Bangalore District Court
Sri.Parasamal Jain vs The General Manager (Admn) on 17 February, 2016
IN THE COURT OF THE XXX ADDL.CITY CIVIL
JUDGE, BANGALORE CITY
DATED THIS THE 17TH DAY OF FEBRUARY 2016
-: PRESENT: -
SRI.M.G.KUDAVAKKALIGER, B,Com., LL.M.,
XXX Addl.City Civil Judge,
Bangalore.
O.S.NO.4164/2013
PLAINTIFF/S. Sri.Parasamal Jain,
S/o Shankarlal,The Proprietor,
M/s.Desh Vijay Sarees & Dress
material shop, 1st Floor,
Siddalingappa market,
A.M.Lane, Chickpet Cross,
Bengaluru-560 053.
(By Pleader Sri.Vittal Shetty.P.,
Adv.)
/VS/
DEFENDANT/S. 1. The General Manager (ADMN),
Kerala Roadways Pvt.Ltd.,
Corporate Office, No.17/66, 1st
Floor, KRS Towers, Indira Gandhi
Road, Calicut-673001.
2.The Branch Manager,
Kerala Roadways Pvt.Ltd.,
No.11/165, NH Road, Kottiyam,
Kollam District-691571.
2 O.S.No4164/2013.
3.The Branch Manager,
Kerala Roadways Pvt.Ltd.,
P.B.No.6748, No.23, 4th Cross, Near
J.C.Road Corporation Bank,
Kalasipalyam New Extention,
Bengaluru-560 002.
4.The Proprietor-City Palace,
Textiles & Readymade Center,
P.P.No/V-580/581,
Vavaramambalam, Vavaramambalam
Junction, Pothencode-695584,
Kerala State.
(By Pleader Sri.R.R.K., Adv.for D1
to 3, D4 Exparte)
DATE OF INSTITUTION 12-06-2013
NATURE OF THE SUIT (Suit on Suit for money
Pronote, Suit for declaration and recovery
Possession, Suit for injunction, etc.)
DATE OF THE COMMENCEMENT 07-02-2015
OF RECORDING OF THE EVIDENCE
DATE ON WHICH THE JUDGEMENT 17-02-2016
WAS PRONOUNCED
TOTAL DURATION : YEAR/S MONTH/S DAY/S
2 8 5
(M.G.KUDAVAKKALIGER),
XXX ADDL.CITY CIVIL JUDGE,
BENGALURU.
3 O.S.No4164/2013.
JUDGEMENT
1. The plaintiff has filed this suit against the defendants for recovery of Rs.1,87,345/- with interest at the rate of 24% p.a. with costs.
2. The following are the brief facts leading to the case of the plaintiff:
That the plaintiff is dealing in sarees and dress material business since several years under the name and style M/s.Desh Vijay Sarees and dress materials. During the normal course of business, plaintiff availing the services of defendants 1 to 3 to send the materials to its customers at various destinations. The defendants 1 to 3 being the transport operators collects the goods from the plaintiff and according to the dispatch advice and delivers the goods to the destinations of the plaintiff's customers at various destinations. The defendant No.4 had placed the purchase orders to the plaintiff to supply the sarees 4 O.S.No4164/2013.
materials at Kottiyam, Kerala State. To deliver the goods at Kottiyam, plaintiff availed the services of the defendants 1 to 3 and booked the goods through defendants 1 to 3 to the defendant no.4 under Lorry receipt Nos.85236752 & 85236752 dtd.16-8-2-2011, No.85236976 to 85236979 dtd.18-8-2011 totally Rs.1,88,848/- subject to realization of the bills amount to the Union Bank of India, Kottiyam, Kerala. It is the normal procedure that while sending the goods through defendants 1 to 3, the Union Bank of India, Pothencode District, Trivandrum will collect the bill amount from the defendant No.4 and on realization of the bills amount, the consignment would be delivered by the defendant No.2 to defendant No.4 at Kottiyam. The defendant No.2 is bound to collect the original Lorry receipts from the defendant No.4 while delivering the goods to the defendant No.4 who having cleared the bill amount to Union Bank of India. In the absence of such clearance bill from defendant No.4, the defendant No.2 5 O.S.No4164/2013.
