Bangalore District Court
M/S Peenya Industrial Gases Pvt.Ltd vs M/S Anz International Manufacturing ... on 16 October, 2020
IN THE COURT OF THE XXXVIII ADDITIONAL CITY
CIVIL & SESSIONS JUDGE AT BANGALORE
CITY(CCH39)
Dated this the 16th Day of October 2020
Present
Sri Devanand Puttappa Nayak B.A., LL.B.,(Spl.)
XXXVIII Addl. City Civil & Sessions Judge, Bangalore City.
Original Suit No.654/2010
Plaintiff:
M/s Peenya Industrial Gases Pvt.Ltd., A
Company incorporated under the
Companies Act, 1956, and having its
registered office at: 8, 8th Main, Mathikere
Extension, Bengaluru560 054.
represented by its Special Power of
Attorney holder Mr.K.Gopinath
[by advocate Ms.A.Yogasree]
/ Vs. /
Defendants:
1. M/s ANZ International Manufacturing Private
Limited having its registered office at No.40,
Dabaspet Industrial Area, Yedehalli village,
Nelamangala Taluk, Bangalore562 111
represented by its Directors
2. M/s ANZ International Manufacturing Private
Limited having its Corp. office at No.A322, 3 rd
Main,2nd Stage, Peenya Industrial Estate,
Bangalore560 058 represented by its Directors
3. M/s ANZ International Manufacturing Private
Limited having its Admn. office at No.2011,
Black Pearl Business Centre, 2 nd Floor, 100
2 O.S.No.654/2010
Ft.road, Indiranagar, Bangalore560 038
represented by its Directors
4. Mr.Rakesh Vashee Kishorbhai, Major, Director,
M/s ANZ International Manufacturing Private
Limited, R/o B3, 705, White house, 15 th Cross,
6th Main, R.T.Nagar, Bangalore560 032
5. Mr.Srinivas Bangera, Major, Direcotr, M/s ANZ
International Manufacturing Private Limited,
R/o No.B103, Mantri Woodlands, Arkere Gate,
BGT road, Bangalore560 076
6. Mr.Padubidre Sakharama Prabu,Major,
Director, M/s ANZ International Manufacturing
Private Limited, R/o No.200, 'Ganesh Kripa' 6 th
Cross, 5th 'A' Main, RPC Layout, Vijayanagar,
2nd Stage, Bangalore560 040
[D1 to D4 by advocate Sri K.M.R., D5 by
advocate Sri P.L.T.D6 is placed exparte]
Date of Institution of the suit : 23/01/2010
Nature of suit : For recovery of money
Date of commencement of
Evidence : 14/09/2012
Date on which the judgment
is pronounced : 16/10/2020
Years Months Days
Duration taken for disposal :
10 08 23
JUDGMENT
The Plaintiff's Company represented by its Special Power of Attorney holder has filed this suit against the defendants for recovery of money. 3 O.S.No.654/2010
2. The case of the Plaintiff's Company, as per the plaint averments, is that the Plaintiff is a Company registered under the Companies Act, having its registered office at No.8, 8th Main, Mathikere Extension, Bengaluru54 and having branch at 313, 8th Cross, IV Phase, Peenya Industrial Area,Bangalore560 058 and Plot No.76 A,SIPCOT Industrial Complex, Hosur635 126 represented by its Special Power of Attorney holder Sri K.Gopinath.
The Plaintiff further submits that Defendant No.1 is a Company registered under the Companies Act, having its registered office and its Factory; Defendant No.2 is its corporate Office; Defendant No.3 is its Administrative Office; and is represented by its Directors Defendants 4 and 5.
The Plaintiff further submits that it has been carrying the business of supplying of industrial gases and the Defendants have been making purchase of industrial gases to their 4 O.S.No.654/2010 factory from the Plaintiff's Company through its branches at Bengaluru and Hosur on credit basis in the industrial gas cylinders owned by the Plaintiff, on returnable basis after consuming the gas on trust. The Plaintiff's Company has been maintaining running account in their books of accounts in respect of purchase of gas and the payments, and cylinders supplied and returned in connection with the transaction which the Plaintiff had with the Defendants. As per the books of accounts of the Plaintiff's Company, the Defendants are due to the Plaintiff a sum of Rs.1,67,898/ excluding interest as on the date towards purchase of gas made by the Defendants and 18 empty industrial gas cylinders are due from the Defendants which were supplied to the Defendants and which are not yet returned by the Defendants.
The Plaintiff further submits that as per the mutual understanding, Invoices and trade 5 O.S.No.654/2010 terms agreed upon and trade usage and custom followed in the similar line of business, the Defendants were required to make the payment within 30 days from the date of receipts of the goods and if the amount due under the bill is not paid by the Defendants to the Plaintiff within time, the Defendants are required to pay interest at the rate of 18% per annum till the date of actual payment.
The Plaintiff further submits that as per the agreed terms of business, the Defendants are liable to pay the replacement cost of the cylinders at the rate of Rs.10,500/ with applicable 4% vat tax per empty industrial gas cylinder along with the cylinders holding charges if Defendants fail to return the empty cylinders due to whatsoever reason after consumption of gas within 7 days from respective supply. As per the agreed terms, the Defendants are also liable to pay the cylinder holding charges at the rate of Rs.5/ per day 6 O.S.No.654/2010 per cylinder from 8th day onwards from the date of respective supply.
