Karnataka High Court
M/S Lotus Energy Systems (P) Ltd vs M/S Batliboi Spm Pvt Ltd on 10 December, 2010
Bench: Ajit J Gunjal, B.V.Nagarathna
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE Tom DAY OF DECEMBER 201Q*]_;I'R._V PRESENT THE HONBLE MR. JUSTICE 1"§«I}i.T,U I 4- THE HONBLE MRS.JUSTIL'If§'~ :3 R.F.A.NQ. 183QdI§"2007 I I BETWEEN I I I I I M /S LOTUS ENERGY_SYSTE'Iv1S"«(R)"LTD I " 'v " NO.107 NANDIDURGAjROADg ' V; JAYAMAHAL, _}3;mGALC)EE%',«--_ 560 041- . ' REPRESENTED TTS' --D1REjET'DRAi. ' MR v1DYADI:IAR._S_"', R I = ...APPELLANT (BY SR1: VIVEK__I*1QLL¢A,_ AUX/_)" AND , . . . .. /S"~BA'1*LiEt3'1 SRM 1>VT"L"TD FORM,ER1X .32}, 2.1801 ENGINEERS (BIR) LTD., PLOT 'N.Q.24;._:"1«1_1 f»'IA.I_N,. V.EERASAI\1 DRA'jIN"DUSTR1AL AREA ' 3 QTH K HQSUR ROAD ANGALORE--A-- 560 100 ~ 1«.1':V»-RERRESENTE'D BY ITS , CR1.EF IExI5:CUTxVE OFFICER ANDp.QwfiER DEATTORNEY HOLDER MR PR 'MAJUMDAR .. . RE3SPONI)EN'T (BY SR1: V SANJAY KRISHNA. ADV.) Limited etc. In the usual course of business. orders are taken from the purchasers and in turn orders are also placed by it to the said manufacturers and makes profit by sale of goods and machinarie'ps'"'«l%t.(;._as -- defendant had placed purchase 31.7.1989
, 26.6.1989 & purchase orders, the Value in turn, the plaintiff has placed svliirloskar Electricity Company Kirloskar Cummins l'un;e. ':the.--..:receipt of the consigm:;1ents;'AVtlf1Ve s"aid_41i1.achin.elsllwere supplied to the defendant: Va 'The is that the entire amount not been paid but the piaintift reeeiveldlmonly a sum of ?°.17,56,904/- from tli--ellld.ete:1vdan;t.ll balance being a sum of ?.2.~4l~6,586/~ . Thus the present suit is filed for recovery of the said M " ' unpaid amount.
It is their case that due to the escalation of it :l_.:i11'aterial cost, the cost of the goods supplied had "increased. The defendant pursuant to a letter dated 15.7.1989 had acknowledged that it is willing to abide /"2 by the revised prices in respect of the supplies, which were made. Thus according to them t.he said amount_"*i.s due.
6. The defendant entered appearance "
written statement inter alia liable to pay and would contend business transaction with would take up a plea th:at_"the'i'entirellVarnountf'w'hich is due to them towards the _.r#jf'l:.tfft;V'ell"rnachinaries have aiready bgeericjiaidg is'«.Als"{lJl-e<:i.f..i__'.3i.fel1llly denied by defendants thattl:e'-.total'-ealuei of the purchase orders placed Waslhof as contended by the _.---p'laint_iff incorrect,____A.ccording to the defendant the l.'V_1{:1i1,l1l€"'Wa--SvlOf1lSfl"va' sum of ?'.18,92,915/-- and that the i11Voi.cevl'\»'alu.€%j---- claimed by the plaintiff for a sum of é was incorrect. It is their case that the had supplied an alternator manufactured in the 1987 against the purchase order dated 16.1.1989. specific defence of the defendant is that they had not agjreecl for the revised price. Having regard to the escalation. of the raw material. they would stand by their fl defence that they are liable t.o pay a sum of ?'.17,39.008/--.
7. On the basis of these pleadings, t.he Trial Judge has framed the following issues:
[i] Whether the defendant.fpt'lo'Vese_ that letter dt: 15.7.1989 was ohtsinednby _ the plaintiff by A'v-ggtoss representation abouVt=.thex ine'rees'e the price? V. I it it {ii} Whether the plfotrvesithat he is entitleii to, ma'l<:"e'de.d1."1eti_Q.ns in the e1:«1ii'i*i-"a,s_ 'a1tle'ge'd..__i1;-- paras 7. 8 and 9 of A ' A t:l"1'e V .sta.te'm'ent?
