Bangalore District Court
Sri. Gangamahimaiah vs M/S Pragathi Technologies on 25 February, 2022
1 Com.O.S.No.226/2021
IN THE COURT OF THE LXXXVIII ADDL. CITY CIVIL &
SESSIONS JUDGE (EXCLUSIVE DEDICATED COMMERCIAL
COURT): BENGALURU CITY. (CCH-89)
Present: Sri. P.J. SOMASHEKARA, B.A., LL.M,
LXXXVIII Addl. City Civil & Sessions Judge
Bengaluru City.
Dated this the 25th day of February 2022
Com.O.S.No.226/2021
Plaintiff: Sri. Gangamahimaiah,
S/o Chikkagangaiah,
Aged about 59 years,
Rep. by his GPA Holder
Son Dr. Chetan Kumar G.,
Aged about 33 years,
R/at Govenahalli, Kuluvanahalli Post,
Nelamangala Taluk,
Bengaluru Rural - 562 111.
(By Sri. M.V.G., Advocate)
-vs-
Defendant: M/s Pragathi Technologies,
Rep. by its Manager/ Senior Manager,
Authorized Signatory,
Sri. Pradeep Kamath, Major,
At No.9, 8th Main, 4th Cross, SLV
Industrial Estate, Near Manjushree
Garments, Thigalarapalya Main Road,
Peenya 2nd stage, Bangalore - 58.
(By Sri. G.R.R., Advocate)
2 Com.O.S.No.226/2021
Nature of the suit Money suit
Date of institution of the 15.03.2021
suit
Date of commencement of 23.02.2022
recording of the evidence
Date on which the 25.02.2022
judgment was pronounced
Total duration Year/s Month/s Day/s
00 11 10
JUDGMENT
This is a suit filed by the plaintiff against the defendant for recovery of Rs.8,41,195/- with interest @ 18% p.a. from the date of the suit till its realization.
2. Brief facts of the plaint are as under :
The plaintiff in his plaint has alleged that that he has purchased Pragathi Pugmill Clay Brick machine 15 HP provision for diesel engine attachment production capacity 800 to 1000 bricks per hour approx and shaping and punching machine and Pragati clay brick cutting machine, belt conveyor for clay feeding and trolleys for shifting brick for a worth of Rs.7,91,195/- for a condition that after the payment the machines for making bricks will be supplied the same within 40 days from the date of 3 Com.O.S.No.226/2021 payment. But machine was delivered after lapse of 23 days by the defendant and he has paid entire amount to the defendant through DD dated 28.01.2016 for Rs.7,91,195/- and he has purchased the said machines as per the defendant invoice No.330 dated 02.04.2016 for sum of Rs.7,91,195/- and he has made payment on 28.01.2016 through the DD drawn on Canara bank, Kuluvanahalli Nelamangala Taluk for a sum of Rs.7,91,195/- and he has obtained loan form the Canara bank for purchase of the machine for sum of Rs.5,93,000/- and the loan is still pending due to defendant's negligence and not supplied the good condition machine and who is a farmer and intends to make brick in large scale and sell the same and clear the loan which availed from the bank.
3. The plaintiff in his plaint has further alleged that the bank till this day has imposed interest and who is also pay the interest to the bank and also pay the amount to the defendant, after making the entire machinery the defendant has supplied the defective machinery and he has paid the entire amount and the defendant is also received entire amount and issued a tax invoice and after lapse of 23 days from the date of payment, as 4 Com.O.S.No.226/2021 per the defendant quotation dated 31.12.2015 the defendant has delivered the machines booked by him within 40 days but the defendant has not abide his own quotation conditions, after delivery of the machinery has not properly worked and not at all produced 800 to 1000 bricks per house, due to the inconvenience and due to the part of negligence on the part of the defendant did not repay the bank loan till this day and he came to know about the defect of the machinery as his son being the GPA holder intimated the same to the defendant and requested to visit the spot and check the defective machinery, but the defendant did not come to the spot nor checked the machinery. Later on he came to the spot and checked the defective machinery and assured that he will replace the machinery and to supply the new machinery and even has assured through messages and the defendant has also undertaken to deliver the new machinery in the place of defective machinery at the time of inspection and who has believed the words of the defendant and waited for replacement and his son was in touch with the defendant being the GPA holder demanded sum of Rs.50,000/- as additional cost for making new machine by way of cash and his son has paid Rs.50,000/- by way of cash after seeking a demo of a new 5 Com.O.S.No.226/2021 machine sent by the defendant through whats app messages and photos, after receipt of the cash of Rs.50,000/- by the defendant has informed that the manufacture of the new machine requires one year time and himself and his son were waited for making a new machine after a new one the defendant has sold new machine assured to some other person for higher price without permission and without intimation, when he was purchased the machine earlier and further payments for making new machines for each purpose but the defendant sold the same to the 3 rd parties which ordered by him for his own purpose, but the defendant has not at all supplied the new machine, after receipt of the entire amount along with additional amount who sold the same to the 3rd party by higher price with an intention to cheat him.