The Plaintiff further submits that in spite of repeated requests, reminders and personal visits by the Plaintiff, the Defendants did not clear the debt and return the balance empty industrial gas cylinders due to the Plaintiff. Hence the Plaintiff issued legal notice to the Defendants dt.27.8.2009 calling upon them either return 18 empty industrial gas cylinders along with cylinder holding charges at the rate of Rs.5/ per day per cylinder amounting to Rs.18,000/ calculated from last date of supply i.e., 9.2.2009 to 27.8.2009 and to pay the balance dues of Rs.1,67,898/ along with Rs.16,560/ being interest at the rate of 18l% p.a. calculated from 9.2.2009 i.e., last day of supply up to 27.8.2009 which in all amounts to Rs.2,02,458/ or to pay the replacement cost of 18 numbers empty Industrial Gas Cylinders at Rs.10,500/ each with 4% VAT which in all 7 O.S.No.654/2010 amounting to Rs.1,96,560/ along with the cylinders rental charges, outstanding amount and interest on the due amount, altogether amounting to Rs.3,99,018/within 15 days from the date of receipt of legal notice, but despite receipt of legal notice, the Defendants failed to pay the said sum or any part thereof.
The Plaintiff further submits that it is the responsibility of the Defendants to keep the supplied cylinders in proper and safe custody and timely return the same after consuming the gas in proper condition. The total amount due by the Defendants is as follows: Amount outstanding as per Rs.1,67,898.00 the ledger of accounts towards the purchase of gas Interest at the rate of 18% p.a. Rs. 27,903.26 calculated from 09.02.2009 upto 10.1.2010 18 cylinders rental charges @ Rs.30,330.00 Rs.5/ calculated from 9.2.2009 upto 10.01.2010 Cost of 18 Oxygen Cylinders @ Rs.1,96,560.00 Rs.10,500/ with 4% VAT tax Total Rs.4,22,691.26 8 O.S.No.654/2010 Hence the plaintiff is constrained to file this suit.
The Cause of action arose for filing of this suit on 09.02.2009 when the last purchase was made by the Defendants and when the Plaintiff caused issue of a legal notice dt.27.8.2009 to the Defendants and the Defendants failed to make payment, and is continuing one. The suit is filed well in time. Hence the plaintiff requested the Court to decree the suit as prayed for in prayer column of the plaint.
3. On the other side, the defendant No.4 filed written statement and the same is adopted by Defendants 1 to 3. In the written statement filed by Defendants 1 to 4, it is contended that the suit filed by the Plaintiff is not maintainable either in law or on facts.
The defendants No.1 to 4 further submit at para 2 of the written statement that the Defendants 5 and 6 are no more Directors of 9 O.S.No.654/2010 the Defendant No.1 company and they have no role to play. The Defendants 5 and 6 have resigned and have no interest in the business transaction of the Defendant No.1. This fact is within the knowledge of the Plaintiff. Knowing fully well about this fact, the Defendants 5 and 6 are made as parties to the suit. Hence the suit is liable to be dismissed for misjoinder of parties.
At para 3 of the written statement, it is submitted by Defendants 1 to 4 that the person who has signed and verified the plaint is not a competent person and hence the same is unsustainable in the eye of law.
At para 6 of the written statement, the Defendants 1 to 4 have denied the averments made in para 6 of the plaint as false and further submit that the Plaintiff was not maintaining a running account in their book of accounts in respect of purchase of gas and payments by the Defendants. The present suit 10 O.S.No.654/2010 is filed by misrepresenting the facts and by making false allegations. Further submit that that the Defendants are liable to pay any amount to the Plaintiff. The Defendants are not withholding or retaining the empty Industrial Gas Cylinders. The Plaintiff purposely did not disclose the period from which the amounts are due. Just to escape from law, a vague statement is made that the Defendants are liable to pay a sum of Rs.1,67,898/ along with other sums.
Further the Defendants submitted that there was no mutual understanding or invoices or trade terms agreed to pay the interest. There is no privity of contract entered into between the Plaintiff and the Defendants to pay the interest. Since the Defendants are not due any amount, the question of payment of interest does not arise. There was no Agreement for the payment of rental charges with regard to cylinders.
11 O.S.No.654/2010
At para 8 of the written statement, the Defendants submit that the Defendants are not withholding or retaining any gas cylinders illegally. Therefore there is no liability on the Defendant to pay cost of gas cylinders or rental charges as claimed by the Plaintiff.
At para 9 of the written statement, the Defendants submit that after receipt of the legal notice, the Defendants appraised the Plaintiff and made known to him that the Defendants are not due any amount, all the amounts are paid and the Defendants are not retained the empty Industrial Gas Cylinders. The Plaintiff having realized the mistake committed by them after issuing the notice, have promised that they will withdraw the notice and they will not proceed further. This suit is filed only to enrich at the cost of the Defendants.
The Defendants further submit that there is no Cause of action for the Plaintiff to file this suit and the alleged one is false, imaginary and 12 O.S.No.654/2010 to suit the conveyance of the Plaintiff. On these grounds, the defendants 1 to 4 requested the Court to dismiss the suit filed by the plaintiff.
4. The Defendant No.5 filed independent written statement contending that suit filed by the Plaintiff is not maintainable either in law or on facts. He has ceased to be the Director of Defendant No.1 company with effect from 26.8.2009. He has joined the Defendant No.1 Company on 1.10.2005 as Chief Fabrication Division and resigned from the company on 11.3.2009 with a designation of DirectorTechnical.
