Bangalore District Court
M/S.Bangalore Hydraulics vs M/S Soudagar Hydraulics on 26 November, 2021
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE LXXXVI ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.87]
Present:
Sri.SUNIL ANDANEPPA SHETTAR, B.Sc., LLB., (SPL)
LXXXVI ADDL. CITY CIVIL JUDGE
Dated this the 26th day of November, 2021
Com.O.S.No.104/2021
Plaintiff/s : M/s.Bangalore Hydraulics
Represented by its proprietor
Sri.Anil Kumar S.B.
Aged about 29 years,
B/at:No.23, 5th Main,
2nd Cross,
Near standard English School
Maheshwari Nagar,
T.Dasarahalli,
Bengaluru-560057.
(By Sri.S.K.N, Advocate)
- Vs -
Defendant/s : 1. M/s Soudagar Hydraulics
Represented by its proprietor
Mr.Ismail,
Aged about
Off.at Ward No.24, Door No.224,
Near Police Station,
Cowl Bazar, Ballari-583129.
2 O.S.No.104/2021
Also Business at:
M/s Soudagar Hydraulics Services,
Door No.179,
Tailors Street, Cowl Bazar,
Ballari-583102.
Also Business at:
M/s.Pace Engineering Services,
No.104/22(8), Moka Road,
Near Gandhinagar Market,
Ballari-583103.
(By.D.T.K.Advocate)
Date of institution
of the suit : 22.01.2021
Nature of the suit
[suit on pronote, suit : Recovery of money
for declaration and
possession, suit
for injunction]
Date of the commencement
of recording of the evidence : 29.07.2021
Date on which the
Judgment was pronounced : 26.11.2021
Year/s Month/s Day/s
Total Duration 00 10 04
(SUNIL.A.SHETTAR)
LXXXVI Addl. City Civil Judge
Bangalore.
3 O.S.No.104/2021
JUDGMENT
This is the suit filed by the plaintiff-firm against the defendant for judgment and decree directing the defendant to pay a sum of Rs.4,07,164/- (Rupees Four Lakh Seven Thousand One Hundred and Sixty Four Only) together with interest at the rate of 18% p.a from 08.02.2020 till realization.
2. The brief facts of the plaintiffs' case are as under:
That the plaintiff is a sole proprietorship concern having its office at T.Dasarahalli, Bangalore and is represented by its proprietor Sri.Anil Kumar S.B and is involved in the business for more than a decade and has clients across the state of karnataka. The defendant had approached the plaintiff and demanded for supply of hydraulics spare parts, which will be used in road construction equipments like road rollers, excavators, graders etc., and accordingly, the defendant has supplied the hydraulics spare parts as per the demand made through telephone call. The defendant had agreed to 4 O.S.No.104/2021 make the payment within fifteen days from the date of delivery of goods and the delay in payment will attract penalty. The defendant had raised a demand for spare parts on various dates worth Rs.11,15,164/- in the regular course and the plaintiff had delivered the goods in time as per the convenience of the defendant. The plaintiff has also raised an invoice on 08.02.2018 towards the supply of materials and forwarded the same to the official mail of the defendant. The defendant after acknowledging the same has made the part payment of Rs.7,08,000/- and the balance amount is Rs.4,07,166/-. Inspite of reminder and communication, the defendant has failed to make the balance payment. The defendant also stopped responding to the mail sent by the plaintiff and also refused to make payment on one or the other false reasons and therefore, the plaintiff got issued legal notice on 24.02.2020 through registered post calling upon him to pay the balance amount and though the legal notice was duly served, the defendant has failed to make the payment and reply to the notice.5 O.S.No.104/2021
3. The plaintiff had initiated pre-institution mediation before the District Legal Services Authority, Bangalore urban in PIM No.315/2020 and the said petition came to be closed as non-starter on 07.11.2020. Hence, on these grounds the plaintiff has prayed to decree the suit.
4. The cause of action for the suit is mentioned as it arose on 08.02.2020 and 24.02.2020 when the plaintiff got issued the legal notice and also on the date when the legal notice was served upon the defendants.
5. In response to the suit summons, the defendant has appeared through its counsel and resisted the suit by filing its written statement. It is the specific case of the managing director of the defendant that he is resident of Ballari and is carrying on his business at Ballari. As per the allegations of the plaintiff in the plaint, the goods were delivered at Ballari and hence this court has no territorial jurisdiction to entertain the suit and hence the 6 O.S.No.104/2021 plaint has to be returned to the plaintiff for presentation before the proper court.
