Bangalore District Court
Alutech Impex vs Sujit Kumar Mishra on 25 July, 2024
IN THE COURT OF THE LXXXVIII ADDL. CITY CIVIL &
SESSIONS JUDGE (EXCLUSIVE COMMERCIAL COURT):
BENGALURU CITY. (CCH-89)
Present:
Sri.MALLIKARJUN, B.com., LL.M.,
LXXXVIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 25th day of July, 2024
Com.O.S.No.923/2023
BETWEEN:
M/s Alutech Implex
No.24, New Timber Layout,
Mysore Road,
Bangalore-560 026,
Represented by its Accountant
Mr.Narayana N
S/o Narendra H.G
Aged 22 years,
Mobile: 8884833828
Email ID: [email protected]
: PLAINTIFF
(Represented by K.B.L, Advocate)
AND
Sujit Kumar Mishra
Prop:- Savitri Electrical Hardware and Paints
Shop No.64/SH, 11 and 12, ward No.2,
Ground floor, Ducolim,
2 Com.O.S.No.923/2023
Seraulim, South Goa,
Goa-403708
Email id:- NA
Mobile No:- NA
: DEFENDANT
(Represented by R.S.A, Advocate)
Date of Institution of the 17.08.2023
suit
Nature of the suit (suit on
pronote, suit for declaration
& Possession, Suit for Suit for recovery of money
injunction etc.)
Date of commencement of 17.01.2024
recording of evidence
Date on which judgment
was pronounced 25.07.2024
Total Duration Year/s Month/s Day/s
00 11 08
(MALLIKARJUN)
LXXXVIII Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This is a suit filed by the plaintiff against the defendants for recovery of money.
2. Brief facts of the plaint averments are as under:-
That the plaintiff is one of India's leading wholesale marketing partnership firm dealing with Aluminium 3 Com.O.S.No.923/2023 Composite panel, edge band tape, masking tape & WPC board represented by its authorized signatory. The plaintiff since 2019 have supplied the aluminium composite panel and other goods against the orders placed by the defendant and they have maintained a running account with them. The defendant used to make regular purchases and paying the old bills. As per the ledger account maintained by the plaintiff, there is an outstanding due of Rs.2,41,020/- as on 31.03.2021 payable by defendant. Inspite of repeated reminders the defendant has not come forward to paid a sum of Rs.25,000/- on 03.01.2020 a sum of Rs.30,000/- on 21.03.2020 same have been adjusting in the outstanding invoices. Thereafter the defendants are having due a sum of Rs.2,96,681/- as on 31.03.2020. On
03.09.2020 the defendant has returned the goods worth Rs.57,433/-. Further there was a rate difference debit note was raised for Rs.1,872/- and a freight charges of Rs.100/- is also credited to the ledger account of the defendant. As on the date of filing the suit, the defendant was due payable a sum of Rs.3,67,858/- the notice was caused tried to through out the suit calling the defendant to pay an amount on 24.05.2022. The defendant has neither replied it nor complied it, hence plaintiff approached DLSA for holding PIM proceedings. The defendant has remained absent, hence present suit is filed prayed for decreeing the suit in favour of plaintiff and against the defendant 4 Com.O.S.No.923/2023 directing him to pay a sum of Rs.3,67,858/- with interest at the rate of 18% p.a from the date of invoice till its realization.
3. That after service of summons, defendant appeared through his counsel filed their written statement contended that it is true to say that defendant is placing purchase orders and plaintiff use to supply aluminium composite panel and other goods the said purchase order. It is also true to say that the defendant use to make payment regularly. It is incorrect to say that this defendant is outstanding due liable to pay of Rs.2,41,020/- as on 31.03.2021. The ledger account extract produced by the plaintiff is required to put strict proof of this defendant as not received the goods corresponding the bills dated 14.05.2019 for an amount of Rs.12,489/- and bill dated 30.05.2019 for an amount of Rs.28,945/-. This defendant has paid a sum of Rs.1,06,898.68 as Rs.80,000/- was paid to one Mr.Rajendra who was in the employment of the plaintiff as a regional sales manager. The defendant have received defective goods, the plaintiff is not making proper account in the defendant transaction, the claim of the plaintiff is unsustainable. The rate of interest claimed by the plaintiff is ex-orbitant and unlawful. It is false to say that inspite of repeated demands made by the plaintiff, defendant has not paid outstanding due. Plaintiff is added 5 Com.O.S.No.923/2023 additional fake bills to make unlawful gain, this court has no jurisdiction to try the suit. Hence plaintiff is not entitled to relief sought in the suit and prayed for dismissal of the same.