4. The plaintiff in his plaint has further alleged the defendant has not supplied the machinery in a good conditions and the new machine also and the defendant was also admitted the machinery which supplied are defective, though agreed to supply new machines but they did not do so nor refund the amount which received by the defendant and the defendant has not supplied 6 Com.O.S.No.226/2021 the machines within the warranty period nor rectified or replaced the defective machinery, because of negligent act who has suffered lot of monetary loss from the defendant and he has waited all these days with a hope that the defendant will supply a new machine, but the defendant has failed to make any attempt to supply the new machine or refund the entire amount which paid by him, thereby he has requested the defendant for refund of the amount through email, whats app messages and sms, finally got issued a legal notice on 26.07.2018 through RPAD calling upon the defendant to refund the amount nor to supply new machine, but the defendant has issued false reply and the defendant is liable to refund the amount of Rs.8,41,195/- along with interest @ 18% p.a. The cause of action for the suit which arose in Bangalore City on 26.07.2018 when he has got issued legal notice calling upon the defendant either to refund the amount which paid nor to replace the new machines and when the defendant issued a reply notice within the jurisdiction of this court and prays for decree the suit.
5. In response of the suit summons, the defendant has been appeared through its counsel, but in spite of sufficient time did 7 Com.O.S.No.226/2021 not chosen to file the written statement, thus the written statement of the defendant taken as not filed.
6. The plaintiff in order to prove the plaint averments has examined his GPA holder as PW.1 and got marked the documents as Ex.P.1 to P.13 and the plaintiff has not examined any witness in its favour.
7. Heard the arguments on the plaintiff side.
8. Now the points that arise for court consideration are:
1. Whether the plaintiff is entitled for the relief as prayed for?
2. What order or decree?
9. My answer to the above points are as under:
Point No.1: In the Affirmative; Point No.2: As per final order, for the following;
REASONS
10. POINT NO.1: The plaintiff has approached the ground on the ground that has ordered and purchased Pragathi Pugmill Clay Brick Machine 15 HP provision for diesel engine attachment production capacity of 800 to 1000 bricks per house and shaping and punching machine, Ragati clay brick cutting machine, belt 8 Com.O.S.No.226/2021 conveyor clay feeding and trolleys for shifting brick for worth of Rs.7,91,195/- from the defendant, but the said machine delivered with defective, hence, the plaintiff requested to refund the amount, but in spite of repeated request and demand, the defendant did not pay the due amount, thereby got issued a legal notice calling upon the defendant for payment of the amount, but in spite of service of notice did not come forward to pay the amount, thereby the plaintiff has filed the instant suit against the defendant.
11. The plaintiff in order to prove the plaint averments has examined his GPA holder as P.W.1 who filed his affidavit as his Chief-examination by reiterating the plaint averments stating that the plaintiff purchased Pragathi Pugmill Clay Brick machine 15 HP provision for diesel engine attachment production capacity 800 to 1000 bricks per hour approx and shaping and punching machine and ragati clay brick cutting machine, belt conveyor for clay feeding and trolleys for shifting brick for a worth of Rs.7,91,195/- for a condition that after the payment the machines for making bricks will be supplied the same within 40 days from the date of payment. But machine was delivered after lapse of 23 days by 9 Com.O.S.No.226/2021 the defendant and he has paid entire amount to the defendant through DD dated 28.01.2016 for Rs.7,91,195/- and he has purchased the said machines as per the defendant invoice No.330 dated 02.04.2016 for sum of Rs.7,91,195/- and he has made payment on 28.01.2016 through the DD drawn on Canara bank, Kuluvanahalli Nelamangala Taluk for a sum of Rs.7,91,195/- and he has obtained loan form the Canara bank for purchase of the machine for sum of Rs.5,93,000/- and the loan is still pending due to defendant's negligence and not supplied the good condition machine and who is a farmer and intends to make brick in large scale and sell the same and clear the loan which availed from the bank.