shall deliver the goods to the defendant No.4. The defendant No.4 desperately failed to clear the bank documents by remitting the bills amount to Union Bank of India, Kottiyam and therefore, plaintiff received the documents from the said bank. The defendants 1 to 3 have no authority to deliver the goods to defendant No.4 without proper documents from the Union Bank of India having received the bills amount and are bound to return the goods to the plaintiff. Plaintiff further contended that on 14-4-2012, plaintiff was forced to submit the lorry receipt to the defendant No.3 with instructions to rebook the items sent through the defendants 1 to 3 to the defendant No.4. The defendants 1 to 3 have received the lorry receipt way bill for rebooking and acknowledged the same on 21-4- 2012. On receipt of the waybill, the defendant No.3 had intimated to the defendant No.2 to rebook the lorry way bills to the plaintiff on 25-4-2012 and the 6 O.S.No4164/2013.
same has been advised to rebook vide Ref.No.RB/D/035/2012, RB/D/036/2012, RB/D/037/ 2012, RB/D/038/2012, RB/D/039/2012and RB/D/040 /2012 dtd.25-4-2012. But, defendants 1 to 3 deliberately failed to deliver the rebooked materials to the plaintiff till today. No communication has been received from defendants 1 to 3 regarding the consignment from Kottiyam to Bengaluru. After collecting the way bills, the defendants 1 to 3 have failed to discharge their duties. In the meanwhile, defendant No.4 has made the total payment of Rs.55,322/- out of the entire bills amount of Rs.1,90,759/- which includes Rs.1911/- towards V.P.Post charges and keeping a sum of Rs.1,23,907/- as balance and the same is due till date. Plaintiff suspects that defendants 1 to 3 are in collusion and hand in glow with defendant No.4 have misappropriated the consignment sent by plaintiff to the extent of Rs.1,23,907/-. Plaintiff has made request and reminders to the 7 O.S.No4164/2013.
defendant No.1 to 3 regarding the rebooking of the consignment from Kottiyam Branch to Bengaluru. But all such efforts went in vain and ultimately, plaintiff was forced to cause legal notice dtd.22-6-2012 calling upon the defendant No.1 either deliver the rebooked consignment or to pay the amount covered under the consignment, the defendant No.1 has failed to comply the demands and totally ignored the same. Therefore, on 26-12-2012, plaintiff once again issued legal notice to the defendant No.1 to 4 calling upon the defendants to pay a sum of Rs.1,23,907/- together with interest at 24% p.a. from the date of bill till realization. The said notices were served on the defendants on 26-12-2012. Inspite of it, the defendants have failed to settle the outstanding amount. The transaction is a commercial transaction, defendants are liable to pay interest at the rate of 24% p.a. Now, the defendants are due principal amount of Rs.1,21,996/-, interest from 21-4- 8 O.S.No4164/2013.
2011 to up to date at 24% p.a. of Rs.63,438/- and VPP Charges of Rs.1,911, totally Rs.1,87,345/-.
3. After registration of the suit, suit summons were issued to the defendants. Defendants No. 1 to 3 have put appearance through their advocate. Inspite of service of summons by RPAD, Defendant No.4 has not appeared before the Court and placed exparte. Defendant No.3 has filed its written statement denying the averments made by the plaintiff as false, frivolous and vexatious and contended that it is not within the knowledge of this defendant that plaintiff is the proprietor of M/s.Desh Vijay sarees and Dress material shop and is dealing in sarees and dress material business since several years. The defendants further denied that defendants 1 to 3 collect the goods from the plaintiff and according to the dispatch advice, delivers the goods to the destination of the plaintiff's customers. Defendants 1 to 3 never collect any items 9 O.S.No4164/2013.