The Defendant No.5 further submits that he was in the Board of Directors of Defendant No.1 company as Professional Director. Since he had tendered his resignation to the job in the company, he had tendered his resignation as Director in the Board of Directors as per the resolution passed in the Meeting held on 26.8.2009.The resignation was accepted and 13 O.S.No.654/2010 the same is also intimated to the Registrar of Companies. Hence the suit filed by the Plaintiff on 20.1.2010 claiming that Defendant No.5 is the Director of the Defendant No.1 is liable to be dismissed on this count alone.
The Defendant No.5 denied the averments made in para 3 to 17 of the plaint as false and further submitted that he was an employee of the Defendant No.1 company and he was not involved in the management of the daytoday activities of the company and there was no scope for him to involve himself in the dayto day transaction of the company with the third parties. He is not personally liable to pay any amount to the Plaintiff. On these grounds, the Defendant No.5 requested the Court to dismiss the suit filed by the Plaintiff.
5. In this case the defendant No.6 placed exparte.
6. On perusing the pleadings of the plaint and also written statement filed by the Defendants 14 O.S.No.654/2010 No.1 to 4 and 5, my predecessor has framed the following Issues on 7.7.2011:
1. Whether the Plaintiff proves that Defendants have purchased industrial gas cylinders from the Plaintiff on credit basis worth Rs.1,67,898/ and the said amount has not been paid by them?
2. Whether the Plaintiff further proves that the Defendants have not returned 18 Oxygen Cylinders to the Plaintiff ?
3. Whether the Plaintiff is entitled to recover total sum of Rs.4,22,691.26 towards industrial gas cylinders supplied for not returning 18 Oxygen cylinders and towards interest till date of filing of the suit and the rental charges of the gas cylinders from the Defendants?
4. Whether the Plaintiff is entitled for future interest at the rate of 18% p.a. on the claimed sum?
5. Whether the Defendants 1 to 4 proves that suit of the Plaintiff is not maintainable for misjoinder of the parties?
6. Whether the suit of the Plaintiff is barred by limitation?
7. Whether the Plaintiff has got no Cause of action to file the suit as alleged by Defendants 1 to 4?
8. Whether the Defendant No.5 proves that this Court has no territorial jurisdiction to entertain the suit? 15 O.S.No.654/2010
9. Whether the Defendant No.5 further proves that the suit of the Plaintiff against him is not tenable?
10. What Decree or Order?
7. In this case on behalf of the Plaintiff's Company, one K.N.Ravikumar, who is the legal officer by virtue of the Special Power of Attorney, adduced his oral evidence by way of filing his sworn affidavit considered as PW1 and in further chief examination of PW1, the documents produced by him are marked as Ex.P1 to P151. One witnessSri Yogeshwara S, who is legal officer of the Plaintiff's Company has adduced his oral evidence by way of filing his Sworn Affidavit considered as PW2 and in further chief examination of PW2, the documents Ex.P152 and Ex.P153 are marked. In this case the Defendants have not adduced any oral or documentary evidence. Heard oral argument on both side and perused the written arguments by the side of Defendants and then the case posted for judgment.
16 O.S.No.654/2010
8. The findings of this Court on the above Issues are as follows: Issue No.1 : In the Affirmative Issue No.2 : In the Negative Issue No.3 : Partly in the Affirmative Issue No.4 : Partly in the Affirmative Issue No.5 : Partly in the Affirmative Issue No.6 : In the Negative Issue No.7: In the Negative Issue No.8: In the Negative Issue No.9: In the Affirmative Issue No.10:As per final order, for the following:
REASONS Issue No.1 :
9. This suit is filed by the Plaintiff's Company represented by its Special Power of Attorney holder against the Defendants for recovery of a sum of Rs.1,67,898/ towards purchase of Industrial Gas Cylinders.
10. It is the case of the Plaintiff's Company that it is a registered Company under the Companies Act, having its registered office at No.8, 8 th Main, 17 O.S.No.654/2010 Mathikere Extension, Bengaluru54 and having branch at 313, 8th Cross, IV Phase, Peenya Industrial Area,Bangalore560 058 and Plot No.76 A,SIPCOT Industrial Complex, Hosur635 126 represented by its Special Power of Attorney holder Sri K.Gopinath. It is further case of the Plantiff's Company that Defendant No.1 is a Company registered under the Companies Act, having its registered office and its Factory; Defendant No.2 is its corporate Office; Defendant No.3 is its Administrative Office; and is represented by its Directors Defendants 4 to 6. The Plaintiff's Company has been carrying the business of supplying of industrial gases and the Defendants have been making purchase of industrial gases to their factory from the Plaintiff's Company through its branches at Bengaluru and Hosur on credit basis in the industrial gas cylinders owned by the Plaintiff, on returnable basis after consuming the gas on trust. The Plaintiff's Company has been maintaining running account in their books of accounts in 18 O.S.No.654/2010 respect of purchase of gas and the payments, and cylinders supplied and returned in connection with the transaction which the Plaintiff had with the Defendants. As per the contention of the Plaintiff's Company, the Defendants were not regular in making payment and as per the books of accounts of the Plaintiff's Company, the Defendants are due to the Plaintiff a sum of Rs.1,67,898/ excluding interest as on the date towards purchase of gas made by the Defendants and 18 empty industrial gas cylinders are due from the Defendants which were supplied to the Defendants and which are not yet returned by the Defendants.
