Karnataka High Court
National Small Industries Corporation ... vs M/S Tumkur Conductors Pvt Ltd on 5 September, 2013
Bench: Mohan.M.Shantanagoudar, B.Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF SEPTEMBER, 2013
PRESENT
THE HON'BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA
REGULAR FIRST APPEAL NO. 2641 of 2006
BETWEEN
NATIONAL SMALL INDUSTRIES
CORPORATION LTD.,
THE COMPANY REGISTERED '
UNDER THE COMPANIES ACT 1956,
WHOLLY OWNED BY GOVERNMENT OF INDIA,
HAVING ITS REGISTERED OFFICE
AT NSIC BHAVAN,
OKHLA INDUSTRIAL ESTATE,
NEW DELHI - 110 020.
HAVING ONE OF ITS BRANCH OFFICES.
AT ISICOS BUILDING NO.6 & 7,
INDUSTRIAL TOWN, RAJAJINAGAR,
BANGALORE - 560 044.
REPRESENTED BY ITS BRANCHMANAGER,
SRI. T. VENKATESHWARAN.
... APPELLANT
(By Sri. S. KRISHNASWAMY, ADV.)
AND
1. M/S. TUMKUR CONDUCTORS PVT. LTD.,
HAVING OFFICE AT NO 6,
2
3RD MAIN, VYALIKAVAL,
BANGALROE - 560 003.
REPRESENTED BY DEFENDANTS
2 TO 5 ALSO HAVING OFFICE AT
# 41, 3RD PHASE, SANCOALI,
INDUSTRIAL ESTATE,
ZUARI NAGAR, GOA-403 726.
2. SRI. T. C. BHANDARI,
TUMKUR CONDUCTORS PVT. LTD.,
NO. 6, 3RD MAIN, VYALIKAVAL,
BANGALORE - 560 003.
3. SRI. DINESH BHANDARI,
DIRECTOR,
TUMKUR CONDUCTORS PVT. TLD.,
NO. 6, 3RD MAIN, VYALIKAVAL,
BANGALORE - 560 003.
4. SRI. BHARAT BHANDARI,
DIRECTOR,
TUMKUR CONDUCTORS PVT. LTD.,
# 6, 3RD MAIN, VYALIKAVAL,
BANGALORE - 560 003.
5. SRI. B. K. RAMDAS,
TUMKUR CONDUCTORS PVT. LTD.,
NO. 6, 3RD MAIN, VYALIKAVAL,
BANGALORE - 560 003.
... RESPONDENTS
(By Sri. M. UNNIKRISHNAN, ADV. FOR R.1 TO R.4 (ABSENT))
THIS RFA FILED U/S 96 0F CPC AGAINST THE
JUDGEMENT AND DECREE DATED 22.08.2006 PASSED IN
OS.NO.4412/2001 ON THE FILE OF THE XIX ADDL. CITY
CIVIL AND SESSIONS JUDGE, BANGALORE CITY,
DISMISSING THE SUIT FOR RECOVERY OF MONEY.
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This appeal coming on for hearing, this day,
Mohan .M. Shantanagoudar J., delivered the following:
JUDGMENT
This appeal is filed against the judgment and decree dated 22.08.2006 passed in O.S. No.4412/2001 by the XIX Addl. City Civil and Sessions Judge, Bangalore City. By the said judgment and decree, the suit filed by the appellant herein for recovery of a sum of Rs.1,98,292/- with interest thereon is dismissed. The unsuccessful plaintiff before the trial Court has filed this appeal.
2. Heard the learned Counsel for the appellant and perused the records. The respondent's counsel is absent.
3. The appellant has filed IA No.I and II of 2012 praying to permit the appellant to produce the original ledgers maintained by the appellant and to examine the witness. The said applications are opposed by the respondent by filing statement of objections. Since, the applications are filed under Order 41 Rule 27 of CPC 4 same are taken up for consideration along with the main appeal.