or goods from any one more so the plaintiff herein. If the goods are brought to the defendants 1 to 3, the goods would be transported as required by the customers of the defendants 1 to 3. The purchase orders placed by defendant No.4 to the plaintiff for supply of sarees material at Kottiyam, Kerala State is not within the knowledge of this defendant. Defendant has denied that the goods ordered by defendant No.4 were booked for transportation through the defendants 1 to 3 is denied as false. The consignments were entrusted to this defendant by the customers and the goods are booked on "said to contain" basis. The goods are always packed in the premises of the customers and the materials will be entrusted in a packed and sealed condition. The further averments that plaintiff booked the said goods under the lorry way bills was subject to realization of the bills amount to the Union Bank of India, Kottyam, Kerala is denied as false. There is no special instruction to these 10 O.S.No4164/2013.
defendants under the lorry way bills. The payment from the 4th defendant was to be made to the plaintiff under the invoices within 30 days and therefore, the averments of the plaintiff that it was subject to realization of the bill amount to Union Bank of India, etc. is denied as false. The further averments that it is the normal procedure that while sending the goods through the defendants 1 to 3, the Union Bank of India, Pothencode District, Trivandrum will collect the bill amount from defendant No.4 and on realization of the bill amount, the consignment would be delivered by defendant No.2 to the defendant No.4 at Kottiyam and defendant No.2 while delivering the goods is bound to collect the original lorry receipt from defendant No.4 etc. are all denied as false. The further averments that in the absence of clearance of the bill by the defendant No.4 and the defendant No.2 shall to deliver the goods to the defendant No.4, etc. are all denied as false. There is no normal procedure as alleged in the 11 O.S.No4164/2013.
plaint and there is no special instruction to these defendants by the plaintiff and calls for the plaintiff to strict proof of the same. The averments made at para-4 in the plaint are all denied as false. The plaintiff had sought for rebooking is not wholly admitted and contended that the plaintiff cannot claim as a matter of right to rebook the consignment without payment of fright charges and demurrages. The further averments that defendants 1 to 3 have deliberately failed to deliver the rebooked materials to the plaintiff and failed to discharge their duties are denied as false. It is not within the knowledge of this defendant that defendant No.4 has made total payment of Rs.55,322/- out of entire bill amount of Rs.1,90,759/- which includes Rs.1,911/- towards V.P.post charges and the balance amount is Rs.1,23,907/-. The value of the goods is always said to contain basis. If the defendant No.4 has made any payment towards the said consignment, then the plaintiff shall recover the 12 O.S.No4164/2013.
amount only from defendant No.4 and not from defendants 1 to 3. The V.P.P.Charges are subject matter of postal transaction and the same does not come under Carriers Act. This defendant has denied the averments made in the plaint that Rs.1,23,907/- is still due from these defendants. This defendant has denied the allegations that defendants 1 to 3 have colluding with defendant No.4 and misappropriated the consignment to the extent of Rs.1,23,907/-. Defendant has denied that plaintiff had issued a notice on 22-6- 2012 and no such notice has been issued by the plaintiff with regards to the subject transactions. The notice issued by the plaintiff dtd.26-12-2012 is not a notice incompliance of Sec.10 of the Carriers Act. The plaintiff has failed to serve the notice on these defendants under Sec.10 of Carriers Act within 6 months from the date of alleged knowledge or even from the date of rebooking. The defendants denied that they are liable to pay interest at the rate of 24% 13 O.S.No4164/2013.
p.a. and there is no contract between plaintiff and defendants for payment of interest at the rate of 24% p.a. and the claimed rate of interest is exorbitant, illegal, unlawful and also against the provisions of Interest Act. These defendants are not due or liable to the plaintiff more so the sum of Rs.1,87,345/- as claimed in plaint. The plaintiff has created, concocted invoices and is claming the alleged value of non-existent goods with ulterior motives. The suit is also hit for want of notice under Sec.10 of the Carriers Act. Hence, it is requested to dismiss the suit with costs.