4. That to prove the case of the plaintiff, one witness is examined as PW.1 and got marked Ex.P.1 to Ex.P.19 documents. On behalf of defendants, two witness examined as DW.1 and got marked Ex.D.1 to Ex.D.4.
5. Based on the above pleadings, my predecessor in office has framed the following;
ISSUES
1) Whether the plaintiff proves that the defendant is liable to pay Rs.3,67,858/- for the goods supply to them?
2) Whether the defendant proves that the plaintiff has added additional fake bills to make the total outstanding amount exceeding amount of Rs.3,00,000/-?
3) Whether the plaintiff proves that the defendant is liable to pay interest @18% till the amount realization?
4) What Order or decree?
6. My findings to the above issues are as under:
Issue No.1 :- Partly in the Affirmative Issue No.2 :- In the Negative Issue No.3 :- In the Affirmative 6 Com.O.S.No.923/2023 Issue No.4 :- As per the final Order for the following:
REASONS
7. Issues No.1 to 3:- All these issues are interrelated and connected to each other, to avoid repetition, I have taken them jointly for discussion.
It is the specific case of the plaintiff that, defendant being its customer has placed purchase orders on varies dates. Considering the same the plaintiff has supplied goods accordingly raised invoices vide No.GST/02225/19- 20 dated 09.05.2019 for a sum of Rs.1,91,986/-, invoice No.GST/0248/19-20. On 14.05.2019 for a sum of Rs.12,489/-, invoice No.GST/0256/19-20 dated 16.0.2019 for a sum of Rs.46,105/-, invoice No.GST/0625/19-20 dated 18.05.2019 for a sum of Rs.13,316/-, invoice No.GST/0312/19-20 dated 29.05.2019 for a sum of Rs.39,233/- and invoice No.GST/0320/19-20 dated 30.05.2019 for a sum of Rs.28,945/-. Hence the defendant has purchased goods total worth Rs.3,31,974/-. Thereafter he has made payment a sum of Rs.25,000/- on 03.01.2020 a sum of Rs.30,000/- on 21.03.2020. After adjusting the said payments on defendant account still he was liable to pay outstanding due of Rs.1,96,681.64ps as on 31.03.2020. That on 03.09.2020 the defendant returned the goods worth Rs.57,433/- it has been 7 Com.O.S.No.923/2023 considered as purchase by the plaintiff. Further there was a rate difference hence debit note has been raised for a sum of Rs.1,872/- and a freight charges of Rs.100/-. The defendant has outstanding balance of Rs.2,41,020/- payable to the plaintiff as on 31.03.2021. Since the defendant has failed to pay the said amount in time, so he is liable to pay interest on the said amount at the rate of 18% p.a. Therefore including the interest amount before 31.03.2021 till day a sum of Rs.1,26,838/- towards interest liable to be paid. Thus total suit claim comes to Rs.3,67,858/- accordingly prayed for decreeing the suit directing the defendant to pay said amount with interest at the rate of 18% p.a from the date of suit till its realization. These facts have been denied by the defendant in the written statement categorically contended that, the suit of the plaintiff is false, frivolous and untenable liable to be dismissed. It is false to say that defendant remained defaulter in payment of amount goods purchased by him. The plaintiff has raised false invoices to make unlawful gain, this defendant is specifically denying the invoice No.GST/0248/19-20 dated 14.05.2019 for a sum of Rs.12,489/- and invoice No.GST/0320/19-20 dated 30.05.2019 for a sum of Rs.28,948/-, this defendant is not liable to pay any amount in respect of both the invoices. Infact as per the defendant the outstanding amount is only a sum of Rs.1,06,898.68 to be payable. It is false to say 8 Com.O.S.No.923/2023 that this defendant has assured to paid interest at 18% p.a of the outstanding amount. This defendant has not issued any demand notice from the plaintiff. It is false to say that defendant has deliberately failed to pay the outstanding amount, the claim of the plaintiff is baseless unsustainable. There is no cause of action to file the suit, hence he is not entitle for the relief sought in the suit.