12. It is further alleged that the bank till this day has imposed interest and who is also pay the interest to the bank and also pay the amount to the defendant, after making the entire machinery the defendant has supplied the defective machinery and he has paid the entire amount and the defendant is also received entire amount and issued a tax invoice and after lapse of 23 days from the date of payment, as per the defendant quotation dated 31.12.2015 the defendant has delivered the 10 Com.O.S.No.226/2021 machines booked by him within 40 days but the defendant has not abide his own quotation conditions, after delivery of the machinery has not properly worked and not at all produced 800 to 1000 bricks per house, due to the inconvenience and due to the part of negligence on the part of the defendant did not repay the bank loan till this day and he came to know about the defect of the machinery as his son being the GPA holder intimated the same to the defendant and requested to visit the spot and check the defective machinery, but the defendant did not come to the spot nor checked the machinery. Later on he came to the spot and checked the defective machinery and assured that he will replace the machinery and to supply the new machinery and even has assured through messages and the defendant has also undertaken to deliver the new machinery in the place of defective machinery at the time of inspection and who has believed the words of the defendant and waited for replacement and his son was in touch with the defendant being the GPA holder demanded sum of Rs.50,000/- as additional cost for making new machine by way of cash and his son has paid Rs.50,000/- by way of cash after seeking a demo of a new machine sent by the defendant through whats app messages and photos, after receipt of the cash of 11 Com.O.S.No.226/2021 Rs.50,000/- by the defendant has informed that the manufacture of the new machine requires one year time and himself and his son were waited for making a new machine after a new one the defendant has sold new machine assured to some other person for higher price without permission and without intimation, when he was purchased the machine earlier and further payments for making new machines for each purpose but the defendant sold the same to the 3rd parties which ordered by him for his own purpose, but the defendant has not at all supplied the new machine, after receipt of the entire amount along with additional amount who sold the same to the 3rd party by higher price with an intention to cheat him. Thereby the plaintiff has filed the instant suit against the defendant.
13. It is an admitted fact the plaintiff has filed the instant suit against the defendant on the ground that the defendant had purchased books on credit basis as per the invoices. Thus this court drawn its attention on Sec.2(i)(c)(xviii) of Commercial Courts Act, 2015 which reads like this:
(c) "commercial dispute" means a dispute arising out of-
(i) ordinary transactions of merchants, 12 Com.O.S.No.226/2021 bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents;
(ii) export or import of merchandise or services;
(iii) issues relating to admiralty and maritime law;
(iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing and financing of the same;
(v) carriage of goods;
(vi) construction and infrastructure contracts, including tenders;
(vii) agreements relating to immovable property used exclusively in trade or commerce;
(viii) franchising agreements;
(ix) distribution and licensing agreements; (x) management and consultancy agreements; (xi) joint venture agreements; (xii) shareholders agreements; (xiii) subscription and investment
agreements pertaining to the services industry including outsourcing services and financial services;13 Com.O.S.No.226/2021
(xiv) mercantile agency and mercantile usage;
(xv) partnership agreements;
(xvi) technology development
agreements;
(xvii) intellectual property rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits; (xviii) agreements for sale of goods or provision of services;
(xix) exploitation of oil and gas reserves or other natural resources including electromagnetic spectrum;
(xx) insurance and re-insurance; (xxi) contracts of agency relating to any of the above; and (xxii) such other commercial disputes as may be notified by the Central Government.
The provision under Sec.2(c)(i)(xviii) which referred above is very much clear sale of goods are governed by Sale of Goods Act, they pertain to movable properties, any dispute of sale or agreement to sale of goods of specified value do come within the jurisdiction of Commercial Courts Act. The clause also includes the services and guarantee given for the goods sold. The service or guarantee 14 Com.O.S.No.226/2021 may be oral or written. So the facts which alleged in the plaint comes under the commercial dispute.
14. Now the question is whether the dispute which stated supra comes under the jurisdiction of commercial court. Thus, this court drawn its attention on Sec.6 of Commercial Courts Act, 2015 which reads like this:
Section 6: Jurisdiction of Commercial Court.
6. The Commercial Court shall have jurisdiction to try all suits and applications relating to a commercial dispute of a Specified Value arising out of the entire territory of the State over which it has been vested territorial jurisdiction.
Explanation.-For the purposes of this section, a commercial dispute shall be considered to arise out of the entire territory of the State over which a Commercial Court has been vested jurisdiction, if the suit or application relating to such commercial dispute has been instituted as per the provisions of sections 16 to 20 of the Code of Civil Procedure, 1908 (5 of 1908).
15 Com.O.S.No.226/2021The above provision is very much clear that the commercial court shall have the jurisdiction to try all suits and applications relating to commercial dispute.
15. Now the question is whether this court having the pecuniary jurisdiction to adjudicate the matter which is in dispute. Thus, this court drawn its attention on Sec.3 of Commercial Courts Act, 2015 which reads like this:
Section 3: Constitution of Commercial Courts.
3. (1) The State Government, may after consultation with the concerned High Court, by notification, constitute such number of Commercial Courts at District level, as it may deem necessary for the purpose of exercising the jurisdiction and powers conferred on those Courts under this Act:
2[Provided that with respect to the High Courts having ordinary original civil jurisdiction, the State Government may, after consultation with the concerned High Court, by notification, constitute Commercial Courts at the District Judge level:
Provided further that with respect to a territory over which the High Courts have ordinary original civil 16 Com.O.S.No.226/2021 jurisdiction, the State Government may, by notification, specify such pecuniary value which shall not be less than three lakh rupees and not more than the pecuniary jurisdiction exercisable by the District Courts, as it may consider necessary.] 3[(1A) Notwithstanding anything contained in this Act, the State Government may, after consultation with the concerned High Court, by notification, specify such pecuniary value which shall not be less than three lakh rupees or such higher value, for whole or part of the State, as it may consider necessary.]