4. On the basis of the rival contentions taken up by respective parties in the above pleadings, the following issues have been framed by my Learned Predecessor in office for disposal of the case:
1. Whether plaintiff proves that it had booked the goods through defendant No.1 to defendant No.4 worth of Rs.1,88,848/- as per the purchase orders dated:10/08/2011?
2. Whether it further proves that the 14 O.S.No4164/2013.
defendant No.4 as paid Rs.55,322/- out of bill amount of Rs.1,90,759/- and that defendants misappropriated the consignment of Rs.1,23,907?
3. Whether it further proves that failed to pay the said amount inspite of request demands and issuance of legal notice on 22/06/2012, 22/12/2012?
4. Whether it further proves that it is entitled for the claim amount of Rs.1,87,345/- with interest of 24 % per annum from the date of suit till the realization?
5. What order or decree?
5. In order to substantiate the case made out by the plaintiff, the General Power of Attorney Holder of the plaintiff has entered into witness box and has filed his affidavit evidence under Order 18 Rule 4 of C.P.C. as per P.W.1 and got marked as many as 41 documents as per Ex.P.1 to P.41. In order to rebut the case of the plaintiff P.W.1 has been cross-examined by the counsel for the defendant. In spite of sufficient opportunity given to the defendants, defendants have not stepped into witness box 15 O.S.No4164/2013.
to substantiate their case, hence, defendants evidence taken as nil and closed its side. Case posted for arguments.
6. I have heard the arguments on both side and perused the materials placed on record.
7. On the basis of the evidence both oral and documentary and other materials., I record my findings to the above issues as follows:
Issue No.1: In the affirmative. Issue No.2: In the affirmative. Issue No.3: In the affirmative. Issue No.4: Partly in the affirmative. Issue No.5: As per the final order for the following:
REASONS
8. ISSUE NOS.1 TO 3: As Issue Nos.1 to 3 are interlinked, discussion on one issue has its direct bearing on the discussion on another issue. In view to avoid repetition of discussion and facts of evidence, I am going to consider all these issues jointly.
16 O.S.No4164/2013.
9. The brief facts of the plaintiffs' case are that plaintiff is the proprietor of M/s.Desh Vijay Sarees and Dress material Shop, dealing in sarees and dress material business since several years. Defendant No.4 is the purchaser of the dress materials from the plaintiff for the period from 16-8-2011 to 18-8-2011. Defendants 1 to 3 are the transporter operators from Bengaluru to Kottiyam, Kerala. During normal course of business, the plaintiff availing the service of defendants 1 to 3 to send the materials to its customers at various destinations. Defendant no.4 has placed purchase orders to the plaintiff to supply the sarees materials. The plaintiff availed the service of defendants 1 to 3 to supply the goods to defendant No.4 Kottiyam, Kerala as per the lorry waybills against the invoices mentioned in the plaint para No.3 worth Rs.1,88,848/-. The defendants 1 to 3 have to deliver the goods to defendant No.4 subject to realization of the bill amount to the Union Bank of India, Kottiyam, Kerala.
17 O.S.No4164/2013.
In the normal procedure, while sending the goods through defendants 1 to 3, the Union Bank of India, Pothencode District, Trivendrum will collect the bill amount from the defendant No.4 and on realization of the bill amount, the consignment would be delivered by the defendant no.2 to defendant No.4 at Kottiyam. The defendant No.2 is bound to collect the original lorry receipt from defendant No.4 while delivering the goods to defendant No.4, who having cleared off the bill amount to the Union Bank of Inda. In the absence of clearance of bill from defendant No.4, the defendant No.2 shall not deliver the goods to defendant No.4. The plaintiff h as furnished the purchase order dtd.10-8-2011 and office copies of the tax invoices dtd.15-8-2011 before this Court for having supplied the materials to the defendants. But, defendant No.4 failed to clear the bank documents by remitting the bill amount to the Union Bank of India, Kottiyam and plaintiff received the documents from the said bank. Defendants 1 to 3 have delivered the goods to defendant No.4, though defendants 18 O.S.No4164/2013.