8. That to prove the case of the plaintiff as already stated above its representative has been examined as PW.1 in his affidavit filed in the form of examination in chief has reiterated the plaint averments and in support of his oral contention has relied Ex.P.1 to Ex.P.19 documents. On behalf of the defendants two witnesses have been examined as DW.1 and DW.2 and got marked Ex.D.1 to Ex.D.4 documents. In the course of cross examination of PW.1, the defendant has made an attempt to deny the locus-standi of the PW.1 to deposed on behalf of the plaintiff. So also an attempt has been made to contend that since the witness was not working with the plaintiff as on the date of suit transactions he has no knowledge either about the transactions or in respect of goods supplied to the defendant. It is admitted fact that the present witness though not working as on the date of suit transactions but that itself cannot be a ground to reject his oral testimony, argument seems to be reasonable. Since it is a suit for 9 Com.O.S.No.923/2023 recovery of money based on the accounts and invoices raised in respect of the goods purchased by the defendant, so the evidence of PW.1 is totally based on documents. The person who is not working with the plaintiff as on the alleged date of suit transaction is entitle to be deposed on behalf of the plaintiff based on documentary evidence. Therefore the contention of the defendants that evidence of PW.1 is not acceptable does not holds water. The learned counsel for the defendant in support of his contention he has relied following two decisions:
1. (2004) SUPP. 6 S.C.R, Janki Vashdeo Bhojwani and another V/s Indusind Bank Ltd and others.
2. R.F.A. No.1413 of 2012 (SP), M I Ahamed V/s Prasun Banerjee.
I have gone through the Principles laid down in the above referred case, the facts and circumstances of the said cases and the nature of transactions involved in those cases are quite different with the facts and circumstances of the present case. So also the nature of transactions involved in this case is also different with the nature of transaction involved the said cases. The plaintiff is a partnership firm running business of dealing with aluminum composite panel and other materials. So if being entity has to run its business through authorized persons and they will look after the day to day affairs of the said 10 Com.O.S.No.923/2023 firm, in case of transfer or change of authorized person the firm is entitled to sue on behalf of other persons or employee based on the books of account maintained by it. So with due respect to the principles laid down in the above referred case, I am of the opinion that it is not helpful to the case of the defendant. Therefore evidence of PW.1 can be relied for ascertaining the rights of the plaintiff.
