Karnataka High Court
M/S Motwane Private Limited vs M/S Texonic Instruments on 26 May, 2010
Bench: D.V.Shylendra Kumar, N.Ananda
IN THE HIGH COURT' OF KARNATAKA
AT BANGALORE
Dated this the 26" day of May, 2010 A
PRESENT
THE HON'BLE MR JUSTICE D v 'V I'
THE I-ION'BLE MR J"US'I.'{CE NVANANDA
Regular First Appeal 3 20(33"
Between:
M/S MOTWANE PRIVATE LIMITED" .4 .
No.65, ELEC-TR0NIcs"1cI"IY, *
HOSUR ROAD :1 ~ 3 ._ »
I3ANGALoRE-- 562 158 I '- "
REPRESENTED ByI*Ts;j_ . ~ _ I
MANAGING APPELLANT
V Shetty, Adv.)
AND
__--..__
M/5' .:INSATRUMEN"'l'SV
'No.2, «MANDI'VEEF<A._PPA LANE
5 JP ROAD cR0{3£ I '
BANGALOREA-.--:}§§5O
REPRESENTED BY ITS PARTNER
A MILAP GRAND BHANDARI ' RESPONDENT
" 811' B S Satyananda, Adv. for C / R]
2 THAI"s_IAPPEAL Is FILED UNDER SECTION 96 R/W 0 41 R 1
"OP. cPc,-- AGAINST THE JUDGMENT AND DEGREE DATED
3
hand caused a reply notice denying the averments of the
iegal notice. Therefore. the plaintiff instituted ,,
suit for recovery of Rs 8.24.623/-.
4. The defendant contested the suit
defence that the plaintiff is not'fla'---registered.
J
firm and the suit filed by one ofllthe'=.,part.ners_nairnely
Milap Chand Bhandary is n'otli1n_View of the
provisions of Section' of Partlnership Act,
1932 {for sI'1ort,__.t--l'f'e " --defenii'ant has denied that
it had the plaintiff as
per the invoice«s: vizith the plaint and the
defendant walsvgduer sum of Rs 2,12,922/~.
n_onte'nde.d__.t'nat it had no transactions with
the._p1aintiff;»._:*f)efendant has also contended that if the
if"g.._pgurchase"'iorders_had been produced. that would have
_:ll'rAg._,g¢yealed '[l"l{'.f_]";._lI'iSdiC'[l'Ol'lE1l clause and therefore the city
5fciyii'iffcourtyat Bangalore had no territorial jurisdiction to
if present suit. With these grounds. the defendant
'of for dismissai of the suit.
4
5. On the basis of the rival contentions urged in the
pleadings. the trial court framed the following" isst:es_':'=.:
(1) Vifhether the piaintff proves that ..A'the =
defendant is due Rs.2,l2_921_}'8.lVff _
towards purchases ntadewbyé him V'
the plaintiff'? " d'
(2) Whether this Court nogftrirtisdzictiort 1 it
try the suit? V" ' " i
{3} I/Vhether the p££tiI1f§[f'£Siéfitidfifjci for'24e%4
per annum inte-r_e:st' as ci£atme_d?a _
(4) Whetherjthe 'for a
decree as eiairhect the"sttitV?
6. The lead-1"IiedV;:..j--L;dge_--,__:'of trial court, on
corlsicierationof evirciierrcepof_I3W'1'a1'1d documents marked
as EXPI also by drawing adverse
v'.infere11c€;. for 11on--exaV1rri_nvation of the defendant. decreed
ti1e'sjt1'i't..as--» prayed for. Therefore, the defendant is before
ethis com. V
7. haxreileard Sri S Shekhar Shetty, learned
for the appe11ant--defe1'}dant and Sri B S
Sa-tliyailand, learned counsel for the respondent-_p}a2'ntiff.
5
8. We have been taken through the evidence, both oral
and documentary. records and the findings recorded by
the trial court.
9. On hearing the learned counsel for the
after going through the evidence and by av"
the trial court, we formulate the
determination:
1} VVhether the suit is rto't_:n1atntainc_l1tble
view of the prow'stons.rof--S_ection 69 ofthe
Indian Partnership Act, .1-_932.?a,t _
2} I/Vltether' cc:-'.ujt_ xlhad territorial
{jurisdiction 'to I_ry~.the suit?