11. Here in order to prove that the Defendants are liable to pay due amount of Rs.1,67,898/ towards purchase of Industrial Gas Cylinders, the Special Power of Attorney holder of the Plaintiff's Company by name Sri K.N.Ravikumar adduced his oral evidence as PW1 on the strength of Special Power of Attorney executed by the Plaintiff's Company in his favour and in his further chief 19 O.S.No.654/2010 examination, the documents produced by him are marked as Ex.P1 to P151. Here Ex.P4 to P10 are the Purchase Orders issued by the Defendants to the Plaintiff's Company for purchasing the Industrial Gas Cylinders supplied by the Plaintiff's Company. Ex.P12 to P15, P17 to P18 are the ledger accounts for the period from 2007 to 2010. Ex.P16 and Ex.P19 are the billwise details for the period from 2009 to March 2010. Ex.P20 to P31 are Cylinder Statements from 2006 to 2010. Ex.P32 to 37 are the Empty cylinder receipts. Ex.P38 to 134 are the delivery challans. Ex.P135 are Invoices(total No.122). Ex.P136 to P139 are Email letters. Ex.P140 is letter dt.3.6.2009. Ex.P141 and 142 are two postal acknowledgments. Ex.P143 is the reply letter dt.4.6.2009. Ex.P144 is the letter dt.6.6.2009. Ex.P146 is copy of lawyer's notice dt.dt.27.8.2009.
12. So here in the crossexamination of PW1 by the counsel for Defendant No.5, who filed the independent Written Statement, goes to show that there is no any suggestion suggested by the counsel 20 O.S.No.654/2010 for Defendant No.5 with regard to the due amount payable by Defendants 1 to 4 towards purchase of Industrial Gas Cylinders supplied by the Plaintiff's Company as claimed in plaint. Here in the cross examination of PW1, he deposed that he is working in the Plaintiff's Company as a legal officer since August 2010 and he had knowledge about the transaction between Plaintiff's Company and Defendants only on the basis of records produced in this case. Here in the Written Statement filed by Defendant No.5, it is his contention that he was an employee of the Defendant No.1 company and he was not involved in the daytoday activities of the Management of the company and there was no scope for him to involve himself in the daytoday transaction of the company with the third parties. So looking to the entire contention took by Defendant No.5 in the Written Statement, goes to show that he is not aware of the transaction held in between the Plaintiff's Company and Defendant No.1, because he had tendered his resignation as Director in the 21 O.S.No.654/2010 Board of Directors as per the Resolution passed in the Meeting held on 26.8.2009. Therefore in the crossexamination of PW1, in page 39 at para 2, he deposed that as per the purchase orders placed by the Defendant No.1 company, the Plaintiff's Company used to supply Industrial Gas Cylinders. PW1 also deposed that the Plaintiff's Company started to supply the Industrial Gas Cylinders to Defendant No.1 since 2006. Therefore in the cross examination of PW1 by the counsel for Defendant No.5 , he has not at all put suggestion suggesting with regard to denial of the purchase Order placed by the Defendant No.1 as per Ex.P4 to P10. So here PW1 in his crossexamination deposed that the Plaintiff's Company by passing a Resolution, authorized him to give evidence on the strength of the Special Power of Attorney, which is marked Ex.P1. Thus from the oral evidence of PW1 it reveals that he verified all the documents i.e, Ex.P4 to P10 and also ledger accounts kept by the Plaintiff's Company with regard to purchase of Industrial Gas 22 O.S.No.654/2010 Cylinders by the Defendant No.1 company, hence produced the ledger accounts which are marked Ex.P12 to P15 and 17 to 18 for the years 2006 to 2010. Further PW1 also produced Cylinder Statements which are marked as Ex.P22 to P31 and Ex.P135, which are the Invoices(totally in No.122). These documents have not been denied by suggesting in the crossexamination of PW1 by the counsel for Defendant No.5.