9. That in the course of further cross examination of PW.1, the defendant has contended that he is disputing two invoices out of total 6 invoices relied by the plaintiff i.e., the invoices at Sl.No.2 and 6 dated 14.05.2019 as well as 30.05.2019. Further it is contended that those invoices have been got created and concocted by the plaintiff only with an intention to make unlawful gain. The suggestion made by the defendant to the PW.1 stating that both the invoices are created documents have been specifically denied, no valuable admissions obtained from his mouth, so the very contention set up by the defendant in the course of evidence clearly goes to show that he has admitted 4 invoices out of 6 invoices raised by the plaintiff, it shows that he is clearly admitting the business transactions held with plaintiff. So burden equally shifts on the defendant to establish before the court that the invoice at Sl.No.2 and 6 are the created and concocted 11 Com.O.S.No.923/2023 document. Since he is set up plea of concoction and creation of documents, mere setting of plea that the documents are concocted and created itself does not suffice case of the defendant he has to substantiate his contentions with reasonable grounds. In this regard the PA holder of the defendant examined as DW.1 in his affidavit filed in form of examination in chief though he has reiterated the written statement averments. But in the course of cross examination he has deposed as under:
It is true to suggest that my father Sujeeth Kumar Mishra is proprietor of Savitri electrical hardware and paints. My father is doing said business since 8 years. It is true to suggest that my father is having business transactions with plaintiff since 2019, out of 6 invoices stated in the plaint I am disputing 2 invoices, we are disputing invoice No.2 for Rs.12,489/- and invoice No.6 for Rs.28,945/- it is false to suggest that only to evade payment he has disputing the said invoices. It is suggested to me that I have not produced GST input document in respect of said invoices I say when you have not to purchase under the said invoices how we can produce the GST input document. I have taken GST input for 4 invoices which are not disputing. If it is suggested to me that even for the 4 invoices I have not produced GST input document I say I think I have produced, but if it is not produced I can produced on the next date.12 Com.O.S.No.923/2023
10. On perusal of the above evidence one point is clear that the defendant is making hectic attempt to deny the invoices at Sl.No.2 and 6 referred in the plaint. In the course of cross examination of PW.1 an attempt has been made to deny both the invoices but no admission has been obtained from his mouth. It is the specific case of the plaintiff that the defendant has taken input of GST in respect of all the invoices raised by it, on the contrary the DW.1 in his cross examination though contended that the defendant has taken GST input for only 4 invoices, but he has not produce the statement of GST input though he has contended that he will produce it before the court, but same has not been produced for the best reason known to him. If really said document was brought on record, the true facts would have come before the court withholding the material document by the party on adverse inference has to drawn against them, arguments seems to be reasonable. The GST input statement is one of the best document is through light on the issue has been intentionally withheld, therefore adverse inference has to be drawn against defendant. So rest of the things pertaining to the suit transactions have been admitted by the defendant, having admitting the same now in the course of evidence further contended that employee of the plaintiff approached the defendant and received a sum of Rs.80,000/- and issued Ex.D.3 receipts, hence the 13 Com.O.S.No.923/2023 defendant is not liable to pay the suit amount as claimed in the plaint. This fact has been categorically denied by the plaintiff has contended that the person who stated to be received the amount of Rs.80,000/- from the defendant has issued two receipts as per Ex.D.3 is not the authorized persons of the plaintiff, therefore it is a created document it cannot be taken into consideration. In this regard the DW.2 has been examined in his affidavit filed in the form of examination in chief he has categorically contended that he is the former employee of the plaintiff use to visit defendant firm and other firms for collecting the outstanding amount, accordingly he received Rs.80,000/- from the defendant on different dates and issued receipts as per Ex.D.3 and they bears his signatures. In the course of cross examination of DW.1 and 2, the plaintiff categorically admitted that DW.2 is his former employee. Having admitting the said fact set up with plea that he has been suspended for the mall practice done during his employment in his office. So he is not a trust over the person and his oral testimony cannot be considered. The