Bangalore District Court
M/S Siddharth Polymers Pvt. Ltd vs M/S Caps And Cans on 28 June, 2019
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT: SRI. KASANAPPA NAIK. M.A., LL.M.
XLI Addl. City Civil Judge
Dated this the 28th day of June 2019
O.S.No.6638/2014
PLAINTIFF : M/s Siddharth Polymers Pvt. Ltd.
(A Company incorporated and registered
under the Companies Act, 1956),
Having its Office at No.1, 1/2,
1 Floor, I Cross, H.Siddaiah Road
Wilson Garden,
Bangalore-560 027.
And plant at:
Plot No.265A, Bommasandra Industrial
Estate, Hosur Road,
Bangalore-560 099
Represented by its Manager - Accounts
and duly authorised official
Mr.Shashikumar Menon
Aged about 41 years
(By Sri.G.B.H., Advocate)
V/s.
DEFENDANTS : 1. M/s Caps and Cans
(A Partnership Firm)
No.2, 600/676,
Nanjundaiah Industrial Estate
Opp. IIM, Bilekahalli
Bannerghatta Road
2 OS No.6638/2014
Bangalore-560 076
Represented by its Managing Partner
Mr.R.Ravishankar
and also represented by its Partners:
a) Mr.Sridhar
b) Mr.Ramprasad
c) Mr.S.N.Anand Rao
2. R.Ravishankar
Major S/o S.Raju
Managing Partner of
M/s Caps and Cans
No.2, 600/676,
Nanjundaiah Industrial Estate
Opp: IIM, Bilekahalli
Bannerghatta Road
Bangalore-560 076
And residing at:
Mr.Ravishankar
Major S/o S.Raju
No.301-03, Adarsh Hill
Kumaraswamy Layout
Bangalore-560 078
3. Mr.Sridhar
Major S/o S.N.Ananda Rao
Partner of M/s Caps and Cans
No.2, 600/676,
Nanjundaiah Industrial Estate
Opp: IIM, Bilekahalli
Bannerghatta Road
Bangalore-560 076
And residing at:
Mr.S.A.Sridhar
3 OS No.6638/2014
S/o S.N.Ananda Rao
A-27, 31st A Cross
7th Block, Jayanagar
Bangalore.
4. Mr.Ramprasad
Major, Father name not known
to plaintiff
Partner of M/s Caps and Cans
No.2, 600/676,
Nanjundaiah Industrial Estate
Opp: IIM, Bilekahalli
Bannerghatta Road
Bangalore-560 076
5. Mr.S.A.Ananda Rao
Major, Father name not known
to plaintiff
Partner of M/s Caps and Cans
No.2, 600/676,
Nanjundaiah Industrial Estate
Opp: IIM, Bilekahalli
Bannerghatta Road
Bangalore-560 076
And residing at :
S.N.Ananda Rao
A-27, 31st A Cross
7th Block, Jayanagar
Bangalore.
(D1 to D4 By Sri.Y.K.N.S., Advocate
D5 Exparte)
Date of Institution of the Suit: 28.08.2014
4 OS No.6638/2014
Nature of the suit
(Suit on Pronote, suit for Recovery of Money
declaration & possession, suit
for injunction)
Date of commencement of 12.07.2017
recording of evidence:
Date on which the Judgment 28.06.2019
was pronounced:
Total Duration: Year/s Month/s Day/s
04 10 00
JUDGMENT
The Plaintiff has filed this suit through its authorized official Mr.Shashikumar Menon against the defendants for the relief of recovery of a sum of Rs.25,39,895/-, with current and future interest at the rate of 24% p.a. on the balance principal sum of Rs.15,90,716/- from the date of suit, till the date of realization.
2. The facts of the case are as under:
The plaintiff claimed that it is a Private Limited Company engaged in the manufacturing of precision plastics components etc. The defendant No.1 is a 5 OS No.6638/2014 partnership firm represented by its partners, defendants No.2 to 5, is carrying on business/commercial activities. It is stated that the defendants being its regular customers since the year 2009, pursuant to the purchase orders placed by the defendants with the plaintiff representing, assuring, promising and undertaking to make prompt payment of the sale value of the products, sold, supplied and delivered to the defendants as per the orders placed by the plaintiff, which are detailed in invoices attached to the plaint. It is stated that the plaintiff has maintained a running account in respect of the transactions it had with the defendants. It is stated that the plaintiff has sold products under the invoices to the defendants subject to the term that in case of delay in making payments of the sale value beyond the stipulated date, the defendants shall pay interest at 24% p.a. The defendants have accepted the delivery of the product sold by the plaintiff as per the invoices and acknowledged the same.6 OS No.6638/2014
It is stated that after the purchase of the products, the defendants paid only part of the amount in respect of the due, but failed to pay entire sale value in respect of some invoices and interest accrued thereon inspite of demand in person, over phone and in writing made by the plaintiff and thereby committed breach of promises. It is alleged that the plaintiff granted time to the defendants till 31.3.2014 to make payment of the dues and thereafter, issued notice on 10.3.2014 calling upon the defendants to pay Rs.37,74,692/-, which is consisting of principal amount of Rs.25,12,828/- and interest of Rs.12,61,864/-
as on 31.3.2014 and also demanded interest at the rate of 24% p.a., but though the legal notice was served upon the defendants, they failed to pay the same. As per the plaintiff, the defendants are liable to pay in all a sum of Rs.25,34,895/-. Thus, cause of action arose and suit is filed for the relief as mentioned above.