13. Here Defendant No.4 filed separate Written Statement and the same is adopted by Defendants 1 to 3. Here PW1 did not turn up later on and present before the Court for the cross examination by the side of Defendants 1 to 4. However one Yogeshwar, legal officer adduced his oral evidence as PW2 on the strength of Special Power of Attorney executed by Defendant No.1 company in his favour in the Board Resolution dt.23.12.2013 as per Ex.P152 and P153 by way of filing Sworn Affidavit. In the Sworn Affidavit filed by PW2, the facts narrated is nothing but reproduction 23 O.S.No.654/2010 of pleadings of the plaint. However in the cross examination of PW2 by the counsel for Defendants 1 to 4, he deposed that he had no personal knowledge about transaction held in between the Plaintiff and Defendants 1 to 4, but he had knowledge to give evidence in this case only on the basis of records. The suggestion suggested by the counsel for Defendants 1 to 4 in the crossexamination of PW1 is reiterated again as "It is true to suggest that we have to supply Industrial Gas Cylinders to the place of customers". This suggestion itself sufficient that there is transaction held between the Plaintiff's Company with Defendants with regard to supply of Industrial Gas Cylinders as per the purchase orders placed by Defendant No.1 company to the Plaintiff's Company. Even in the crossexamination of PW2, there is no any specific suggestion suggested by the counsel for Defendants 1 to 4 denying the purchase orders and ledger accounts kept by the Plaintiff's Company with regard to transaction held with the Defendants and also invoices raised which are 24 O.S.No.654/2010 marked as Ex.P135. Therefore in the cross examination of PW1 and PW2, the counsel for Defendants 1 to 5 has not specifically denied by putting suggestion in the crossexamination with regard to purchase orders marked as Ex.P4 to P10, ledger accounts marked as Ex.P12 to P15, 17 and 18, Cylinder Statements marked as Ex.P20 to P31 and Invoices marked as Ex.P135 raised. In this case the Defendant No.4 filed Written Statement which is adopted by Defendants 1 to 3 and Defendant No.5 filed independent Written Statement, but Defendant No.6 has not filed Written Statement. In this case Defendants 1 to 4 and 5, though filed Written Statement, have not entered the witness box to disprove the case of the Plaintiff's Company. Therefore the documentary evidence produced by PW1 and PW2 in respect of the purchase orders, ledger accounts, Cylinder Statements and invoices raised is not denied in the crossexamination of Pws.1 and 2 by putting a suggestion, which itself sufficient that the Plaintiff's Company established 25 O.S.No.654/2010 that there is a transaction held in between Plaintiff's Company with Defendants 1 to 4 with regard to supply of Industrial Gas Cylinders and Defendant No.1 has purchased Industrial Gas Cylinders, but not paid the amount due to the Plaintiff's Company of Rs.1,67,898/. Therefore the Plaintiff's Company got issued legal notice dt.27.8.2009 to the Defendants. Only Defendant No.4 made correspondence dt.4.6.2009 as per Ex.P143. But not specifically denied stating that there is no any due amount remained by the side of Defendant No.4. Again as per Ex.P144, the Plaintiff's Company addressed a letter to Defendants 3 and 4 with regard to payment of due amount in respect of purchase of Industrial Gas Cylinders by Defendants 1 to 4. But neither the Defendants 1 to 4 nor Defendant No.5 have come forward to adduce their evidence as per the contention took in the Written Statement filed by them. Therefore there is no rebuttal evidence by the side of Defendants 1 to 4 and 5 to deny documentary evidence produced by PW1 and PW2. Hence from the 26 O.S.No.654/2010 documentary evidence and oral evidence of Pws.1 and 2, it is proved that Defendants 1 to 4 have purchased Industrial Gas Cylinders from the Plaintiff's Company on credit which is worth Rs. 1,67,898/. The said amount has not been paid by Defendants 1 to 4, though there is documentary evidence in support of Plaintiff's case as to prove that Defendants 1 to 4 are liable to pay amount of Rs.1,67,898/ as due amount to be payable to the Plaintiff's Company. Accordingly Court answered Issue No.1 in the Affirmative.
Issue No.2:
14. The case of the Plaintiff's Company as pleaded in the plaint at para 8 is that as per the agreed terms of the business, the Defendant No.1 company, after consumption of Industrial Gas, has to return the empty gas cylinders within seven days from the date of supply. But the Defendant No.1's company has not returned 18 empty Oxygen gas cylinders within seven days, therefore as per the agreed terms,the Defendants are required to pay 27 O.S.No.654/2010 Cylinder holding charges at the rate of Rs.5/ per day per Cylinder from 8th day onwards from the date of respective supply. Therefore burden lies on the Plaintiff's Company represented by its Special Power of Attorney holder to prove that the Defendant No.1's company has not returned 18 Oxygen cylinder within seven days after the consumption.
15. Here in order to prove Issue No.2 , it is just and proper to know the oral evidence of PW1. In the chiefexamination of PW1 at para 6 and in the chiefexamination of PW2, they stated that Defendant No.1 has not returned 18 empty gas cylinders which were supplied by the Plaintiff's Company, therefore Defendants 1 to 4 are liable to pay replacement charges and also rental charges at the rate of Rs.5/ per day per Cylinder. In the cross examination of PW1 at page 13 para 2, he deposed that after supply of filled Cylinder, empty gas cylinders have to be returned within seven days. Further PW1 deposed that there is no any written agreement for return of empty gas cylinders within 28 O.S.No.654/2010 specified period. PW1 deposed that there is a quotation where it is specifically mentioned about return of empty gas cylinders. Here PW1 produced Ex.P2 and P3 which are quotations. On these quotations there is no signature of Defendants No.1 to 4. Here in the crossexamination of PW1 at page 3, he deposed that the transaction held in between Plaintiff's Company with Defendant No.1's company since from 2006 to 2009. But PW1 failed to depose total number of Industrial Gas Cylinders supplied to Defendant No.1 from 2006 to 2009 and also total number of cylinders possessed by the Plaintiff's Company during the period 2006 to 2009. Here PW1 deposed that there is an identification number on each cylinder. PW1 admitted that after return of empty gas cylinders, the Plaintiff used to make entry about cylinder identification number. But here Pws.1 and 2 have not produced any scrap of paper as to prove with regard to identification numbers in respect of 18 empty gas cylinders which were alleged as not returned by Defendant No.1's company. 29 O.S.No.654/2010
16. Here one Soman had knowledge about movement of cylinder who is also incharge of store department in order to speak about the identification marks. But said Soman was not brought before the witness box to adduce evidence relating to identification numbers of empty gas cylinders which were to be returned by Defendant No.1 after consumption, though PW1 deposed that said Soman can give evidence. In the crossexamination of PW1 at page 15, he deposed that he could not speak about the due date of each empty gas cylinders which were required to be returned by Defendant No.1. So the better person to speak about the identification number and also due date of the Cylinder is the person who was looking after the store department and maintain the verification Report of the cylinders. In this case said verification report of store department from 2006 to 2009 has not been produced by PW1. Further as admitted in the crossexamination of PW1 one Salesman by name Reji p eapen sent the email as per Ex.P136 30 O.S.No.654/2010 wherein it is mentioned that 46 empty gas cylinders were missing. But PW1 voluntarily deposed that after survey conducted, Plaintiff's Company came to know that 18 empty gas cylinders were missing. PW1 also admitted that no notice was issued to Defendant No.1 by mentioning those 18 empty gas cylinders which were said to be missed. So here only based on the statement of the company, emale was sent as per Ex.P136 by sales manager. But the said sales manager also not examined in this case to know the truth whether actually Defendant No.1 has not return 18 empty gas cylinders. So here the store keeper Mr.Soman and also sales Manager Reji p eapen who was incharge of store department were not examined In this case, as to know whether actually Defendant No.1 retained 18 empty gas cylinders after prescribed period. In the cross examination of PW1 at page 17, he admitted that the officials of Plaintiff's Company namely Ganesh and Poornima have conducted the spot inspection in the company of Defendant No.1 and submitted a report. 31 O.S.No.654/2010 But no such report is produced by PW1 nor said Ganesh and Poornima are examined in order to know whether actually Defendant No.1 retained 18 empty gas cylinders and not returned the same within prescribed time. The evidence of Ganesh and Poornima is very much necessary in order to know the identification numbers of 18 empty gas cylinders which were not returned by Defendant No.1 as alleged by the Plaintiff's Company.
