Bangalore District Court
Sri. T.B.Joshi vs ) M/S. Caps And Cans on 7 November, 2019
IN THE COURT OF XXII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU (C.C.H.No.7).
Dated: This the 7th day of November, 2019
:Present:
Smt.Maheshwari.S.Hiremath, B.A.,LL.B.(Spl.)
XXII Addl. City Civil & Sessions Judge.
Bengaluru.
O. S. No.945/ 2015
Plaintiff Sri. T.B.Joshi,
S/o T.B.Balakrishnan,
Aged abut 54 years,
Proprietor of M/s. Samyukta Polymers,
A Proprietary concern having its office at:
No.1, 1 /2, 1st floor, 1st cross,
H.Siddaiah Road, Wilson Garden,
Bangalore-560 027
(By Sri.Ganesh Bhat.Y.H, Advocate)
Vs.
Defendants 1) M/s. Caps and Cans, (A partnership firm),
No.2, 600/ 676, Nanjundaiah Industrial Eastate,
Opp: IIM, Bilekahalli, Bannerghatta road,
Bangalore-560 076, Rept by its Managing Partner,
Mr.R.Ravishankar
And also represented by its partner:
a) Mr.Sridhar,
b) Mr.Ramprasad
c) Mr. S.N.Ananda Rao
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O.S.No.945/2015
2) Mr.R.Ravishankar, Major, s/o S.Raju,
Managing Partner of M/s.Caps and Cans, No.2,
600/ 676, Nanjundaiah Industrial Eastate, Opp:
IIM, Bilekahalli, Bannerghatta road, Bangalore-
560 076,
And residing at:
Mr.Ravishankar, Major, S/o S.Raju, No.301-03,
Adarsh Hill, Kumaraswamy Layout, Bangalore-
560 078
3) Mr.Sridhar, Major, S/o S.N.Ananda Rao,
Partner of M/s. Caps and Cans, No.2, 600/ 676,
Nanjundaiah Industrial Eastate, Opp: IIM,
Bilekahalli, Bannerghatta road, Bangalore-560
076,
And residing at:
Mr. S.A.Sridhar, S/o S.N.Ananda Rao, A-27, 31 st
'A' Cross, 7th block, Jayanagar, Bangalore
4) Mr. Ramprasad, Major, Father's name not
known to the plaintiff, partner of M/s. Caps and
Cans, No.2, 600/ 676, Nanjundaiah Industrial
Eastate, Opp: IIM, Bilekahalli, Bannerghatta road,
Bangalore-560 076,
5) Mr.S.N.Ananda Rao, Major, Father's
name not known to the plaintiff, partner of M/s.
Caps and Cans, No.2, 600/ 676, Nanjundaiah
Industrial Eastate, Opp: IIM, Bilekahalli,
Bannerghatta road, Bangalore-560 076,
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O.S.No.945/2015
And residing at:
Mr. S.N. Ananda Rao, A-27, 31st 'A' Cross, 7th
block, Jayanagar, Bangalore.
(By Sri. P.K.V.P for D.1(c), 5
Sri. Y.K.N.S for D.1(a), (b), D.2, 3 and D.4
Date of institution of suit 29.01.2015
Nature of the suit Money recovery
Date of commencement of
recording of evidence 18.03.2017
Date on which Judgment was 07.11.2019
pronounced
Total duration Years Months Days
04 09 08
*****
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O.S.No.945/2015
JUDGMENT
This suit is filed for recovery of money for a sum of Rs.5,53,165/- along with interest at the rate of 24% per annum.
2. Brief facts of the case is as under:-
The plaintiff being the proprietor of M/s. Samyukta Polymers is engaged in commercial activities of manufacturing and sale of precision plastics components etc. The defendant Nos.1, as informed by the defendants Nos.2 to 5 to the plaintiff, is a partnership firm concern represented by its partners, the defendant Nos.2 to 5 is carrying on business/ commercial activities.