plaintiff having admitting the relationship of DW.2 its firm has not produced single piece of document to show that DW.2 has been remove from the service as he was involved in mall practice. On the contrary he has try to contend that the format of receipt issued by DW.2 under Ex.D.3 are not the format used by the plaintiff for the payments receive by 14 Com.O.S.No.923/2023 it. It may be true the plaintiff might have using different formats of receipts but the relationship of DW.2 and his admission that he has received the amount same has been deposited to the plaintiff cannot be denied, the plaintiff has miserably failed to deny the evidence of DW.2. The plaintiff though contended that DW.2 has been suspended from his office for the alleged mall practice. If such would be the fact he ought to have been produced document showing action taken against him. Since no piece of document placed on record, in absence of documentary evidence this contention of the plaintiff is unacceptable. Therefore taking into consideration of all these facts and circumstances one point is clear that, the defendant has purchase the goods from the plaintiff as per the invoices at Sl.No.1 to 6 of the plaint worth Rs.3,31,974/-, out of said amount the defendant has paid a sum of Rs.25,000/- on 03.01.2020 Rs.30,000/- on 21.03.2020 and a sum of Rs.57,433/- towards return of the goods and a sum of Rs.1,972/- towards debit note have been adjusted in the account of the defendant maintained by the plaintiff. The balance remains a sum Rs.2,17,569/- out of which a sum of Rs.80,000/- appears to be paid by the defendant through DW.2 as per receipts under Ex.D.3. Therefore a sum of Rs.1,37,569/- remains same is liable to be paid by the defendant. The defendant in his written statement categorically contended that there is no agreement to pay 15 Com.O.S.No.923/2023 interest at the rate of 18% on the claim of the plaintiff. Since the suit transaction is commercial in nature, the defendant withheld the amount of the plaintiff without any cause and used said money for his business purpose. Even the invoices under Ex.P.5 to Ex.P.9 clearly bears the clause of interest at the rate of 18%, so it is nothing but agreement and binds the parties, considering these facts and circumstances, one point is clear that the plaintiff is entitled for interest at the rate of 18% p.a on the outstanding balance argument holds good, no reason to deny the same. Therefore the defendant is liable to pay interest at the rate of 18%. The interest amount at the rate of 18% p.a on the outstanding amount from the date of notice till filing of the suit comes to Rs.37,143.63/-. So the defendant is due outstanding payable a sum of Rs.1,74,712.63/- together with interest, arguments seems to be reasonable. The plaintiff has proved issue No.1 partly and proved issue No.3 on the other hand has miserably failed to prove issue No.2, hence I have answer issue No.1 in Partly in the Affirmative, issue No.2 in the Negative and issue No.3 in the Affirmative.
11. Issue No.4: - For the various reasons discussed in issues Nos.1 to 3 and findings given on them, I proceed to pass the following;
16 Com.O.S.No.923/2023ORDER Suit of the plaintiff is partly decreed with costs.
The defendant is liable to pay for a sum of Rs.1,74,712.63/- to the plaintiff with interest at the rate of 18% p.a from the date of suit till its realization.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in open Court on this the 25th day of July, 2024).
(MALLIKARJUN) LXXXVIII Addl.City Civil & Sessions Judge, Bengaluru.
17 Com.O.S.No.923/2023ANNEXURE LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF'S SIDE:
PW-1 Narayana.N
LIST OF DOCUMENTS EXHIBITED FOR THE
PLAINTIFF's SIDE:
Ex.P.1 Authorization letter dated 17.05.2023
Ex.P.2 Acknowledgment of registration of firms along
with partnership deed dated 30.05.2024 Ex.P.3 Copy of GST registration certificate Ex.P.4 Copy of defendant GST details downloaded from GST website Ex.P.5 Copy of invoice No.GST/0225/19-20 dated 0905.2019 Ex.P.6 Invoice GST/0256/19-20 dated 16.05.2019 Ex.P.7 Invoice GST/0256/19-20 dated 18.05.2019 Ex.P.8 Invoice GST/0312/19-20 dated 29.05.2019 Ex.P.9 Debit note dated 11.09.2020 Ex.P.10 Non starter report of PIM Ex.P.11 Invoice GST/0248/19-20 dated 14.05.2019 Ex.P.12 & Tax invoice dated 03.09.2020 and e-way bill 12(a) &(b) and lorry receipt Ex.P.13 & Copy of ledger account with certificate 14 Ex.P.15 Certificate of u/sec.65(b) of Indian Evidence Act Ex.P.16 Office copy of the legal notice Ex.P.17 Postal receipt 18 Com.O.S.No.923/2023 Ex.P.18 Postal acknowledgment Ex.P.19 Tax invoice dated 30.05.2019 LIST OF WITNESSES EXAMINED FOR THE DEFENDANT's SIDE:
DW.1 Vikas Mishra
DW.2 Rajendra Jain
LIST OF DOCUMENTS EXHIBITED FOR THE
DEFENDANT'S SIDE:
Ex.D.1 Original power of attorney dated 08.09.2023
Ex.D.2 Digital copy of ledger account
Ex.D.3 Original receipt
Ex.D.4 Certificate U/sec.65B of Indian Evidence Act
(MALLIKARJUN)
LXXXVIII Addl.City Civil & Sessions Judge, Bengaluru.