7 OS No.6638/2014
3. The defendants No.1 to 4 have appeared through an Advocate and defendant No.5 remained exparte inspite of service of summons. The defendants No.2 and 3 have filed their written statement, whereas the defendants No.1 and 4 have filed a memo adopting the same.
4. The defendants No.1 to 4 have denied the plaint claim and allegations. As per them, the defendant No.1(c) and defendant No.5 are not partners of 1st defendant and defendant No.5 never participated and not involved in any transaction between the plaintiff and the 1st defendant. He is neither necessary party nor proper party in the suit. As per the defendants, the suit is vexatious and not maintainable. The plaintiff received the entire amount due from the defendants in respect of the transactions between them and have filed the present suit by fabricating the documents without any basis. As per them, they have paid entire balance amount through cheque bearing No.239832 8 OS No.6638/2014 dated 12.6.2014 drawn on Axis Bank in favour of the plaintiff for Rs.13,34,000/-. The said cheque was sent by the defendants to the plaintiff along with letter and cheque has been encashed by the defendants on 14.6.2014. Since the plaintiff has filed the suit suppressing the same, the suit has to be dismissed. It is alleged that the plaintiff has not furnished entire accounts between the parties. There was no agreement to pay interest, muchless at 24% p.a. and that debit notes have been fabricated by the plaintiff.
It is stated that on receipt of the legal notice dated 10.3.2014, the partners of defendant No.1 met the plaintiff, discussed the matter and reconciled the accounts and found that a sum of Rs.13,34,000/- was due and towards the entire balance payable by the defendants on the account of the defendant No.1 to the plaintiff. After arriving at said figure, the defendants have sent the said cheque for said amount on 12.6.2014 towards full and final settlement of the claim and even the cheque has been 9 OS No.6638/2014 encashed and therefore, there is nothing due on the part of the defendants. However, the defendants have admitted that the defendant No.1 used to purchase raw materials from M/s Samyuktha Polymers represented by T.B.Joshi and supplied raw materials to the plaintiff and plaintiff used to make the furnished products and plaintiff used to do job work and used to collect labour charges. The said T.B.Joshi has filed suit in O.S.945/2015 against these defendants regarding the same, which is pending. As per the defendants, the plaintiff encashed the cheque dated 14.6.2014 without any objection. Thus, as per them, they have fully paid the amount due and plaintiff has filed the suit suppressing the real facts. The suit barred by limitation, as invoices furnished are dated from 20.11.2009. The suit claim based on invoices, which are more than 3 years as on the date of the suit are barred by limitation. Thus, these among other grounds prayed to dismiss the suit with costs.
10 OS No.6638/2014
5. On the basis of the above pleadings, the following issues have been framed by my learned predecessor in office:-
1) Whether the plaintiff proves that the defendants are due of Rs.25,39,895/-
including legal notice charges of Rs.5,000/- as on 28.08.2014 towards the sale and supply of products?
2) Whether the plaintiff further proves that as per the contractual terms the defendants are liable to pay interest at the rate of 24% p.a. from the respective date of sale and supply of products till realization?
3) Whether the suit is bad for non-joinder of necessary parties?
4) Whether the defendant No.2 and 3 prove that after the receipt of legal notice dated 10.03.2014 the partners of the defendant No.1 met the plaintiff and discussed the matter and parties reconciled the accounts and found that a sum of Rs.13,34,000/- was due towards the entire balance payable by the defendants on account of the defendant No.1 to the plaintiff and after arriving at the said figure the defendants have sent a cheque bearing No.239832 for Rs.13,34,000/-
dated 12.06.2014 drawn on Axis Bank in full settlement of the claim and the said 11 OS No.6638/2014 cheque was received by the plaintiff and encashed by the plaintiff on 14.06.2014 without any objection?
5) Whether the suit is barred by limitation?
6) Whether the plaintiff is entitle for the reliefs sought for?
7) What order or decree?