3. The defendants being its regular customers since the year 2009, pursuant to the purchase orders placed by the defendants with it representing, assuring, promising and undertaking to make prompt payment of the sale value, the plaintiff had sold, supplied and delivered to the defendants the products in respect of which they had placed orders for the sale value mentioned in the invoices payable 5 O.S.No.945/2015 within the stipulated date mentioned in the said respective invoices subject to the terms and conditions mentioned in the said invoices.
4. The plaintiff had sold the products under the invoices aforementioned to the defendants subject to the term that in case of delay in making payment of the sale value beyond the stipulated date, defendants shall be liable to pay interest at 24% per annum by accepting the terms of sale stipulated by the plaintiff, the defendants had accepted the delivery the products sold and delivered by the plaintiff vide the said invoices and acknowledged the same.
5. Subsequent to the purchase of the products under the invoices aforementioned, while the defendants had made only part payment in respect of sale, supply and delivery made, failed to pay the entire sale value in respect of the said invoices and the interest accrued thereon inspite of numerous demands in person, over phone and in writing made by the plaintiff and thereby committed breach of the promises, assurances and undertaking given while placing the purchase orders as well as taking delivery of the products. The defendants have made use 6 O.S.No.945/2015 of the products sold by the plaintiff in their commercial/ business activities and thus while made wrongful gain, enriched themselves, by not making payment of dues to the plaintiff caused wrongful loss to the plaintiff.
6. The plaintiff by granting time up to 31.03.2014 to the defendants to make payment of the dues, caused legal notice dated. 10.03.2014 to the defendants calling upon the defendants to make payment of Rs.13,49,144/- comprising of principal amount and interest due as on 31.03.2014 and demanded that in case of non- payment, further interest at the rate of 24% per annum with effect from 31.03.2014 on the respective principal amount from the dates of respective invoices shall be payable till the date of payment.
7. The plaintiff has issued legal notice dt. 10.03.2014 and same was duly served on the defendants, but they have not replied nor paid the dues. Subsequent to issuance of said notice, while the defendants have paid dues in respect of invoices bearing N 1056/2011-12, 1098/2011-12, 1124/2011-12 and paid dues in part in respect of 7 O.S.No.945/2015 invoice bearing No. 1139/2011-12 in a sum of Rs.1,88,553/- failed to pay the balance principal amount in respect of the said invoice and the entire principal amount due in respect of invoice No.158/ 2012-13 and also the interest amount due and payable by them.
8. By utilizing the products sold by the plaintiff, but not making payment of the entire dues the defendants have made wrongful gain and caused loss to the plaintiff. Hence, they are liable to pay interest at the rate of 24% per annum from the date of sale and supply of products till realization, the transaction being commercial. As on 05.01.2015, the defendants are jointly and severally liable to pay the total sum of Rs.5,53,165/-. Hence, this suit.
9. In pursuance of the suit summons, defendants have been appeared before the Court through their respective counsels and filed separate written statements.
Written statement of defendants No.1(c) and 5 is as under:-
They have denied some of the averments narrated in the plaint as false. According to them, defendants Nos.5 and 1(c) is not a partner 8 O.S.No.945/2015 of M/s. Caps and Cans and not entered in the partnership agreement/ deed to register the same before competent authority. There is no any agreement made between defendant No.5 and plaintiff in the said transaction. Hence, prayed to dismiss the suit with costs.
10. Written statement of defendant Nos.2 and 3 is as under:-
They have denied some of the averments narrated in the plaint as false. According to them, the entire amount due to the plaintiff was paid through cheque bearing No.181792 drawn on Axis Bank in favour of Samyukta polymers of which the plaintiff who is a proprietor of concern for Rs.7,42,259/-. The said Cheque was sent by the defendant to the plaintiff and same has been encashed on 26.04.2014. The plaintiff has not furnished entire accounts between the parties.
11. The Debit Notes have not been sent to the defendants at any time and the same have been created for the purpose of the case. There was no agreement to pay any interest much less at 24% per annum. After the receipt of the legal notice dated. 10.03.2014, the 9 O.S.No.945/2015 partners of the defendant No.1 met the plaintiff and discussed the matter and the parties reconciled the accounts and found that a sum of Rs.7,42,259/- was due towards the entire balance payable by the defendants on the account of the defendant No.1 to the plaintiff. After arriving at the said figure, the defendants have sent a cheque No. 181792 for Rs.7,42,259/- drawn on Axis Bank in full settlement of the claim and the said cheque was encashed by the plaintiff on 26.04.2014 without any objection. Hence, nothing is due from the defendant to the plaintiff.