6. It is also the case of the defendant that there is no admitted document to establish the claim of the plaintiff. The suit is based on untenable and illegal allegations and the same is speculative and vexatious. The defendant has raised an objection with respect to the maintainability of suit itself. The defendant had placed order for spare parts from several vendors including the plaintiff with advance payments and hence, there is no credit business with the plaintiff. If any purchases were made by the defendant from the plaintiff, they were purchased only after making payment either in cash or through bank transfer. It is further contended that the defendant has not received any notice of pre-institution mediation from DLSA Banglore, Urban.
7. The allegations made by the plaintiff against the defendant are all denied in toto. The invoices relied upon by the plaintiff are all denied and disputed. It is further 7 O.S.No.104/2021 contended that in the month of October, 2019 the plaintiff started making frivolous claims for payment and the same was denied by the defendant. The plaintiff without furnishing any documents has issued a false and baseless legal notice. The plaintiff taking undue advantage of the purchase made by defendant on cash has instituted the suit. The suit has to be dismissed for suppression of materials facts. On these grounds the defendant has prayed to dismiss the suit by imposing compensatory cost of Rs.1,00,000/- by invoking sec.35 (A) of C.P.C.
8. On the basis of the pleadings of the respective parties and the materials available on record, the following issues were framed:
1. Whether the proprietor of the plaintiff proves that the defendant had purchased goods worth Rs.11,15,164/- as contended in para No.4 of the plaint?
2. Whether the plaintiff further proves that the defendant has failed to pay the price of the goods and is due to pay a sum of Rs.4,07,164/-?
3. Whether this court has territorial jurisdiction to entertain the suit? 8 O.S.No.104/2021
4. Whether the suit is maintainable?
5. Whether the defendant is entitled for compensatory costs?
6. Whether the plaintiff is entitled to the reliefs sought for?
7. What order or decree?
9. The plaintiff in order to prove its case has got examined one of its partner as P.W.1 and got marked the documentary evidence, which are at Ex.P.1 to Ex.P.35.
10. The defendant in order to substantiate its claim has got examined its managing partner as D.W.1.
11. The advocate for the plaintiff has filed his written argument on the main suit. Having heard the arguments of the counsel for the plaintiff and considering the pleadings of the respective parties, as well as the oral and documentary available on record I answer the above issues as under:
Issue No.1 : In the Affirmative.
Issue No.2 : In the Affirmative.9 O.S.No.104/2021
Issue No.3 : In the Affirmative.
Issue No.4 : In the Affirmative.
Issue No.5 : In the Negative Issue No.6 : Partly in the Affirmative. Issue No.7 : As per final order for the following;
REASONS
12. Issues No.1, 2 and 6: Since all these issues require common discussion, they will be taken up together for discussion in order to avoid repetition of facts.
It is the specific case of the plaintiff that it had supplied hydraulics spare parts to the defendant on various dates worth Rs.11,15,164/- as per the requirement of the defendant and had raised an invoice dated 18.02.2018 and forwarded the same through mail. The defendant acknowledging the receipt of invoice has made a payment of Rs.07,08,000/- but has failed to pay the balance amount of Rs.04,07,164/- which is claimed in the present suit with interest.
10 O.S.No.104/2021
13. On the other hand the defendant had denied and disputed all the claims made by the plaintiff and has taken a specific contention that whatever purchases have been made by him is on payment of cash and there are no dues to be paid to the plaintiff.
14. As per the averments of the plaint, the transaction between the plaintiff and the defendants is for recovery of money for the materials said to be supplied by the plaintiff to the defendant and hence, the nature of the transaction is commercial as defined U/s 2 (1) (c) of the Commercial Courts Act, 2015 and the specified value of the subject matter of the suit as defined U/s 2 (c) (I) of the said act is more than Rs.3,00,000/- (Three Lakhs Rupees Only) and hence, this court has jurisdiction to entertain the suit.
15. The plaintiff had also initiated pre-institution mediation before the District Legal Services Authority, Bangalore Urban by moving an application on 05.10.2020 as required under the provisions of Commercial Courts Act and the authority has issued non starter report. As 11 O.S.No.104/2021 per the report the notice was duly served upon the defendant and since the defendant has failed to appear and response the case is treated as non starter.