4. The case of the appellant is that the appellant has been assisting Small Scale Industries/Units through it various schemes including procurement of raw materials. The appellant is a company wholly owned by Government of India. The first defendant is a private limited company represented by its Directors i.e. defendants 2, 3 and 4; the first defendant approached the appellant in August, 1993 for financial assistance under its IRMA scheme for procurement of Aluminium raw materials from NALCO,BALCO,MALCO and INDAL. The first defendant had agreed that the appellant would pay the value of the goods directly to the manufacturers of the materials and after the goods were delivered to the first defendant by the manufacturers of the Aluminium, first defendant would pay the money along with service charges and interest. A meeting was held on 26.02.1994 in which it was decided 5 that the appellant could levy charges as decided in the meeting. Pursuant to the agreement between the parties, appellant placed an order with NALCO on 14.05.1996 for supply of 8.82 metric ton of EC grade aluminium wire rod valued at Rs.6,89,456/- under invoice No. CWR 2215 dated 18.06.1996, bill was raised in favour of the appellant and goods were dispatched through Maruthi Freight Movers Pvt. Ltd., to first defendant by the manufacturer directly. On 24.06.1996 appellant raised invoice No. 378 requesting the first defendant to pay a sum of Rs.6,89,456/-. First defendant paid certain sums of money periodically in all to the tune of Rs.7,67,110/- to the appellant. The said money was appropriated towards interest and service charges as agreed between the parties and after so adjusting, the defendant No.1 was still due for a sum of Rs.83,643/- towards principal amount which has to be discharged along with interest by the defendant. Since the said amount was not paid, the suit came to be filed.
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The defendant contended that the suit be dismissed on the ground that the plaintiff has not established the liability of Rs.83,643/-. Certain other facts are also pleaded by the defendant in their written statement.
After framing issues evidence was let in by both the parties. The trial Court based on the available material on record has held that liability of the defendant for a sum of Rs.83,643/- with interest thereon is not established.
5. Sri S. Krishnaswamy, learned Counsel appearing on behalf of the appellant taking us through the material on record as well as the applications filed under Order 41 Rule 27 argues that the defendants/respondents herein though were having accounts pertaining to Bharath Conductors, Prakash Conductors and Tumkur Conductors did not produce the same before the Court; the defendants have suppressed the material which was 7 available with them and therefore adverse inference needs to be drawn against the defendants. He draws the attention of the Court to the cross examination of DW 1 (Director of 1st defendant company) in support of the said contention. He further submits that the account books/ledgers maintained by the appellant relating to Bharath Conductors, Prakash Conductors and Tumkur Conductors could not be produced before the Court below because the officers who handle the accounts of Bharath Conductors, Prakash Conductors and Tumkur Conductors were not in service on the date when PW 1 was examined. The Officers subsequently posted were not in a position to locate the ledgers pertaining to the aforementioned organizations who were not in position to place appropriate records before the trial Court prior to passing of the decree and hence it has resulted in miscarriage of justice. Learned Counsel appearing on behalf of the appellant also takes us through the original ledgers maintained by the appellant.
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6. Be that as it may, having regard to the totality of the facts and circumstances and as we are of the clear opinion that the appellant being a Central Govt. undertaking could not produce appropriate ledgers before the trial Court notwithstanding of exercising due diligence, we propose to accept the prayer of the appellant/plaintiff for leading additional evidence. The plaintiff being a Central Govt. undertaking, officers will be on transfer to various places in India. In this view of the matter, lapse must have been occurred on the part of the plaintiff in nonproduction of ledgers despite due diligence. According to the plaintiff, if the applications are allowed and the ledgers are allowed to be produced as additional evidence, then the balance will tilt in their favour.
7. Having regard to the material on record, we are of the considered opinion that interest of justice would be met, if the applications filed by the appellant are allowed. 9 Since the applications are allowed, we remit the matter to the trial Court. Accordingly the following order is made:
The judgment and decree of the trial Court in O.S. No.4412/2001 stands set aside. IA Nos. I and II of 2012 for production of ledgers and for leading additional evidence before this Court are allowed. The matter is remitted to the trial Court for fresh disposal in accordance with law. O.S. No.4412/2001 is restored to the file of the court below. Parties are at liberty to lead additional evidence. Since the matter is old we direct the trial Court to decide the suit in accordance with law after giving opportunity to both the parties to lead further evidence as early as possible but not later than the outer limit of six months from the date of receipt of this order.
The appellant shall pay cost of Rs.10,000/- before the trial Court within four weeks from the appearance. Out of the cost so paid, the amount of Rs.8,000/- shall be disbursed in favour of the defendants/respondents herein. 10 Remaining amount shall be vest with the State. It is made clear that the appellant is not entitled for interest and service charges from December 2006 till the end of August, 2013 (the period taken for deciding the appeal). The appellant shall appear before the trial Court on 7th October, 2013 at 11.00 a.m. Office is directed to send back the records of the trial Court forthwith. It is open for the respondent to appear before the trial Court on 07.10.2013 voluntarily. If they do not appear before the trial Court, notice shall be served on the respondents as per law.
SD/-
JUDGE SD/-
JUDGE Vb/bs*