17. In the crossexamination of PW2, he admitted that the Managing Director of the Plaintiff's Company visited to the customer care of Defendants 1 to 3, but said fact is not mentioned in his notice got issued to the Defendants 1 to 4 with regard to visit of M.D to the place of Defendants 1 to 3. In the crossexamination of PW2, he admitted that there is no any specific Agreement with regard to payment of Rs.5/ per day per cylinder as holding charges. But here on perusing Ex.P2 and P3 which are quotations, there is no signature and seal of Defendants 1 to 3 with regard to terms and 32 O.S.No.654/2010 conditions. So this goes to show that when there is no identification number and verification report with regard to missing of 18 empty gas cylinders as retained by Defendants 1 to 4, as alleged by the Plaintiff, under these circumstances how can the Plaintiff allege against the Defendant Nos. 1 to 4 that they have not returned 18 empty gas cylinders. The contradictions in the crossexamination of PW2 in para 3 by deposing that the godown Manager submitted report to M.D. of Plaintiff's Company regarding missing of 42 empty gas cylinders. Again PW2 admitted that after survey conducted, they came to know only 18 empty gas cylinders were missing and not 42 empty gas cylinders. So such being the contradictions in the crossexamination of PW2, itself shows that the Defendants 1 to 4 have not at all retained 18 empty gas cylinders and not returned the same, as alleged by the Plaintiff's Company within prescribed dates.
18. Further here the documents produced by PW1, out of those no specific document is produced 33 O.S.No.654/2010 contending identification numbers of each of empty gas cylinders which were not returned by Defendant No.1's company as alleged by the Plaintiff's Company. Therefore the Plaintiff's Company utterly failed to prove Issue No.2. Accordingly this Court answered Issue No.2 in the Negative. Issue Nos.3 and 4:
19. Here in the chiefexamination of PW1 and PW2 and also in the prayer column 19(a), the Plaintiff's Company prays the Court to direct the Defendants to pay the Plaintiff a sum of Rs.4,22,69126 along with interest at 18% p.a. from the date of suit till realization along with rental charges and replacement cost. But here the Court has already come to the conclusion while answering Issue No.1 in the Affirmative stating that Defendants 1 to 4 are only liable to pay due amount of price of Industrial Gas Cylinders worth Rs.1,67,898/. But here in the crossexamination of PW1 and PW2, they utterly failed to prove specifically by producing the documents with regard to identification number of 34 O.S.No.654/2010 each of 18 empty gas cylinders which were not returned by Defendants 1 to 4 as alleged by the Plaintiff so also the verification report not submitted by the store keeper who is incharge of godown. Therefore under these circumstances how can the Plaintiff's Company is entitled the replacement cost of Rs.10,500/ and also rental charges of Rs.5/ per day per cylinder. Here in the crossexamination of PW1 and PW2, it reveals that there is no specific agreement with regard to payment of rate of interest at 18% p.a. on the claim amount to be payable by the Defendant. But the transaction held in between the Plaintiff and Defendants 1 to 4 is commercial in nature. Therefore Defendants 1 to 4 have to pay interest to the due amount of Rs.1,67,898/, but not at the rate of 18% as claimed by the Plaintiff. Therefore the Plaintiff's Company is entitled to interest at the rate of 6% p.a on the due amount of Rs. 1,67,898/from the date of suit ill the date of realisation. Further there was no mutual understanding of invoice or trade terms agreed by 35 O.S.No.654/2010 Defendants 1 to 4 to pay interest. There was no privity of contract entered into between Plaintiff's Company and Defendants to pay interest. Therefore the Court answered issue Nos.3 and 4 partly in the Affirmative.