16. The partner of the plaintiff in order to substantiate his claim has got examined himself as P.W.1 and has reiterated the averments of the plaint and got marked the documentary evidence, which are at Ex.P.1 to Ex.P.35. Ex.P.1 to Ex.P.22 are the various invoices raised by the plaintiff against the defendant. Ex.P.23 is the statement of account with respect to the transactions made by the plaintiff with the defendant. Ex.P.24 are the copies of 9 email correspondences between the plaintiff and the defendant. Ex.P.25 is the copy of reply given through mail dated 18.10.2019. Ex.P.26 is the ledger extract of invoice received through mail. Ex.P.27 is the copy of acknowledgment sent to the transporter through mail. Ex.P.28 is the document in three pages to show that GST has been paid. Ex.P.29 to Ex.P.35 are the copy of the legal notice dated 24.02.2020, postal receipts, postal acknowledgment and returned postal cover. 12 O.S.No.104/2021
17. Admittedly there is no written agreement between the plaintiff and the defendant for supply of hydraulic spare parts. Though the defendant has denied the purchase of hydraulic spare parts and the claim made by the plaintiff, it can be gathered from the oral and documentary evidence available on record that the defendant is engaged in the business with the plaintiff from the year 2016. At this stage it is relevant to go through the cross examination of D.W.1, who happens to be the managing partner of defendant No.1. His cross- examination dated 31.08.2021, discloses that the defendant No.1 is a partnership firm involved in the business of hydraulics repair services and commenced its business in the year 2017. The D.W.1 in his cross- examination has stated that the defendants are engaged in the business with the plaintiff from the year 2017. It is specifically admitted in the cross examination that the defendants have transacted with the plaintiff from 15.12.2016 and they were placing orders through telephone. He has further stated that the plaintiffs were 13 O.S.No.104/2021 supplying the materials through SRS courier service and since the materials were defective, they started receiving the materials physically and the plaintiff has failed to replace the defective materials. He has further admitted that initially they used to make payments through bank and through cash. Hence, the cross examination of D.W.1 clearly reveals that the defendant had transactions of purchasing the hydraulics spare parts from the plaintiff by placing orders through telephone.
18. The specific claim of the plaintiff is that the defendants have purchased goods worth Rs.11,15,164/- and out of which the defendants have paid a sum of Rs.07,08,000/- and are due in a sum of Rs.04,07,164/-. As already stated above the defendants have disputed the claim of the plaintiff and contended that whatever materials have been purchased by them is on payment of cash. In order to appreciate the rival contentions of the parties it is necessary to go through the cross- examination of D.W.1 dated 31.08.2021 at para No.2 which is as under:
14 O.S.No.104/2021
"Out of Rs.11,15,164/- we have made payments of Rs.4,07,164/- by way of cash and remaining of Rs.7,08,000/- through bank to the plaintiff. Ex.P.23 does not bear my signature. It is true to suggest that after receiving the materials, the same will be uploaded in the GST portal. The cash payments of Rs.4,07,164/- made by me is reflected in the invoices. I am able to provide the payments made through online as well as by way of cash as mentioned in Ex.P.1 to Ex.P.22. I have not produced any documents to show the payment made by cash and payment made through online. We have received all the goods mentioned in Ex.P.1 to Ex.P.22. It is true to suggest that as per email communication which are at Ex.P.24 to Ex.P.31 the plaintiff has claimed an amount of Rs.4,07,164/- and we have replied for the same.
I am not able to furnish the documents pertaining to GST of the defendant. I am able to furnish the account details pertaining to transaction 15 O.S.No.104/2021 with the plaintiff. Ex.P.33 does not bear my signature. It is false to suggest that the signature on my affidavit filed in lieu of examination-in-chief and the signature on Ex.P.23 are one and the same. It is false to suggest that since I have not made the balance payment of Rs.4,07,164/- the presence suit has been instituted."
19. The above said admissions given by the D.W.1 in his cross-examination reveals that the defendant had purchased the materials worth Rs.11,15,164/- and has made payment of Rs.7,08,000/- through bank to the plaintiff. When such being the facts of the case the burden is upon the defendant to prove the payment of Rs.4,07,164/- by way of cash to the plaintiff. As already discussed above the transaction between the plaintiff and the defendant have been taken place through telephone and email communications. The Information Technology Act has recognized email contracts as legally valid and binding. The act particularly mentions that a contract cannot deemed invalid solely on the basis of it being an 16 O.S.No.104/2021 online exchange of offer and acceptance. In order to enforce the email contract, the party relying upon it and satisfy that the terms and conditions of the contract must be agreed to buy both the parties and the intention to create a legally binding contract must be present. Apart from these two requirements the vital elements of consideration must be agreed upon. Sec.10A of the Information Technology Act recognizes email contracts. Sec.10A of the IT Act is as under:
"where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form by means of an electronic form or by means of an electronic record, such contract shall not be deemed to be unenforceable solely on the ground such electronic form or means was used for that purpose."