12. Whenever the raw materials were supplied by the plaintiff to the defendant No.1, there use to be purchase order sent by the defendant No.1 to the plaintiff and invoices sent by the plaintiff to the defendant and the amount under all the invoices have been paid by the defendants to the plaintiff. The plaintiff has received the amount due under all the invoices/ bills, without collecting any interest.
13. The plaintiff and defendant No.1 had transactions regarding the purchase of raw materials by the defendant No.1 from the plaintiff 10 O.S.No.945/2015 since about 2012. The suit is barred by Limitation. The defendants have closed their business on account of various reasons. When they closed down the business whatever the balance due from the defendants to the plaintiff was settled and paid through aforesaid cheque. Hence, prayed to dismiss the suit with costs. Defendants Nos.1 and 4 have adopted the written statement filed by defendants Nos.2 and 3.
14. On the above pleadings, my Predecessor-in-Office had framed the following:
:Issues:
1. Whether the plaintiff proves that, plaintiff has supplied goods to defendants as per purchase orders?
2. Whether the plaintiff proves that, plaintiff is entitled to receive a sum of Rs.82,557/- towards goods sold to defendants?
3. Whether plaintiff proves that, defendants are liable to pay Rs.4,65,608/- by way of interest @ 24% per annum till 05.01.2015, on the principal amount?
4. What order or Decree?11
O.S.No.945/2015
15. At this stage, considering the pleadings of both the parties, it is necessary to recast the issues as under:-
Recasted issues:-
1) Whether the plaintiff proves that defendants owe him suit claim amount of Rs.5,53,165/- towards supply of goods?
2) Whether the plaintiff is entitled for the relief as sought for?
3) What order or decree?
16. To prove the case, Manager- Accounts of plaintiff's firm is examined as P.W.1 and got marked 15 documents as per Exs.P1 to P15. On the other hand, defendants Nos.1(c) and 2 are examined as Dws.1 and 2 and got marked 2 documents as per Exs.D.1 and Ex.D.2.
17. Heard argument.
18. My findings on the recasted Issues are as under:
Issue No.1:- In the Affirmative
Issue No.2:- In the Affirmative
Issue No.3 :- As per Final Order,
for the following:-
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O.S.No.945/2015
:REASONS:
19.My findings on issue Nos.1 and 2:- Both these issues are taken up together for discussions, as they are inter-related.
Pw.1 Shashikumar Menon has reiterated the contents of the plaint averments during the course of his examination-in-chief. During the course of his cross-examination, he has stated that, there is no separate agreement about the rate of interest at 24% per annum. He has not produced any document of purchase order and bills to show that, items were already delivered to the defendants.
Further he has stated regarding transaction between them in respect of materials, partnership firm, cheque for Rs.7,42,259/- and production of bills.
20. In support of his claim, he has produced in all 15 documents such as:-
Ex.P.1 General Power of Attorney dated. 18.02.2017 executed by Sri.T.B.Joshi, Proprietor of plaintiff Company in favour of Pw.1.
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O.S.No.945/2015
Ex.P.2 to 4 Invoices
Exs.P.5 to 12 Debit Notes
Ex.P.13 Copy of Legal notice with due
statement
Ex.P.14 Postal receipt
Ex.P.15 RPAD Card
21. Dw.1 Sri.S.N.Ananda Rao has stuck to his defence taken in the written statement during his examination-in-chief. During the course of his cross-examination, he has stated that, he does not know the plaintiff and about Caps and Can Company and he is no way concerned with this case. Defendant No.3 is residing independently.
He does not know about his occupation.
22. Dw.2 Sri. R.Ravishankar has stuck to his defence taken in the written statement during his examination-in-chief. During the course of his cross-examination, he has stated that, he has not replied to the legal notice of plaintiff. There is a business transaction with plaintiff since 2007. He used to place purchase orders on phone and plaintiff was supplying materials as per his orders. There is no 14 O.S.No.945/2015 signature of plaintiff on Ex.D.1 and that, payment towards Invoice No.158 / 2012-13 is pending.