Issue No.5:
20. In the Written Statement filed by Defendant No.4 which is adopted by Defendants 1 to 3, it is specific contention at para 2 that Defendants 5 and 6 are no more Directors of the Defendant No.1 Company and they have no role to play since they have resigned and have no interest in the business transaction of the Defendant No.1 and this fact is within the knowledge of the Plaintiff. Therefore it is the contention that the suit is bad for misjoinder of improper parties. To prove Issue No.5, it is just and proper to scrutinize the crossexamination of PW1 and PW2. PW1 in his crossexamination of at page 11 deposed that he perused the Written Statement filed by Defendant No.1. Further PW1 deposed that he knew about Form No.32 which depicts the 36 O.S.No.654/2010 Director Identification Number. PW1 also admitted that the company maintains the Ministry of Corporation affairs i.e., MCA. PW1 also admitted that appointment and retirement of the Director will be available in the MCA. But here no such Form No.32 and MCA report is produced as to know whether Defendant No.5 was Director at the time of filing of this suit to fix him that he is also liable along with other Defendants to pay the due amount to the Plaintiff's Company. PW1, therefore admitted that till adducing evidence by him he has not produced any document to show that Defendant No.5 is the Director of the Defendant No.1 company.
In his crossexamination dt.4.6.2014 at page 12, PW1 admitted that there is no document produced in order to prove that Defendant No.5 has transacted and signed on any document on behalf of Defendant No.1's company. Further PW1 deposed that Plaintiff's Company has not verified about the Directors of the Defendant No.1's company in Form No.32. So here in the Written Statement filed by 37 O.S.No.654/2010 Defendant No.4, it is specifically stated that Defendants 5 and 6 are no more Directors of Defendant No.1 company and they have no role to play. But PW1 and PW2 have not produced any document to disprove the contention took in the Written Statement filed by Defendant No.5. Therefore Defendant No.5 is not liable to pay any amount to the Plaintiff's Company since he is not involved in any transaction held by Plaintiff's Company with Defendant No.1's company. Therefore as pleaded in para 2 of the Written Statement filed by Defendants 1 to 4, the suit filed by the Plaintiff's Company is not maintainable due to misjoinder of parties i.e., Defendants 5 and 6 in this case. Hence the Court answered Issue No.5 partly in the Affirmative. Issue No.6:
21. Here in the Written Statement filed by Defendants 1 to 4 and Defendant No.5, they have specifically took contention that the suit is barred by limitation. But here looking to the exhibits i.e, Ex.P4 to P135 which are the purchase orders, invoices, 38 O.S.No.654/2010 delivery challans, ledger accounts pertaining for the years 2006 to 2010. So this suit is filed by the Plaintiff's Company on 23.1.210. Therefore the suit filed by the Plaintiff's Company is within limitation.
Here as per Article 14, the period of limitation is three years from the date of delivery of goods and also when the demand made for payment. Further there is no unequivocal evidence available on record by the side of Defendants 1 to 5 in order to prove that the suit filed by the Plaintiff's Company is barred by limitation. Hence the Court answered Issue No.6 in the Negative.
Issue No.7:
22. Here in the Written Statement filed by Defendants 1 to 4 at para 10, it is their specific contention that there is no cause of action for filing of this suit and the alleged one is imaginary. But here though the Defendants 1 to 4 filed Written Statement, they have not entered into witness box in order to prove that there is no cause of action arose for filing of this suit by the Plaintiff against the 39 O.S.No.654/2010 Defendants. Here the Court has to ascertain looking to the averments made in all paras of the plaint for arriving to the conclusion as whether there is cause of action arose for filing of this suit against the Defendants. Here the Court cannot rely on the Written Statement filed by the Defendants for ascertaining whether cause of action arose for filing of this suit by the Plaintiff. But here looking to the chiefexamination of PW1 and PW2 and averments made in the plaint, goes to show that cause of action arose against Defendants 1 to 4 when the Defendants 1 to 4 failed to pay the due amount with regard to purchase of Industrial Gas Cylinders and also when the Plaintiff's Company has issued legal notice dt.27.8.2009 demanding to repay the due amount with regard to purchase of Industrial Gas Cylinders from the Plaintiff's Company. Therefore Defendants 1 to 4 utterly failed to prove Issue No.7.
Hence the Court answered Issue No.7 in the Negative.
40 O.S.No.654/2010Issue No.8:
23. Here the Defendant No.5 independently filed Written Statement dt.31.3.2010. In para 15, the Defendant No.5 took contention that the registered office of the Defendant No.1 company is within the limits of Nelamangala Taluk, therefore this Court has no territorial jurisdiction for conducting trial of this suit. But here the office of the Defendant No.1's company for carrying the daily transaction is situated at Indiranagar and R.T.Nagar at Bengaluru as shown the causetitle of the plaint in respect of address of Defendants 3 and 4. The Defendants 3 and 4 are carrying the administrative work of Defendants 1 and 2 at Bengaluru. Further there is no any documentary evidence produced by Defendant No.5 and no oral evidence adduced by Defendant No.5 in order to prove that this Court has no territorial jurisdiction for conducting trial of this suit since the Defendant No.1 company is having a registered office situated within the limits of 41 O.S.No.654/2010 Nelamangala Taluk. Accordingly the Court answered Issue No.8 in the Negative.