17 O.S.No.104/2021
20. As already discussed above the transaction between the plaintiff and the defendant is through mail correspondence and telephone communication. Hence, on going through the oral and documentary evidence available on record and the admissions given by the D.W.1 in his cross examination, it is crystal clear that the defendant has purchased the materials from the plaintiff worth Rs.11,15,164/- as mentioned in Ex.P.1 to Ex.P.22. As per the statement of account maintained by the plaintiff the defendant is liable to pay the balance amount of Rs.4,11,164/-, whereas the defendant claims that he has paid the said amount through cash. In reality the defendant has admitted the purchases of materials worth Rs.11,15,164/-. The defendant has not placed any materials to show that he has paid the balance amount of Rs.4,07,164/- by way of cash. Ex.P.27 being the acknowledgment of transporter through email is sufficient to hold that the goods are delivered to the defendants. Apart from that the D.W.1 himself as admitted that the materials as per Ex.P.1 to Ex.P.22 has been received by 18 O.S.No.104/2021 the defendants. In fact the defendant in his reply as per Ex.P.25 has not denied the mateirals supplied by the plaintiff but has asked for details of bills and invoices from the plaintiff. Thereafter the plaintiff has supplied the particulars of the bills and invoices, but the defendant has failed to make the payment as per the said invoice.
21. At this point of time it is necessary to go through the ledger account maintained by the plaintiff and the copy of the same is at Ex.P.23. The D.w.1 in his cross-examination has stated that Ex.P.23 does not bear his signature, but on perusal of the signature of the D.W.1 on vakalath, pleadings and comparing the same with the signature on Ex.P.23, it appears to be same. The learned counsel for the plaintiff has relied upon the judgment of the Hon'ble Madras High Court in K.Palaniappan V/s C.Kandasamy, wherein the power of the court to compare the signatures on the documents as per Sec.73 of the Indian Evidence Act has been discussed. I have gone through the said judgments and by invoking Sec.73 of the Indian Evidence Act, even on comparison of the signature 19 O.S.No.104/2021 of D.W.1 on his pleadings and the signature appearing on Ex.P.23 appears to be same.
22. The learned counsel for the plaintiff has also relied upon various judgments in K.Palaniappan V/s C.Kandasamy, T.S.Murugesam Pillai V/s Manickavasaka Desika Gnana Sambanda Pandra Sannadhi and others, (1929) 31 BOMLR 721, 1953 AIR 225 & 1953 SCR 758, AIR 1958 MP 129, In the High Court of Madras S.A.No.228 of 2008 P.Gnanambal V/s S.Indiradevi and the High Court of Punjab and Haryana CR No.992/2016 (O&M Sushila alias Sheela V/s Charan Kaur and other). I have gone through the said judgments and made applicable the principles laid down in the said judgments to the case on hand.
23. The learned counsel for the defendant his argument has also relied upon various judgment i.e., the judgments reported in (1998) 4 SCC 549, Bhandari Construction Co V. Narayan Gopal Upadhye, (2007) 3 SCC 163, 2005 (83) DRJ 140 and (2008) 2 Bom CR 155 and the principles laid down in the said citations are not at all 20 O.S.No.104/2021 disputed. The D.W.1 having admitted the purchase of materials as per Ex.P.1 to Ex.P.22 and has failed to provide satisfactory and cogent materials to prove the payment of balance amount by way of cash is bound to pay the suit claim. On factual aspects the case on hand and the facts and circumstances of the above said judgments relied upon by the counsel for defendant are totally different and hence, the said judgments will not come to the rescue of the defendant.
24. The plaintiff has claimed interest at the rate of 18% p.a from 08.02.2020 till realization. Admittedly there is no agreement between the parties with respect to the rate of interest. Considering the nature of the transaction the interest claimed by the plaintiff at 18% p.a is exorbitant. Under the facts and circumstances of the case interest at the rate of 9% p.a. from 08.02.2020 till realization is proper and appropriate. Hence, the defendant is liable to pay future interest at 9% p.a from 08.02.2020 of suit till realization. Hence, on going through the oral and documentary evidence available on 21 O.S.No.104/2021 record the plaintiff has proved issues No.1 and 2. Hence, I answer the issues No.1 and 2 in the 'Affirmative' and issue No.6 'Partly in the Affirmative'.
