03.2018, 12.03.2018, 15.03.2018, 21.03.2018, 24.03.2018, 26.03.2018 and 28.03.2018. He is bound to return 18 freezers supplied by them; they have documents relating to three freezer and other documents are not traceable due to laps of time. The defendant having sent email dated 16.02.2018 indicating his intention to quit as the distributor and undertaking to clear the dues before doing so. Inspite of the same and issuance of legal notice dated 30.01.2019 through RPAD, he neither paid the amount nor replied the notice.
4. The defendant has filed the written statement contending that the suit is not properly instituted, as the person who has signed the plaint has not authority. As a distributor of the plaintiff since 2004 he promoted their products in and around Hassan district by investing huge amount. The plaintiff requested him to supply their products in Chikmagaluru district. After he invested for the same, they asked him to not to supply the products on the ground that they had found another distributor in Chikkamagaluru. During February 2018, the plaintiff abruptly demanded that 4 Com.O.S.No.2293/2019 he should stop marketing in Hassan district too. 4(a). That the decision of the plaintiff affected his business. He could not supply the products to various sellers in the regular manner or collect the bills due. The materials supplied on credit to various business concerns also remained unpaid due to non supply of required materials. When the plaintiff was consulted, they wanted him to furnish the bills and statement of account from 2004. He is not liable to pay the amount claimed in the suit or the interest; the claim is exaggerated. By email dated 16.02.2018 he informed the plaintiff the decision of not to continue as their distributor and that he would clear the dues. The freezer in his possession were taken back by the plaintiff's executive by name Palaksha Shetty. He had deposited amount with the plaintiff at the time of placing order for the freezers and the same still lies with the plaintiff. He has incurred lakhs of rupees for marketing the products of the plaintiff and therefore not liable to pay any amount or interest as claimed. The court in Bengaluru has no jurisdiction. The plaintiff has not valued the 18 freezers or paid court fee thereon; and the suit should be dismissed. 5
Com.O.S.No.2293/2019
5. Based on the above pleadings, XII Additional City Civil and Sessions Judge, Bengaluru (CCH-27) has framed the following :
ISSUES
1. Whether the plaintiff proves that the plaintiff is entitled to recover of Rs.19,38,401/- with interest at the rate of 12% p.a. from the defendant?
2. Whether the plaintiff proves that he is entitled to recover 3 freezers from the defendant?
3. What order or decree?
6. The Manager and the authorized representative of the plaintiff has filed affidavit in lieu of examination in chief, examined himself as Pw1 and got marked Ex.P1 to P33. The defendant has neither cross examined Pw1 nor adduced any evidence.
7. Heard arguments of the learned counsel for the plaintiff. The defendant has not addressed arguments.
8. My findings on the above issues are:
Issue No.1: Partly in the Affirmative Issue No.2: In the Affirmative Issue No.3: As per final order for the following 6 Com.O.S.No.2293/2019 REASONS
9. Issue No.1: The claim of the plaintiff that they are a company involved in manufacturing and sale of Ice Cream and frozen desserts in Karnataka and neighbouring states, the defendant was their distributor since 2004 is not denied in the written statement. In fact, the defendant specifically contends that he has promoted the plaintiff's products in Hassan district since 2004, by investing time, money and energy.
10. Order XXIX Rule 1 CPC provides that in suits by or against a corporation pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case. Pw1 states that he is authorized by the resolution of the plaintiff company and he is aware of the facts and circumstances of the case.
11. Ex.P1 is the certified true copy of the resolution dated 05.02.2019 authorizing Pw1 to file complaints, proceedings and/or original suits before the civil/criminal court in the state of Karnataka and to accept the service of any summons or other legal process on behalf of the company; to appear on behalf of the company in civil and criminal 7 Com.O.S.No.2293/2019 courts within the territorial jurisdiction of the courts for the said purpose and to declare and affirm, file affidavits, memos etc., in connection with recovery of money against the defendant. The evidence of Pw1 and the contends of Ex.P1 authorizing him to file the suit and depose on behalf of the plaintiff, thus has remained uncontraverted.
12. Pw1 states that the plaintiff supplied products worth Rs.17,38,882/- to the defendant and the same was transported from Bengaluru to Hassan through vehicle mentioned in the respective invoices at Ex.P2, P4, P6, P8, P10, P12, P14 and P33. The plaintiff has generated E-way bills, Ex.P3, P5, P7, P9, P11, P13 and P15 for supplying the products under the above invoices.