1 to 3 have no authority to deliver the goods to defendant No.4 without proper documentation from Union Bank of India having received the bill amount. In such circumstances, the transport operators defendants 1 to 3 bound to return the goods to the plaintiff. The plaintiff submits that on 14-4-2012, the plaintiff was forced to submit the lorry receipts to defendant No.3 with instructions to rebook the items sent through defendants 1 to 3 to defendant No.4. Defendants 1 to 3 have received the lorry receipts way bill for rebooking and acknowledged the same on 21-4-2012. On receipt to the waybill the defendant No.3 has intimated to the defendant No.2 to rebook the aforesaid lorry waybills to the plaintiff on 25- 4-2012 and same has been rebooked as per the reference numbers mentions in plaint para-5. But, defendants 1 to 3 have deliberately failed to deliver the rebooked materials to the plaintiff till date. No communication has been received from defendants 1 to 3 regarding the consignment from Kottiyam to Bengaluru. After collecting 19 O.S.No4164/2013.
the waybills defendants 1 to 3 have failed to discharge their duties. In the meanwhile, defendant No.4 has made total payment of Rs.55,322/- out of the entire bill amount of Rs.1,90,759/- (which includes Rs.1,911/- towards V.P.Post charges), still Rs.1,23,907/- is due from the defendants. In the instant case, defendants 1 to 3 are in collusion and hand in glove with defendant No.4, they have misappropriated the consignment sent by the plaintiff to the extent of Rs.1,23,907/-. Thereafter, plaintiff has made several requests to the defendants 1 to 3 and 4, but defendants 1 to 3 have not returned the rebooked consignment from Kottiyam to Bengaluru or defendant No.4 has not paid the balance amount. Hence, plaintiff has issued legal notice to the defendants on 22-6-2012. In spite of service of legal notice, defendant No.1 has failed to comply the reasonable demand made by the plaintiff and ignored the same. Thereafter, the plaintiff has issued another legal notice dtd.26-12-2012 to defendants 1 to 4 calling upon to pay a sum of Rs.1,23,907/- together with 20 O.S.No4164/2013.
interest at the rate of 24% p.a. Hence, plaintiff has filed this suit for recovery of Rs.1,87,345/- with future interest. Pursuant to the suit summons defendants 1 to 3 appeared through their counsel and defendant No.4 placed exparte. The defendant no.3 has filed written statement denying the all the averments made in the plaint. The defendant has taken defence of total denial and contended that there was no rebooking of the consignment from Kottiyam to Bengaluru and defendant has contended that the notice issued by the plaintiff dtd.26-12-2012 is not a notice in compliance of the Sec.10 of the Carriers' Act and plaintiff has failed to serve the notice on the defendants under Sec.10 of the Carriers' Act within 6 months and prays to dismiss the suit.
10. In order to substantiate the case made out by the plaintiff, the general power of attorney holder of the plaintiff has entered into the witness box and deposed on par with the plaint averments. P.W.1 has deposed that 21 O.S.No4164/2013.
during the normal course of business, the plaintiff was availing the services of defendants 1 to 3 to send the materials to its customers at various destinations. The defendants 1 to 3 being transport operators collects the goods from the plaintiff and according to the dispatch advice delivers the goods to the destinations of the customers of the plaintiff at various destinations. In the instant case, defendant no.4 being the customer of the plaintiff had placed the purchase order to the plaintiff to supply the materials to Kottiyam, Kerala State. To deliver the goods to the defendant no.4 City Palace, at Kottiyam, plaintiff availed the services of defendants 1 to 3. Accordingly, the plaintiff booked the goods through defendants 1 to 3 to deliver the consignment to defendant No.4 as per the lorry waybills mentioned in the plaint para- 3 worth Rs.1,88,848/- subject to realization of the bills amount to the Union Bank of Kottiyam, Kerala. It is the normal procedure that when sending the goods through defendant No.1 to 3, the Union bank of India, Pothencode 22 O.S.No4164/2013.