{iii} _ Whethe1""th'e Tplaintiff is entitled for 2 , i:q.terest éiselainied in the suit?
__.(iiv) _'f»t.ewiia:"g.rder?
It: brouglit to our notice that after the Thatlleornnienced. an application was moved by the " tplaititiff to frame additioiml issues and aciclitiional issues T "have. been franied.
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9. The learned Trial Judge insofar as issue No.2 was of the View that the burden is essentially on defendant to prove that the letter dated 15.7.
obtained by the plaintiff by 9 misrepresentation about the increase the answered it in negative. Another ree'.orded 9' the learned Trial Judge is that ltl1.e.l'plaintiffl_ to recover the suit arnount.l'\'.,,,p,, ll
10. It is noticed of the plaintiff-Company' 16.11.1998 and Ex.I5'l--1etter9llof dated 16.11.1998 was marked and*..reeeivl'e.d in" gfigvidenee. We also notice that ,--Elie v.»»rnat.terV adjourned for further V9exarninati,on.~iniehief. Eventually, the learned Trial JLid'ge"liearclfthe arguments and decreed the suit of the . l3laintili"s,l"as against which the present: appeal is filed. it ll/Ir.Vivek Holla. learned Counsel appearing for defendant. submits that PW} after tendering "evidence by way of exarninationeinwehief. did not make himself available for eross--exain_inat.ior1. He further Q 4/ //"
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sheet maintained by the learned Trial Judge. The following points would arise for our consideration:
(1) Whether the Trial Court was in deoreeing the suit of the when the witness of plain-.'t'itf" ' not make himself availableforulerosg;','..,,eW examination?
(ii) Whether the defenda'nt.l'w_as an opportunity. lead' egriidghcye onfthe additional issiie-sf'? 0' V POINI' N0.1 V It tobe evidence of PW} was filed by way of 1 1. 1998 and thereafter the .-vV.rr1att_er:, beingV______adjourned from time to time.
the matter was listed on 26.10.2006 for"fti;'t,hei".e:{§a.rini11atio11~i11--Chief of PW}, we find that except forgfiling of an affidavit no serious progress has indeed, we notice that at no point. of time PW1 has made himself available for cross» ., ';*examination. This eireL1msta11ee itself would be a good ground for us to aside the judgment. and decree 4' passed by the learned Trial. Judge and remit. the matter. 7%; 9 It is also to be noticed that the learned Trial Judge during the course of the judgment has made reference to Various dates on which the matter was set evidence. Indeed, when the matter Was"
further examination~in~chief the adjourned the matter from tinfte to it on 8.6.1999 written statementlliiarrie to application under Section' l 'Civil l3rocedure and the same was a1lowAedv:'o1f1l ~ (Rupees One Hundred ithe lrj1iat'te1*--------viIas posted for framing "ll.
14. 'According'.jtod"t.he4.learned Trial Judge the records--i.tsAelflt}vo:nidhvlretfealdthat on 9.1.2003 the issues 'lgivifere l'f1'arn-ed and thevlinlatter was posted for recording of defendant. Thus on 7.4.2003 affidavit by l wayiof e:;ai;1ié1ation«in~chief of DWI was filed and 12 it 4l"dloc.un'1ents"were marked. Indeed, we notice that PW1 at n_o'~_'point of time was made available for cross~ it ..l_4'e2:var::1ination. Thus we are of the Vi€W that the learned "Trial Judge could not have in the circumstances decreed the suit of the plaintiff. ,,fl ./..s"'"
Since, both the plai11t:iff as well as the defeuclazlt are before t:l:1i_e5 Court they shall take this p1'0ceedi11g_; as 1:1<>tice to "
ti1e111 and appear before the lca11'n;:~*c-1- , A' Trial Judge 011 O7.0l .201 1..
The c:1efe11da1'1t--appe11a11l;.' refund of admissible Cotirt Registry to send t.hé"._V_r'ec."drdfls_ forthwith.
Sdf~ EUDGE