13. The defendant has not specifically denied supply of the plaintiff's products as above. Nor is it the case that he refused to receive the materials supplied under Ex.P2, P4, P6, P8, P10, P12, P14 and P33 and sent them back. Pw1 has reiterated that despite repeated reminders demanding payment of Rs.17,38,882/-, the defendant has failed to pay the amount. Ex.P17 and Ex.P19 go to show that Ex.P16, one such reminder sent through RPAD was duly served on the defendant.
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Com.O.S.No.2293/2019
14. The defendant has stated in the written statement that by email dated 16.02.2018 he intimated the plaintiff about the intention to not continue as the distributor and to clear the balance by the time he quits. Ex.P31, the email dated 16.02.2018 sent by the defendant from his mail Id [email protected] to the plaintiff at [email protected] with copy to [email protected] is extracted as it is:
"Respected Sir, from fast several years I was distributor for dairyday ice cream family since from past 1 and half year it is not working out for me so I have decided to stop the distribution by next month 15th. So you can find the distributor or I can find a distributor, I will clear the whole balance by the time of quitting."
The plaintiff has produced the certificate in terms of Section 65B of the Indian Evidence Act at Ex.P32 in proof Ex.P31.
15. By sending the email the defendant not only acknowledged the supplies made by the plaintiff but also bound himself to pay the cost of the same. However, there is nothing on record to show that the defendant paid the 9 Com.O.S.No.2293/2019 balance amount to the plaintiff as undertaken in Ex.P31. Therefore, the legal notice Ex.P24 dated 30.01.2019 appears to have been issued by the plaintiff demanding payment and it was duly served as evidenced from Ex.P25 to P27.
16. Ex.P28 is the ledger account extract pertaining to the defendant which speaks about supplies made under Ex.P2, P4, P6, P8, P10, P12, P14 and P33. It also reflects the payments made by the defendant on various dates between 02.03.2018 and 31.03.2018 amounting to Rs.26,56,726/- as against Rs.43,95,608.36/-, leaving the balance at Rs.17,38,882/-. The correctness of the entries in Ex.P28 has also remained unchallenged.
17. Having contended that the plaintiff asked him to supply the products in Chikamagaluru district, that he incurred expenses towards the same, the plaintiff asked him abruptly to stop the business in Hassan district and thereby caused loss towards, the defendant has not chosen to enter the witness box to speak about the same or to cross examine Pw1 to elicit any evidence in support of such contention. Therefore, I have no reason to disbelieve the evidence of Pw1 that the defendant is due a sum of 10 Com.O.S.No.2293/2019 Rs.17,38,882/- to the plaintiff towards the products supplied.
18. The plaintiff has claimed interest at 12% p.a., on the outstanding amount of Rs.17,38,882/-. The invoices at Ex.P2, P4, P6, P8, P10, P12, P14 and P33 do not provide for levying interest on delayed payments. Even the plaintiff has not demanded any interest on the balance payable, in the letter at Ex.P16 dated 14.08.2018 or the legal notice at Ex.P24. Nor is there any acceptable documentary evidence to establish the claim that there was an agreement to pay interest at 12% on delayed payments.
19. In the above circumstances, I am of the considered opinion that the defendant having accepted the plaintiff's products supplied under Ex.P2, P4, P6, P8, P10, P12, P14 and P33, despite sending the email Ex.P31 expressing the intention to quit, is liable to pay Rs.17,38,882/- to the plaintiff with simple interest at 9% p.a. from the date of suit till the date of payment and also the cost of the proceedings. The issue for consideration is accordingly answered.
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Com.O.S.No.2293/2019
20. Issue No.2: The plaintiff has sought for a direction to the defendant to return 18 freezers supplied by them. However, the claim was restricted to three freezers during the course of arguments and even issue No.2 was accordingly amended. The defendant contends in the written statement that plaintiff's official by name Palaksha Shetty has taken back all the freezers and he is not in possession of any freezer. But no attempt is made to substantiate the said contention by entering the witness box. As such the defence in this behalf does not merit any consideration. Ex.P20 to P22 are the three freezer placement agreements dated 09.09.2016 entered into with the defendant and Ex.P23 is the Dealer Data Form; they bear the dealer i.e., the defendant's signature. In the absence of contest by the defendant and for want of acceptable evidence regard return of freezers, I constrained to hold that the defendant is bound to return the three freezers supplied to him under Ex.P20 to P22. Accordingly the issue for consideration is answered in the affirmative.