6. In support of its case, the plaintiff examined its Manager - Accounts Mr.Shashikumar Menon as PW1 and produced documents as per Ex.P.1 to P.128 in evidence. On the other hand, the defendants have examined defendant No.2 as DW1 and produced Ex.D.1 and D.2 in evidence.
7. I have heard the learned counsel for the parties and perused the materials on record.
8. My findings to the above issues are as under: 12 OS No.6638/2014
Issue No.1, 2, 5 : In the negative
&6
Issue No.3 : Does to arise for
consideration
Issue No.4 : In the affirmative
Issue No.7 : As per the final order,
for the following
REASONS
9. ISSUE No.1 TO 6:- Since these issues are
interconnected with each other hence they are taken together for common discussion in order to avoid repetition of facts and evidence.
10. The learned counsel for the plaintiff contended that the plaintiff has produced oral and documentary evidence to prove its suit claim. It is argued that the defendants have not denied purchase of goods from the plaintiff and on the other hand, they have admitted the purchase. Such being the case and there being no clear 13 OS No.6638/2014 and cogent evidence on behalf of the defendants, the suit has to be decreed. It is argued that though the plaintiff received part payment from the defendants and same is pleaded in the plaint and the plaintiff have not suppressed anything. Thus, prayed to decree the suit.
11. On the other hand, the learned counsel for the defendants argued that the defendant No.5 is not a partner of the defendant Company and such being the case, he is not necessary party. It is argued that the PW1 admitted in the cross-examination about receipt of Rs.13,34,000/- from the defendants, but same is not mentioned in the plaint and the plaintiff has suppressed material facts and on this ground, the suit is liable to be dismissed. There is no document produced to prove the due of suit claim amount. The plaintiff has not produced account statement to prove the transactions and also due of suit claim amount. The plaintiff has taken up a new case in the cross-examination 14 OS No.6638/2014 that repayment has to be done in 3 installments. But, however this fact has not been pleaded in the plaint. Thus, the plaintiff has not come to the court with clean hands. The plaintiff has not produced any material documents like account statement and therefore, adverse inference has to be drawn against the plaintiff. It is also argued that all the invoices are created. In case, the plaintiff received part of the amount, the same ought to have been pleaded in the plaint and the claim ought to have been restricted only to the balance amount. Thus, the plaintiff failed to establish its suit claim and thus prayed to dismiss the suit.
12. Keeping in mind, the above submissions of both the parties, I have carefully perused the oral and documentary evidence produced by the parties. In this case, as already narrated, the plaintiff examined its Manager - Accounts Shashikumar Menon as PW1, who has narrated all the material facts of the plaint. He has 15 OS No.6638/2014 deposed categorically that the defendants failed to pay the amount due with interest and despite legal notice dated 10.3.2014 was duly served upon the defendants, they have made part payments and failed to pay the balance amount of Rs.25,34,895/-, which is comprising of principal of Rs.15,90,716/- and interest of Rs.9,44,179/-. The plaintiff produced documentary evidence. Ex.P.1 is letter of authority executed in favour of PW1 by the plaintiff to give evidence in this case. Ex.P.2 to P.28 are purchase orders of various dates, which are of the year 2009. Ex.P.29 to 125 are the invoices of various dates. Ex.P.126 is copy of legal notice dated 10.3.2014, where under, the defendants were called upon to pay the principal amount of Rs.25,12,828/- along with interest at the rate of 24% p.a. Ex.P.127 is postal receipt and Ex.P.128 is postal acknowledgment.
13. PW1 was subjected to cross-examination by the counsel for the defendants No.2 and 3, wherein he 16 OS No.6638/2014 admitted that they have done business with the plaintiff from 2010 to 2014. He has admitted that they have maintained accounts in this regard and admitted that he has not produced accounts with regard to business with the defendant No.1. He has admitted that except Ex.P.2 to P.28 there are no other purchase orders with them and so also Ex.P.29 to P.125 there are no other invoices with them. He is not certain whether all the invoices will not cover the purchase orders. He deposed that he has produced certain invoices, but not produced all the invoices. He has admitted that he has not produced the statement with regard to the amount paid by the defendants and amount due by the defendants.
14. He has clearly admitted that they have encashed cheque for Rs.13,34,000/- on 14.6.2014, but denied that the said cheque is with regard to full settlement of the due of the defendants. Though he deposed that he 17 OS No.6638/2014 has sent e-mail to the plaintiff informing due, but not produced the same. Though he stated that after issuing notice - Ex.P.26 and before issuing cheque defendants No.2 and 3 came and settled the matter agreeing to pay the money in 3 installments. But, however as rightly argued by the learned counsel for the defendants, there is no pleading about said talks. There is no pleading about receipt of Rs.13,34,000/- by the plaintiff. This clearly indicate that the plaintiff has suppressed material facts. Further, the plaintiff failed to produce accounts, which could have reflected the transactions between the parties and also due of the defendants. He clearly admitted that there is no document to show that the defendants agreed to pay more than Rs.13,34,000/-. He has denied that the said amount is towards full settlement. Ultimately, he has denied that it has filed false suit. He has clearly admitted that it has not filed this suit within 3 years of due amount. It is seen that most of the invoices are of the year 2009, 2010 and 2011 18 OS No.6638/2014 and this goes to show that the suit is within limitation. He has clearly admitted that they have produced documents to show that the defendant No.5 is the partner of 1st defendant Company but in fact no such document is produced. This clearly indicate that the defendant No.5 is not a necessary party in the suit.