3} Whether has established the
s aft L transactions
4).. VWhethelr"t'heg__s_a:'t is barred by time?
Texonic instruments. had filed the
_fasuitgrepresented by one Milap Chand Bhandary, who has
rlligelseribed as its partner. However, in the plaint, it
V" lV.fg"iS_"n'otlstated that the plaintiff is a registered firm. The
7
12-1979 with the Registrar of Firms, Madras. This
document does not disclose the names of the partners of
the partnership firm. Plaintiff has also produced EXPZ -v
deed of partnership -- executed on 1»-4-1992, wherein.oneL'._V_
Mahaveerchand Bhandari, H Milapchand,
Bhandari and Sadeep have been descrihed if
However, the contents of E_xP3 do
contents of EXPZ. Therefore we
not produced any document to as.lon.,the,.ldate
of filing of the suit i.e. as on v2oo--e;1i9rs3é;iEngl plaintiff--firm
was a regisiteredlf one Milap Chand
Bhandari, w_l1'o__had said suit was one of the
partners of the firin. in V " "
learned counsel for plaintiff
the trial court has failed to frame an
regarding this fact, therefore the plaintiff could not
{.l_lvac1d'u'ceVnecessary evidence to prove this fact, which we
. 'lula-rehotl inclined to accept for the following reasons.
3/vs 5'/"L--rvwté A ,
8
1.4. Plaintiff has filed the suit as a partnership firm
therefore the plaintiff should have produced F€glStFatl,'éi?,.
certificate of the firm and also certificate to show "
person who had instituted the suit had been if
register of firms as a partner of the f; l
15. The learned counsel for the-..__plaint.i_ff' would'
submit that since the firm year
1979, it was not necessa--ry_foArp renew its
registration every year.
Urider Actffiftvis specifically stated
that the duration to be stated and if the
firm weretoyp estabylyislir branches at different places, that
bfe*~,_intimiated to the Registrar of Firms.
Thoiugnthe'vleafrnedi"counsel has drawn our attention to
the proV--isio_ns-wolf Section 63 of the Act to contend that
_f"wh.ert o1f1ce'a firm is registered, on the change of any
p_artfi.ers°and consequential reconstitution, there is no
nieedlllfor any fresh registration, but intimation of such
'Y\>. M we
9
changes to the Registrar of Firms would suffice the
purpose and therefore the original registration certificate-,p
of the firm obtained in the year 1979 will enure
benefit of the firm even for filing a suit in the_y_ear...1?.96i,_ if
we are unable to accept this submis:_3ion_,M
reason that the material placed before theglcourt
does not disclose any details of the
firm, details of the partne1{:S*--;..:,.p1ace 'b.1_;'.».f,si'ne»ss and
there is no link between a.n.d.ffA'l%.i<I53i.'particularly to
prove the fact '__.pE:r'sohirhadfbeen instituted
the suit was shown in the
register of firr1"3,é'3~Sf firm. In the absence
of plea and hpasic legal position in terms of
be any avail to the plaintiff
to re'scu'_e fthe'-«._su.it--from the vice of the provisions of
V".;-fVSfection 6'9[2}_"of-.t:he Act, so also the decisions relied on by
.jlerarnedf""counsel for the plaintiff in the cases of
'VASANT KOTAK vs RAMNIKLAL MOHANLAL
'loom.-.wbA [AIR 1998 so 877'] and M/S ARVIND
yu ' 7
CONSTRUCTION COMPANY PVT LTD vs M/S KALINGA
MINING CORPORATION [AIR 2007 SC 2144] etc.. do not
advance the case of the plaintiff on the present-f'factyfl
situation.
16. The learned judge of the tria_1.mic_o'urt_--,'" if
specific plea raised by the defendantL;":.ha;s:
an issue on this fact. Nevertheies's,V'in
discussion, We hold that the was
not maintainabie and first point
accordingly.