21. Issue No.3: The defendant had taken the specific contention that the courts in Bengaluru do not have jurisdiction to try the suit and filed a memo to that effect. It 12 Com.O.S.No.2293/2019 was rejected by CCH-27 by order dated 10.06.2019, relying on the judgment in M/s Instruments Incorporated, Bangalore Vs Ms. Industrial Cables (India) Limited, Rajpura, Punjab & Anr., 1996 (3) Kar.L.J 422B wherein it is held that a suit for recovery of the cost of supplies is maintainable within the jurisdiction of the court where the party dispatches the goods to the place of purchaser. The said order has attained finality.
22. The suit was initially before CCH-27 when the defendant filed the written statement. It was later withdrawn and assigned to CCH-83, Commercial Court and then to this court, considering the nature of transaction and the specified value of the subject matter of dispute. Therefore the defence that the plaint ought to be rejected for want of jurisdiction merits no consideration.
23. The plaintiff has sought for return of three freezers but not paid court fee thereon. It is not the case of the plaintiff that the freezers are not capable of valuation. Section 23 of the Karnataka Court Fee and Suits Valuation Act provides that in a suit for recovery of movable property, the suit should be valued on the market value of the movable property. Therefore the plaintiff shall file a fresh valuation 13 Com.O.S.No.2293/2019 slip indicating the market value of three freezers and pay court fee on such value, within a week.
24. Issue No.3: In the result, I pass the following:
ORDER Suit of the plaintiff is decreed with cost.
The plaintiff entitled to recover from the defendant a sum of Rs.17,38,882/- with simple interest at 9% p.a. from the date of suit till the date of realization.
The plaintiff shall file a fresh valuation slip indicating the market value of three freezers and pay court fee on such value as provided U/s 23 of the Karnataka Court Fees and Suits Valuation Act, within a week from this day.
Office to draw decree only
thereafter.
Issue copy of the judgment to
the parties through e-mail as
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Com.O.S.No.2293/2019
provided U/o XX Rule 1 of CPC if mail
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 9th day of December 2021) (H.R.Radha) LXXXIV Addl.City Civil and Sessions Judge, (CCH-85 Commercial Court) Bengaluru ANNEXURE List of witnesses examined for the Plaintiff:
Pw1 Myluswamy C. List of documents marked for the plaintiff:
Ex.P1 Cc of true copy of resolution dt.05.02.2019 Ex.P2 Invoice dated 08.03.2018 Ex.P3 E-way bill Ex.P4 Invoice dated 12.03.2018 Ex.P5 E-way bill Ex.P6 Invoice dated 15.03.2018 Ex.P7 E-way bill Ex.P8 Invoice dated 21.03.2018 Ex.P9 E-way bill Ex.P10 Invoice dated 24.03.2018 Ex.P11 E-way bill Ex.P12 Invoice dated 26.03.2018 Ex.P13 E-way bill Ex.P14 Invoice dated 28.03.2018 15 Com.O.S.No.2293/2019 Ex.P15 E-way bill Ex.P16 Copy of the letter dt.14.08.2018 Ex.P17 Postal receipt Ex.P18 Postal acknowledgment Ex.P19 Postal track consignment report Ex.P20 to P22 Freezer placement agreements Ex.P23 Dealer data Form Ex.P24 Copy of legal notice dt. 30.01.2019 Ex.P25 Postal receipt Ex.P26 Postal acknowledgment Ex.P27 Postal track consignment report Ex.P28 Ledger A/c extract from 01.03.18 to31.03.18 Ex.P29 Cc statement of accounts Ex.P30 Copy of Certificate of Incorporation Ex.P31 Email correspondence Ex.P32 Certificate U/s 65B of the Evidence Act Ex.P33 Invoice dated 26.03.2018 List of witnesses examined for the defendant: NIL List of documents marked for the defendant: NIL (H.R.Radha) LXXXIV Addl.City Civil and Sessions Judge, (CCH-85 Commercial Court) Bengaluru.