16. Admittedly, the Commercial Court Act was came to be amended on 03.05.2018. By virtue of the amendment and by virtue of the notification, the pecuniary value of the Commercial Courts Act shall not be less than Rs.3,00,000/-. In the instant case, the claim amount which shown in the plaint is of Rs.8,41,195/- and this court having the pecuniary jurisdiction to adjudicate the matter which is in dispute.
17. The plaintiff in support of oral evidence has produced the documents marked as Ex.P.1 to P.13. Ex.P.1 is the GPA which 17 Com.O.S.No.226/2021 executed in favour of the P.W.1 to prosecute the case. Ex.P.2 is the original quotation dated 31.12.2015 reflects about for manufacture and supply of the brick making machine for Rs.7,91,195/-. Ex.P.3 is the tax invoice reflects regarding supply of brick machinery for Rs.7,91,195/- which corroborate the Ex.P.2.
Ex.P.4 is the document which issued by the Canara bank reflects the plaintiff has availed loan of Rs.5,93,000/- to purchase the brick machinery. Ex.P.5 is the statement of loan account. Ex.P.6 is the email correspondence letter. Ex.P.7 is the whatsapp chats. Ex.P.8 is the legal notice which issued to the defendant calling upon for payment of Rs.8,41,195/- due to defective machines which supplied by the defendant. Ex.P.9 to 11 are reflects the plaintiff got issued a legal notice through RPAD which was served on the defendant. E.xP.12 is the reply notice which issued by the defendant. Ex.P.13 is the certificate filed under Sec.65-B of the Evidence Act. So the documents which are marked as Ex.P.1 to P.13 are coupled with the oral evidence of P.W.1.
18. If at all the the plaintiff has not placed the orders for supply of brick machine and the defendant has not received the amount nor supplied the defective machinery, in response of the 18 Com.O.S.No.226/2021 suit summons though he has appeared through its counsel in spite of sufficient time did not chosen to file the written statement, otherwise he would have chosen to file the written statement by denying the plaint averments. So the contents of the plaint and the documents which are marked as Ex.P.1 to P.13 are remained unchallenged and the plaintiff has proved his case through oral and documentary evidence. Hence, I am of the opinion that the point No.1 is answered as partly in Affirmative.
19. POINT NO.2: In view of my answer to point No.1 as stated above, I proceed to pass the following;
ORDER The suit of the plaintiff is decreed with cost. The defendant is hereby directed to pay the decretal amount of Rs.8,41,195/- with interest @ 18% p.a. from the date of suit till its realization. Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected by me and then pronounced in the open court on this the 25th day of February, 2022) (P.J. Somashekara) LXXXVIII Addl. City Civil & Sessions Judge, (Exclusive Dedicated Commercial Court), Bengaluru City.
List of witnesses examined on behalf of plaintiff:
P.W.1 Chetan Kumar 19 Com.O.S.No.226/2021 List of witnesses examined on behalf of defendant:
Nil List of documents exhibited on behalf of plaintiff:
Ex.P.1 General Power of Attorney
Ex.P.2 Original quotation dated 31.12.2015
Ex.P.3 Tax invoice dated 02.04.2016
Ex.P.4 Term loan sanction intimation dated
22.01.2016
Ex.P.5 Statement of loan account
Ex.P.6 E-mail correspondence letter dated
21.05.2018
Ex.P.7 Whats app chat in 6 pages
Ex.P.8 Copy of the legal notice dated 25.07.2018
Ex.P.9 Postal receipt
Ex.P.10 Unserved envelope cover
Ex.P.10(a) Copy of the notice
Ex.P.11 Postal acknowledgment
Ex.P.12 Copy of the reply notice dated 20.09.2018
Ex.P.13 Certificate filed U/Sec.65(B) of Evidence Act.
List of documents exhibited on behalf of defendant:
Nil (P.J. Somashekara) LXXXVIII Addl. City Civil & Sessions Judge, (Exclusive Dedicated Commercial Court), Bengaluru City 20 Com.O.S.No.226/2021 Judgment pronounced in the open court vide separate;
ORDER The suit of the plaintiff is decreed with cost.
The defendant is hereby directed to pay the decretal amount of Rs.8,41,195/- with interest @ 18% p.a. from the date of suit till its realization.
Draw decree accordingly.
(P.J. Somashekara) LXXXVIII Addl. City Civil & Sessions Judge, (Exclusive Dedicated Commercial Court), Bengaluru City.