Re: Point V
17. On a. careful vconsideration of the written statement.
vii:6f""fiDdi'e--«.':th«at 'tile defendant has only Put forth a
territorial jurisdiction of the triai
f'v.T"court. A'--~.Thev'tr_iaiAfcourt has rightly answered this issue
""':iagaiVf1stTthe'defendant. We find no reasons to interfere
the -finding on this issue. This point is answered
V defendant. EU' W L,%_1,__¢__,[h ,
11
Re: Points 3 & 4:
l8. The plaintiff has sought to contend that there
mutual open running account between the plaint;ifff"a1f1v--d:
the defendant as the defendant had puifchasevtl'goo-d:s"':t§n_
credit basis and made payments frorn'».1tir1':;'eeto tsi.1jne'.°' 'f
plaintiff struck the balance as *r.§ri--..__1~4§§':.9s5V
that the defendant was due in a_su:m__
The plaintiff caused a legal uno'ti.ce- statement of
accounts. The defend._ant_.:"on '1<eceipt§._of"»'legal notice,
caused a re_ply_ averrnents of the legal
noticed in toto..._ 4' _
;_':"vV'a"Tl2.t?J':f)];>$llIitiff established its case that the
iidepfendant had mutual open running
' 'i'--A.....account_"by producing books of accounts in terms of
iflrder VII Rule 17 CPC. which reads as under:
"ii .1 Production of shop-book -
iii) Save in so far as is otherwise provided by
the Bankers' Books Evidence Act, 1891 (18
of 1891), where the document on which the
N = .:,"*é"""'"'"/Mir' H'
12
plaintiff sues is an entry in a shop-book or
other account in his possession or power,
the plai.nI'ifl' shall produce the book or
account at the time of filing the ptaint,
together with a copy of the entry on which
he relies. "l '
{2} Original entry to be marked M__c1"r";-51
returned. -- T he Court, or siich officer itji. '
appoints in this behalf, shall:forthu;i.th. n1-ark 4
the document for the p;=_}i'rposeii»._ "of
identification; and, after examining and = '
comparing the copy with the original, shalt,'
it is found correct, certify "ii. to be.scrtand°:b
return the book to the ptaintifi and cause the F
col?!) to befiied. 7 ' k "
In the plaint the plaintiffW1'a3.c:_:l'iiortfi'made any
reference to the bQ~ol:'s_of accoiints"niaintai_ned by it. On
the other of evidence, the
plaintiff hasvvlfprofdncecl delivery challans and
a cornputerizedfllfxstlatenientsviof account for the period
andVflé>llV--08-1996, which, according to
the the plaintiff, are ledger extracts.
The learned counsel for plaintiff would submit that
discarded maintenance of ledger and books of
'vtiaccourits manually and resorted to maintain the same
'through computer and therefore the plaintiff has
13
produced the computerized statements of account. This
submission cannot be accepted, as the suit was
on 20-6-1996 and an electronic record could 9'
as a document only after introduction' of
and 65B to the Indian Evidence
from 740-2000. A 49% 9 V A if i
20. From the plaint aV€TIEiC.i"itS,p.WE there no
necessary pleadings as to the plaintiff
struck the balance a. sum -- as on 1-4-
1995. In books of accounts
in terms and in the absence of
pleading as to basis 2on9 the balance was struck,
1.5.1'l0t..'pi3S;slbl£3nt(a 'acceptvthe claim of the plaintiff that it
had "running accounts with the defendant.
the from the evidence of PW}, we find
~ffjVth_a't-». every" transaction was an independent transaction
lfpaynients made by the defendants were in respect of
"ls'pecifi§c invoices, on one or two occasions the defendant
made consolidated payment for more than one
y\.=. 99*" V' 514*
16
corresponding delivery challans marked as Ex.P.6[A] to
Ex.P.384.~[A) were raised after 24.06.1993. We also fi.1id
some of the invoices do not have corresponding del1°ve'ry'; ..
challans. The delivery challans are prepared _ev.e'12.:.bef0rlel it
the invoices are raised.
In order to demonstrate these disQrepancie_:§,Af0ux'1d=--,l"
in the dates of invoices and dates "of.'deli\rery._eha'1-laris, vve
refer to some of the documéh-tys tsbleg
,_ do "'v711'E1;;h§7b1t
. ....