Distict, Trivendrum will collect the bill amount from defendant No.4. On realization of the bill amount, the consignment would be delivered by defendant No.2 to defendant No.4 at Kottiyam. At the time of delivering the consignment, defendant No.2 is bound to collect the original lorry receipt from defendant No.4 having cleared the bill amount to Union Bank of India. In the absence of such clearance of the bill from defendant No.4, the defendant No.2 shall not deliver the goods to defendant No.4. In order to substantiate the case of the plaintiff with regard to the sending of the consignment to defendant No.4 through defendant No.2, P.W.1 has got marked order form placed by the defendant No.4 as per Ex.P.1. Thereafter, the plaintiff firm has supplied the dress materials to the defendant No.4 vide Invoice No.198, 199,200,201, 202, 203 as per Ex.P.2 to 7 respectively on 15-8-2011, totally worth Rs.1,88,848/-. But, defendant No.4 desperately failed to clear the bank documents by remitting the bill amount to the Union Bank 23 O.S.No4164/2013.
of India, Kottiyam. Therefore, plaintiff received the documents from the said bank, but defendants 1 to 3 having no authority to deliver the goods to defendant No.4 without proper documents from the Union Bank of India having received the bill amount. In such circumstances, defendants 1 to 3 are bound to return the goods to the plaintiff. The defendants 1 to 3 have not redelivered the goods to the plaintiff. But, on 14-4-2012, the plaintiff was forced to submit the lorry receipts to defendant No.3 with instructions to rebook the items send to defendants 1 to 3. Defendants 1 to 3 have received the lorry receipts, waybill for rebooking and acknowledged the same on 21-4-2012. On receipt of the way bill, defendant No.3 had intimated to defendant No.2 to rebook the aforesaid lorry waybills to the plaintiff on 25-4-2012. Defendant No.1 has rebooked the consignment on 25-4-2012 and issued rebooking advice as per Ex.P.14 to 19 as per RD/035/2012, RD/036/2012, RD/037/2012, RD/038/2012, RD/039/2012 & RD/040/2012. The defendant has issued letters as per 24 O.S.No4164/2013.
Ex.P.8 to P.13 expressing his inability to take the consignment, but though goods have been rebooked, but they have not been returned to the plaintiff. The Manager, Union Bank of India, Pothencode, Trivendrum has also issued letter to the plaintiff as per Ex.P.25 with regard to the dishonouring of the bill by defendant No.4. The plaintiff firm has sent account extract to the defendant no.4 which has been marked as per Ex.P.26 & 27. Meanwhile, the defendant No.4 has paid the money of Rs.24,000/- on 18-8-2011 through Union Bank of India Cheque No.004183 and Rs.26,322/- on 14-12-2011 vide cheque No.004587 and cash remittance of Rs.5,000/- on 3-3-2012. Defendant No.4 has issued 6 cheques against all the six invoices which have been dishonoured, have been marked as per Ex.P.36 to 41, which discloses that defendant No.4 has received the goods under above said consignment and made part payment as stated above and issued 6 cheques to the plaintiff firm to discharge of unpaid balance under consignment and those cheques have 25 O.S.No4164/2013.
been dishonoured. Even then, defendant No.1 firm has rebooked the consignment from Kottiyam to Bengaluru as per Ex.P.14 to 19 vide GC Note No.85236976 to 85236979 dtd.18-8-2011 and 85236752 and 85236753 dtd.16-8- 2011. But, defendants 1 to 3 being the transporter have not at all redelivered the goods under consignment to the plaintiff. This behaviour of defendants 1 to 3 discloses that defendants 1 to 3 are colluding with defendant No.4 and defendants 1 to 3 have delivered the goods to defendant No.4 without following the terms and conditions of the consignment. Defendants 1 to 3 are the custodian of the goods under the consignment only after depositing the consignment amount by the defendant No.4 in the Union Bank of India and after getting original waybills and other relevant documents. The defendants 1 to 3 have delivered the goods to the defendant No.4 without clearing the Bills. Hence, defendant No.1 to 3 have colluded with defendant No.4 each other and they are hand in glow with defendant No.4 and they have misrepresented the consignment sent 26 O.S.No4164/2013.