Issue No.9:
24. Here in order to prove Issue No.9, it is pertinent to rely on the contradictions in the cross examination of PW1 and PW2. Here PW1 in his crossexamination of dt.4.6.2014 at page 11 deposed that there is no document to show that Defendant No.5 has transacted and signed any document on behalf of Defendant No.1's company. PW1 also deposed in page 13 that Defendant No.5 does not have business transaction with Plaintiff in personal capacity and there is no such a document to show that Defendant No.5 has a transaction with Plaintiff's Company on behalf of Defendant No.1's company. PW1 also admitted that he has not verified Form No.32 in order to know who are the Directors of Defendant No.1 company. Therefore the Plaintiff has not produced any document to disprove the contention took in the Written Statement filed by Defendant No.5. Further on perusing the cross 42 O.S.No.654/2010 examination of PW1 and PW2 goes to show that they do not have any knowledge about the retirement of Defendants 5 and 6 from the Defendant No.1's company though the Plaintiff's Company impleaded Defendants 5 and 6. Hence the suit filed by the Plaintiff's Company against Defendants 5 and 6 is bad for misjoinder of improper parties. Further the admissions in the crossexamination of PW1 and PW2 is sufficient proof in order to prove that the suit filed by the Plaintiff's Company against Defendant No.5 is not at all tenable. Accordingly the Court answered Issue No.9 in the Affirmative.
Issue No.10:
25. In view of forgoing observations made in all the above Issues, this Court proceeds to pass the following:
ORDER Suit filed by the Plaintiff's Company represented by its Special Power of Attorney holder against the Defendants No.1 to 4 is hereby partly decreed for a sum of Rs. 43 O.S.No.654/2010 1,67,898/(Rupees One lakh Sixty Seven thousand Eight hundred and Ninety Eight only), with costs.
Further the Plaintiff's Company is entitled to interest at the rate of 6% p.a. on the decretal amount from the date of the suit till realization.
Suit filed by the Plaintiff's Company represented by its Special Power of Attorney holder against Defendants 5 and 6 is hereby dismissed as not maintainable. It is directed to the Defendants No.1 to 4 jointly and severally to pay the entire decretal amount along with interest, as per the above Order, within three months from the date of this order.
Draw decree accordingly.
(Dictated to the Judgment Writer, corrected, signed and then pronounced by me in the open Court on this the 16th Day of October, 2020) (Devanand P.Nayak) XXXVIII Addl. City Civil & Sessions Judge, Bangalore City.44 O.S.No.654/2010
ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1 K.N.Ravi Kumar
PW2 Mr.Yogeshwara S
2. List of documents exhibited for plaintiff :
Ex.P1 Special Power of Attorney
Ex.P2 Quotation letter dt.27.7.2006
Ex.P3 Quotation letter dt.10.4.2007
Ex.P4 to Purchase Orders
Ex.P10
Ex.P11 Annexure to the purchase Order
dt.10.8.2006
Ex.P12 Ledger account for the period from
1.4.2009 to.31.3.2010
Ex.P13 Ledger account for the period from
1.4.2008 to 31.3.2009
Ex.P14 Ledger account for the period from
1.4.2007 to 31.3.2008
Ex.P15 Ledger account for the period from
1.4.2006 to 31.3.2007
Ex.P16 Billwise details for the period from
1.4.2009 to 31.3.2010
Ex.P17 Ledger account for the period from
1.4.2009 to 31.3.2010
Ex.P18 Ledger accountn for the period
from 1.4.2008 to 31.3.2009
Ex.P19 Billwise details for the period from
1.4.2009 to 31.3.2010
Ex.P20 Cylinder statement
Ex.P21 Cylinder statement for the period
45 O.S.No.654/2010
from 1.4.2008 to 31.3.2009
Ex.P22 Cylinder statement for the period
from 1.4.2007 to 31.3.2008
Ex.P23 Cylinder statement for the period
from 1.4.2006 to 31.3.2007
Ex.P24 Cylinder statement for the period
from 1.4.2009 to 31.3.2010
Ex.P25 Cylinder statement for the period
from 1.4.2008 to 31.3.2009
Ex.P26 Cylinder statement for the period
from 1.4.2007 to 31.3.2008
Ex.P27 Cylinder statement for the period
from 1.4.2006 to 31.3.2007
Ex.P28 Cylinder statement for the period
from 1.4.2009 to 31.3.2010
Ex.P29 Cylinder statement for the period
from 1.4.2008 to 31.3.2009
Ex.P30 Cylinder statement for the period
from 1.4.2007 to 31.3.2008
Ex.P31 Cylinder statement for the period
from 1.4.2006 to 31.3.2007
Ex.P32 Empty cylinder receipts
to P37
Ex.P38 Delivery challans
to P134
Ex.P135 Invoices(total No.122)
Ex.P136 Email letter dt.24.3.2009 Ex.P137 Email letter dt.18.4.2009 Ex.P138 Email letter dt.15.5.2009 Ex.P139 Email letter dt.23.6.2009 Ex.P140 Letter dt.3.6.2009 Ex.P141 2 postal acknowledgments &P142 46 O.S.No.654/2010 Ex.P143 Reply letter dt.4.6.2009 Ex.P144 Letter dt.6.6.2009 Ex.P145 Unserved RPAD cover Ex.P146 Copy of lawyer's notice dt.27.8.2009 Ex.P147 5 postal acknowledgments to P151 Ex.P152 Board resolution dated 26.12.2015.
Ex.P153 Special Power of Attorney executed by in favour of pw.2.
3. List of witnesses examined for defendants:
NIL
4. List of documents exhibited for defendant:
NIL (Devanand Puttappa Nayak) XXXVIII Additional City Civil & Sessions Judge,Bangalore City.