Sl.No. Numbers, Q Liflte. ' N mllmrs of
. . I11.vo1ce-, delivery
OflI1*~».{01C€SV 2 '
hchallans
Date of
Delivery
challan
1 Ex.p.3'3_ 0 _ lit:T-.._:"'«"Ex.P.85[A] 19.07.1993
2 Ex.;P;3.7 'V-.23'.'07..1'99d3 Ex.P.87[A) 26.07.1993
ll] :'g._29.07'.1993 Ex.P.88[A] 23.07.1993
4 .";02.03.1993 EX.P.89[A) 30.07.1993
E§€';P.9':1. 03.03.1993 Ex.P.91[A] 23.07.1993
["E:~:._P.9"2 13.03.1993 EX.P.92.{A) 05.03.1993
"'31«:}:;'rlJ.93 13.03.1993 Ex.P.93[A] 10.03.1993
3 "Ex.p.94 19.03.1993 Ex.P.94[A) 05.03.1993
N .7/aiixfium
17
EX.P.95
26.08.1993
EX.P.95{A]
19.08.1993
10
Ex.P.96
04.09.1993
Ex.P.96(A)
01.09.11.993...
11
Ex.P.97'
24.09.1993
EX.P.97(A}
.
12
EX.P.98 28.09.1993 Ex.p.9s1A1 13 Ex.}?. 100 01.10.1993 Ex.13.-.1 0911141' 14 Ex.P. 102 05.10.1993 " 1;:-..I?. 102911 . 1'.§1.17Q'.~1-993 15 16 EX.P. 104 Ex.P. 105 10.11.1993 15.11.1995"
V1%:.{.'1é..10--4A(A} .1993 15.11.1993 17 EX.P. 106 1 _ 176. 11. ' 1:
Q5919 "
15.11.1993 18 EXP. 107.; 2 19 Ex. 9.109 9. 0.
1993 ' 10 ;'1;:2--.1'9.93 . 1Q7[A) 22.11.1993 0Ex.P;921o9(A) 26.11.1993 20 Ex. 9.11.10 1 1012. 1993... .EX.P.11O(A} 18.11.1993 21 Ex.P.1 12 -. |V "1 7. 2.' 199:5 Ex.P.112(A) 14.12.1993 33.219. 1.1411. 1
321.'119;11993 Ex.P.114[A) 28.12.1993 23 ..
» E' V .1 1 M 1.
f'Ex.'P._1v"1.6* ' _ 07.01.1994 Ex.P.116(A) 06.01.1994 'E-V1124 P. 117i ' 13.01.1994 EX.P.117[A) 12.01.1994 21.01.1994 Ex.P.118[A) 22.01.1994 Ex.P.120(A] 18 27 EX.P.121 .
24.01.1994 EX.P.121[A] 22.01.1994 28 EX.P.123 31.01.1994 EX."P.123[A) 29.01.1994 29 EX.P. 124 05.02.1994 EX.P.124(A] 04.02."
30 EXP. 126 05.02.1994 EX.P.126(A] 04.02.. 1' 31 EX.P. 128 10.02.1994 EX.P'.' 1'281A)_ 32 EX.P. 129 17.02.1994 VEX.P1.1'1.29*(11_41 33 EXP. 131 24.02.1994 131 (A1 Q e2.1f'.2021._11994 34 35 EXP. 133 EX.P. 134 24.02.1924 02.03.
."E55.-1?-11._3131{'5] 21.02.1994 28.02.1994.
36 37 EX.P.136 .11'05;..03 4.. 02.03.1994 _EX.P.'g137[A] 05.03.1994 38 ' 190111102391 . ~ 138[A] 09.03.1994 39 ' EX.P.139(A] 10.03.1994 40 EX4.;P."14O 1 EX.P.140[A] 12.03.1994 .41 42 "
A 11ave tabuiated V71L1:1"clt....t1;1C invoices were E:x'.1v. 142.