23. In support of their defence, they have produced 2 documents such as:-
Ex.D.1 Office copy of the letter dated. 26.04.2014 Ex.D.2 Certified copy of the Axis Bank statement.
24. The plaintiff being sole proprietor of the firm M/s Samyukta Polymers raised a claim for recovery of Rs.5,53,165/- contending that, it has supplied many goods worth Rs.13,49,144/- to the defendants.
25. As against this, defendants have taken up contention that they are not liable to pay suit claim amount as they have already paid the dues while winding up their business for various reasons. In support of their contention, defendants have produced Ex.D.1/ Office copy of the letter dated. 26.04.2014 and Ex.D.2 Certified copy of the Axis Bank statement.
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O.S.No.945/2015
26. On perusal of the letter at Ex.D.1, defendants did address a letter to the plaintiff contending that, they are paying Rs.7,42,259/- by way of Cheque towards full and final settlement of claim of plaintiff. However, there is nothing on record to show that, this letter was ever served on the plaintiff. As regards Ex.D.2 bank statement, there is mention about aforesaid cheque amount and even it has been withdrawn. Plaintiff do admit receipt and encashment of cheque. But his contention is that, even after deduction of the cheque amount, the defendants owe suit claim amount.
27. On perusal of the Exs.P.2 to 4 and debit notes at Exs.P.5 to 12 they do disclose that the plaintiff firm has supplied the goods to the defendants. The documentary evidence on record is contrary to the stand taken by the defendants while claim of plaintiff is supported by documentary evidence. As against this, except the mere contention, defendants have nothing to believe Exs.P.2 to 12. It is needless to say documentary evidence would always prevail over oral testimony particularly when there is contradiction between the parties. Therefore, in my opinion, documents at Exs.D.1 and 2 would not be 16 O.S.No.945/2015 helpful for the defendants to refuse the claim of plaintiff. Therefore, I see no legal impediment to accept the claim of plaintiff for recovery of suit claim amount.
28. As far as rate of interest claimed on the suit claim amount is concerned, this is a commercial transaction which usually carries higher rate of interest than all other kind of financial transactions. Therefore, in my view interest at the rate of 24% per annum claimed by the plaintiff could not be termed unreasonable. So having regard to the above materials on record, this court arrives to a conclusion that, plaintiff has been able to establish his claim for the relief of suit claim amount. Hence, I answer these issues accordingly.
29. My findings on issue No.4: In view of the above discussions, I proceed to pass the following:
ORDER Suit is hereby decreed with costs.17
O.S.No.945/2015 Defendants are directed to pay suit claim amount of Rs.5,53,165/- (Rupees Five Lakhs Fifty Three Thousand One Sixty Five only) jointly and severally to the plaintiff within 2 months from the date of filing the suit until realization. Failing which plaintiff is at liberty to execute the Decree in accordance with law. Draw decree accordingly.
(Dictated to the Judgment Writer directly on Computer and computerised print- out taken thereof is corrected, signed and then pronounced by me in Open Court on this the 7th day of November, 2019) (Maheshwari.S.Hiremath) XXII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiffs:
Pw.1 Shashikumar Menon List of witnesses examined for defendant:
Dw.1 Ananda Rao.S.N Dw.2 R.Ravishankar
List of documents exhibited for the plaintiff/s: 18
O.S.No.945/2015 Ex.P.1 General Power of Attorney Ex.P.2 3 Invoices to 4 Exs.P.5 to 12 Debit Notes Ex.P.13 Copy of Legal notice with due statement Ex.P.14 Postal receipt Ex.P.15 RPAD Card List of documents exhibited for defendant:
Ex.D.1 Office copy of the letter dated. 26.04.2014 Ex.D.2 Certified copy of the Bank statement (Maheshwari.S.Hiremath) XXII Addl. City Civil & Sessions Judge, Bengaluru.
19 O.S.No.945/2015