15. On the other hand, the defendants examined 2nd defendant as DW1, who has filed his evidence affidavit reiterating the averments of the written statement. The witness produced Ex.D.1 - bank statement and Ex.D.2 - copy of the letter dated 12.6.2014. Though the witness was subjected to cross-examination by the learned counsel for the plaintiff, he has denied that said Anand Rao, who is defendant No.5 is not partner of 1st defendant Company. He has denied that there are transactions between plaintiff and defendant No.1 from the year 2009. He has admitted that Ex.P.2 to P.28 are purchase orders raised by him and 19 OS No.6638/2014 admitted that Ex.P.29 to P.125 are delivery challans, under which they have taken the delivery of goods sent by plaintiff. Ultimately, he has denied that they are liable to pay interest at the rate of 24% p.a. on the due amount. He has denied that the payment of Rs.13,34,000/- by them was towards part payment. He has reiterated that the same was towards full and final settlement. He has denied their liability.
16. On careful perusal of evidence on hand, reveal that the plaintiff has not clarified as to from which date the interest is to be calculated. It is not clear as to why the plaintiff failed to produce account statement with regard to business transactions between the plaintiff and defendants, which could have thrown much light on the due of the defendants. On careful perusal of the purchase orders Ex.P.1 to P.28 and invoices Ex.P.29 to P.125, it is seen that they are not corresponding to each other. There is no 20 OS No.6638/2014 specific pleading that what was the total due and how much of it was paid by the defendants. There is no pleading about the agreement to pay the due in three installments. The plaintiff has not pleaded that the agreement was arrived for payment of money in three installments. This goes to show that the claim of the plaintiff is not clear and acceptable. There is no specific pleading as to how the plaintiff is claiming the suit amount and there is no clarification on this aspect. No document produced to show the due of suit claim amount on the part of the defendants. Thus, the suit claim of the plaintiff is not satisfactory and unworthy of credence. On careful perusal of purchase orders - Ex.P.2 to P.28, which reveals that they are for Rs.28,16,583/- and invoices - Ex.P.29 to P.125 are for Rs.76,55,683/-, but the suit claim is not for either of these amounts. The plaintiff in the cross- examination stated that he has produced invoices for pending amount, which is not acceptable. Thus, there is 21 OS No.6638/2014 no acceptable basis for documentary evidence to the plaint claim of the plaintiff. The plaint claim and documents are contrary to each other and suit of the plaintiff cannot be accepted.
17. On the other hand, the defendants have probabalized that entire claim of the plaintiff was settled for Rs.13,34,000/-. PW1 himself admitted receipt of said amount under cheque. There is no satisfactory evidence on behalf of the plaintiff that there was agreement to pay the amount in 3 installments and that the cheque paid is for one installment. Thus, the defence set up by the defendants is more probable and safe to be accepted. Hence, the suit of the plaintiff is liable to be dismissed. So, Issue No.1, 2, 5 and 6 are answered in the negative and Issue No.3 is answered as does not arise for consideration and Issue No.4 is answered in the affirmative. 22 OS No.6638/2014
18. ISSUE NO.7: In view of my findings on above said issues, the suit filed by the plaintiff is liable to be dismissed with costs. Hence, in the result, I proceed to pass the following :
ORDER The suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed and typed by her, thereafter corrected and then pronounced by me in the open court, on this the 28th day of June 2019).
( KASANAPPA NAIK ) XLI ADDL.CITY CIVIL JUDGE BANGALORE 23 OS No.6638/2014 ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 Shashikumar Menon
b) Defendant's side:
D.W.1 : R.Ravishankar
II.List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 Original board resolution
Ex.P.2 to 28 27 Original purchase orders
Ex.P.29 to 97 original invoices
125
Ex.P.126 Copy of legal notice dated 10.3.2014
Ex.P.127 Postal receipt
Ex.P.128 Postal acknowledgment
b)Defendant's side :
Ex.D.1 Bank statement
Ex.D.2 Copy of letter dated 12.6.2014
( KASANAPPA NAIK )
XLI ADDL.CITY CIVIL JUDGE
BANGALORE
24 OS No.6638/2014
25 OS No.6638/2014