EX.P.142[A) 16.03.1994 EX.P.143[A] 19.03.1994 the above data to demonstrate raised after the goods were 3\)) C'/L :
20
in ink. Thus we find the aforestated copies of delivery challans bear two dates. The first one is a carbon impression of the date and the other one subsequent insertion. The learned trial Judge V' to notice these discrepancies. 'Ifhe'sc--_ loomlarge in View of evidence of that plaintiff had not confirmed'*iifit..h the receipt of goods under theaforestat'ed_:delixrery challans. We notice fromathe certvinfijedv'coipiesk extract marked as «co>ntai_r.sj&'Arzfn'e§rures~Al. to A9 that defendant :4p'a..ym_ents by way of cheques against each fI'he'«.._ucomputerized statement of 1e'd.ger markue'dv.a.svEx.P.385 relates to the period between' 01 and 31.03.1993. The entries in this '-._,fivOCurnentfAdo.fno:t_crorrespond to the statement of accounts _l_fpi'_f.f_urnipshed the banker of the defendant marked as 'j~.'pVVVEx."}5I_3.El5'":;Annexure--1. From the entries found in the H 'fiiflcofrnpuiterized ledger extracts for the period between o.iI.'o4.1994 and 31.03.1995 marked as Ex.P.387. we find N 22 t goods and acknowledged receipt of the goods mentioned in delivery challans. f
24. When the suit was instituted for recovery':_f:of.
price under different invoices, the p1:iinti'ff prove each and every transaction * Plaintiff was bound to prove th'at:"'»thevh placed orders for supply therein' and that goods were delivered agents and the recveéipgtliilhof by the defendant or its Fvigolfn the evidence of PW1, we dognot refehfence to these facts. PWI has admitted the pllaintiff had not confirmed with the de'fenda_n't:.regarding"the___rBCeipt of goods supplied under various "del 'a-1_1ans. statement of accounts issued by the ..f_lpi'_:«.ba'nl:er of ~~de.fendant instead of proving the case of the that there was open mutual running account H the plaintiff and the defendant, would prove that V 23 the defendant had made payments through cheques corresponding to specific invoices and that there neither any running account nor ad hoc payn;ie'nt..'_' .;. enable the plaintiff to adjust the airipopunt it earlier outstanding invoices and to --'a 'o.alai*ice"
contended by the plaintiff. The plaintiff not' particulars of the invoices,' gohodsivnfiantl the outstanding due in respecltlllofl and the plaintiff has failedto in respect of the aforesaid"'ih_VoAioeV§." production of extract of statenit-Jntspp per EXPSQS will not help the plai'n.t_iff to p_1;oiie defendants in fact was due in astim oi'-'12,l'2,§22/--, as contended By the judge of the trial court Without
-..f.f'_j'~.e2_tarnining'~the contents of the documents in proper by accepting the case of the plaintiff that 'there__7was an open mutual running account between the "parties, has held that the plaintiff was due in a sum of 24 Rs 2,12,922/--, as claimed by the plaintiff. In View of the above discussion, we hold that the plaintiffs suit within time as it related to the credit bills after 21.06.1993 and point no.4 is answered it The plaintiff has failed to transactions mentioned in the»i'a.foresai_d' delivery chailans. We hold that to prove the suit transactionsi" _\7~A,Te No.3 in negative. V' A T T V
27. The learned." without consideringwhtphepip without appreciating the OFEI1 arid enidence and by ignoring the specific rais.ed«'in the written statement, has decreedTt'hse"drawing an adverse inference against T T '-.,...the deiendant.iorV_1iot stepping into the Witness box. The learned counsel for the piaintiff has relied upon T:*--'.V.Vt1ie"ijudgnient of the Supreme Court in the case of T vs MANIK RAO [AIR 1999 sow 11291, to . , £L'A£/K' 25 contend that none on behalf of defendant had stepped into the witness box, though the defendant contended that the plaintiff is an utter stranger was no business dealings with the plaintiff. on*'the::~face: of if documentary evidence adduced thei_.:plaini.iff, hthe defendant, should have adduced'evidence.,
29. We see from the records having denied any transaction had not adduced evidence. This case of the defendant to the lanfutter stranger to the defendant. conduct of the defendant would not the plaintiff to enable it to havte' a in itlslllavvoaa for the reasons assigned by us while points 1, 3 8: 4. We, therefore, hold ll5....vtvhat judgment and decree cannot be
-. - stained. * _ "1.
the result, the appeal is allowed with costs and if judgment and decree dated 20~12~2002 passed in OS no ("cm 26 No 4084 of 2996, on the file 0fXXX1 Additional City Civil H Judge. Bangalore.
stands dismissfid.
The suit in OS No 4084 of