25. Issue No.3 and 4:- The defendant has raised a contention with respect to the maintainability of the suit and the territorial jurisdiction. As per the pleadings of the respective parties the plaintiff firm is situated at Bangalore and the defendant firm is at Bellari. The plaintiff firm has supplied the materials from Bangalore to the defendant. All the invoices raised by the plaintiff are at Bangalore and the payments made by the defendant is also to the account of the plaintiff at Bangalore. Since the part of cause of action for the plaintiff to institute the suit has arisen at Bangalore, this court has territorial jurisdiction to entertain the suit. No satisfactory explanation is given by the defendant with respect to the contention taken on maintainability of the suit and territorial jurisdiction. Considering the pleadings of the respective parties and the nature of the transaction taken place between the parties to the suit, it is this court which 22 O.S.No.104/2021 has territorial jurisdiction and the suit is perfectly maintainable in this court. Hence, I answer issues No.3 and 4 in the 'Affirmative'.
26. Issue No.5:- The defendant by denying the claim of the plaintiff has sought for compensatory cost. In order to claim the compensatory cost from the plaintiff the defendant has to establish that the claim of the plaintiff is false or vexatious. This court has already come to conclusion that the plaintiff has proved and established that it has supplied materials to the defendant and the defendant is liable to pay the balance outstanding as claimed in the plaint. Hence, under such circumstances and since the defendant has failed to established that the claim of the plaintiff is false and vexatious. Hence, I answer issue No.5 in the 'Negative'.
27. Issue No.7:- Since I have answered issues No.1 to 4 in the 'Affirmative', issue No.6 'Partly in the Affirmative' and issue No.5 in the 'Negative', I proceed to pass the following;
23 O.S.No.104/2021
ORDER The suit of the plaintiff against the defendant is hereby decreed with costs.
It is hereby ordered and decreed that the defendant is liable to pay to the plaintiff a sum of Rs.4,07,164/- (Rupees Four Lakh Seven Thousand One Hundred and Sixty Four Only) together with interest at the rate of 9% P.a from 08.02.2020 till realization.
Draw the decree accordingly.
[Dictated to the stenographer, online transcribed & computerized by her, corrected on computer and signed by me then pronounced in the Open Court, dated this the 26th day of November, 2021] (SUNIL.A.SHETTAR) LXXXVI Addl. City Civil Judge Bangalore.
24 O.S.No.104/2021ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
P.W.1 : Anilkumar S.B List of documents marked on behalf of the plaintiff/s:
Ex.P.1 : Invoice dated 18.12.2016 Ex.P.2 : Invoice dated 15.03.2017 Ex.P.3 : Invoice dated 21.04.2017 Ex.P.4 : Invoice dated 25.04.2017 Ex.P.5 : Invoice dated 07.05.2017 Ex.P.6 : Invoice dated 19.05.2017 Ex.P.7 : Invoice dated 03.06.2017 Ex.P.8 : Invoice dated 15.06.2017 Ex.P.9 : Invoice dated 15.06.2017 Ex.P.10: Invoice dated 16.06.2017 Ex.P.11: Invoice dated 24.04.2017 Ex.P.12: Invoice dated 09.08.2017 Ex.P.13: Invoice dated 11.08.2017 Ex.P.14: Invoice dated 20.09.2017 Ex.P.15: Invoice dated 24.09.2017 Ex.P.16: Invoice dated 25.09.2017 Ex.P.17: Invoice dated 01.10.2017 Ex.P.18: Invoice dated 25.11.2017 Ex.P.19: Invoice dated 11.12.2017 Ex.P.20: Invoice dated 01.01.2018 Ex.P.21: Invoice dated 10.01.2018 Ex.P.22: Invoice dated 02.02.2018 Ex.P.23: Statement of account 25 O.S.No.104/2021 Ex.P.24: Copies of 9 emails correspondence Ex.P.25: Copy of reply given through mail dated 18.10.2019 Ex.P.26: Ledger extract of invoice received through mail Ex.P.27: Copy of acknowledgment sent to the transporter through mail Ex.P.28: Document in three pages to show that GST has been paid Ex.P.29: Copy of the legal notice dated 24.02.2020 Ex.P.30 to Ex.P.32: Three postal receipts Ex.P.33 & Ex.P.34: Two postal acknowledgments Ex.P.35: Returned postal cover.
List of witnesses examined on behalf of the defendant/s:
D.W.1 : S.Mohammad Ismail List of documents marked on behalf of the defendant/s :
- NIL-
LXXXVI Addl. City Civil Judge Bangalore.