by the plaintiff, still there is outstanding balance to the extent of Rs.1,23,907/-. The plaintiff has made all efforts, but such efforts went in vain and ultimately the plaintiff has issued legal notice to the defendant either to deliver the rebooked consignment or to pay the balance amount of the consignment. But, in the instant case defendant No.4 remained exparte, not filed any written statement and not cross-examined P.W.1 and not entered into witness box to substantiate their case. Though defendants 1 to 3 have appeared before their counsel, defendant No.3 has filed its written statement. The counsel for the defendant has cross-examined P.W.1, but not entered into witness box to substantiate their case. Hence, the evidence of the P.W.1 remained unchallenged. Then there is no hurdle to believe the evidence of P.W.1. Hence, I accept the same.
11. In the instant case, the contesting defendant No.4 has not rebutted the claim of the plaintiff and defendant nos.1 to 27 O.S.No4164/2013.
3 have not entered into witness box in support of their case. Hence, the claim of the plaintiff remained unshattered, perhaps the defendants 1 to 3 and defendant No.4 might have conceded the case made out by the plaintiff. Hence, as per the provisions of Sec.114 of the Indian Evidence Act, an adverse inference can be drawn against the defendants 1 to 3 and defendant No.4 as defendant No.4 purposely not cross-examined P.W.1 and defendant Nos.1 to 4 have not stepped into the witness box. Defendants not entered into the witness box to give their evidence to protest the claim of the plaintiff, hence, adverse inference can be drawn against the defendants 1 to 4. Accordingly, adverse inference has been drawn against the defendants No.1 to 4. The principles evolved by their Lordships of the Hon'ble Supreme Court in the case of Vidyadhara Vs.Mankik Rao and others1, is squarely applicable to the present facts and circumstances of the case, which runs as under:
1 AIR 1999 SUPREME COURT 1441 28 O.S.No4164/2013.
(A) Evidence Act (1 of 1872, S.114 -Adverse inference - Party to suit - not entering the witness box- Give rise to inference adverse against him.
Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. .......... But, this plea was not supported by first defendant as he did not enter into the witness box. He did not state the facts pleaded in the written statement on oath in the trial Court and avoided the witness box so that he may not be cross-examined. This, by itself is enough to reject the claim that the transaction of sale between second defendant and the plaintiff was a bogus transaction.
12. In view of the principles evolved by their Lordship of the Hon'ble Supreme Court in the top noted case, adverse inference has been drawn against defendant No.1 to 4. Hence, this Court is of the opinion that plaintiff has issued totally 6 consignment under tax invoice numbers bearing 198 to 203 on 15-8-2011 vide lorry receipt Nos.85236752 and 53 and 85236976 to 25836978 worth Rs.1,80,848/-, but defendants 1 to 3 have delivered the goods to the defendant No.4 29 O.S.No4164/2013.
without complying the terms and conditions of the consignment i.e. defendant No.4 has taken delivery of the goods without hounouring the bills by depositing consignment amount into the Union Bank of India and without original lorry receipts and the original documents of the consignment have been returned by the Union Bank of India, Kottiyam to the plaintiff. Meanwhile defendant No.4 has totally paid money worth Rs.55,322/- to the plaintiff. Still there is a balance of Rs.1,23,907/-. Hence, I answer issue No.1 to 3 in the affirmative.
13. Defendant No.3 has taken contention that as per Sec.10 of the Carriers Act, 1865, no suit shall be instituted against the common carrier for loss or injury to the goods entrusted to him for carriage unless notice in writing was given within 6 months of the time when loss or injury first came to the knowledge of the plaintiff. But, as on the date of the incident, the 30 O.S.No4164/2013.
Carriage Act, 1865 was repealed and new Act the Carriage by Road Act, 2007 was introduced. Under the new enactment no such period of limitation for giving notice was described. However, the plaintiff has issued legal notice to the defendant after giving sufficient time to the defendants 1 to 3 to redeliver the rebooked goods under consignment and defendant No.2 to repay the balance amount of Rs.1,23,907/- but, the defendants have not responded, the efforts made by the plaintiff went in vain. The plaintiff has issued legal notice dtd.21-4-2012 calling upon the defendants 1 to 4 to reimburse the value of the lost consignment. Therefore, the defence taken up by the defendants 1 to 3 is not sustainable. Hence, it is of no use to the defendant in absolving its liability to pay the balance amount of consignment. Hence, this Court is of the opinion that plaintiff has successfully proved its case.
31 O.S.No4164/2013.
14. ISSUE NO.4: In the instant case, the transactions between the plaintiff firm and the defendants 1 to 4 are purely commercial transaction. As per the terms and conditions of the invoices a credit facility will be up to 30 days from the date of invoice. If the purchaser failed to pay the value of the goods supplied beyond 30 days, the purchaser will have to pay the interest at the rte of 24% p.a. from the date of invoice. Hence, plaintiff is justified in claiming 24% p.a. interest on the outstanding dues. Hence, the Court is of the opinion that plaintiff firm is entitled for the recovery of balance amount of Rs.1,87,345/-.
15. In the instant case, the plaintiff has claimed 24% p.a. future interest from the date of suit till realization. But, it appears to be higher side. Under the Interest Act, the party is entitled for interest at the 'current rate of interest' which expression is defined in Clause(b) of Sec.2 of the Interest Act, as meaning, the 32 O.S.No4164/2013.
highest of the maximum rates at which interest may be paid on different classes of deposits by different classes of schedule banks in accordance with the direction given or issued to the banking companies generally by the Reserve Bank of India under the Banking Regulation Act, 1949. Therefore, plaintiff is entitled to interest at the rate of 12% p.a. on the principal amount of Rs.1,21,996/- from the date of suit till realization of the entire amount. Hence, I answer issue No.4 partly in the affirmative.
16. ISSUE NO.5: In view of the discussions and reasons stated above and my answers to the above issues, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby decreed with costs.
Plaintiff is entitled to recover Rs.1,87,345/- (Rupees One Lakh Eighty 33 O.S.No4164/2013.
Seven Thousand Three Hundred and Forty Five only) with future interest at the rate of 12% p.a. on the principal amount of Rs.1,21,996/- from the date of suit till realization.
The defendants 1 to 3 and defendant No.4 are jointly and severally liable to pay the decreetal amount within two months from the date of this judgment & decree.
Draw decree accordingly.
(Dictated to the Judgment Writer on computer, transcribed thereof, corrected, signed and then pronounced by me in the open Court on this THE 17TH DAY OF FEBRUARY 2016).
(M.G.KUDAVAKKALIGER), XXX ADDL.CITY CIVIL JUDGE, BENGALURU.
34 O.S.No4164/2013.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF/S:
P.W. 1 Deepak Kumar.
WITNESSES EXAMINED FOR THE DEFENDANTS/S:
NIL.
DOCUMENTS MARKED FOR THE PLAINTIFF/S:
Ex.P.1 Purchase orders. Ex.P.2 to 7 Invoices. Ex.P.8 to 13 Confirmation letters. Ex.P.14 to 19 Rebooking Advices. Ex.P.20 Legal notice. Ex.P.21 to 24 Acknowledgements. Ex.P.25 Disnonour bill. Ex.P.26 & 27 Ledger extract. Ex.P.28 GPA. Ex.P.29 Copy of letter dtd.14-4-2002 Ex.P.30 Copy of legal notice Ex.P.31 & 32 Postal receipts. Ex.P.33 to 35 Acknowledgements. Ex.P.36 to 41 Six Cheques issued by defendant No.4.
DOCUMENTS MARKED FOR THE DEFENDANTS/S:
NIL.
(M.G.KUDAVAKKALIGER), XXX ADDL.CITY CIVIL JUDGE, BENGALURU.