Bangalore District Court
O.S./2187/2013 on 24 August, 2021
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri. MALLIKARJUNA., B.Com., LL.M.,
XIV ADDL. CITY CIVIL JUDGE
Dated this the 24th day of August, 2021
O.S.No.2187/2013
Plaintiff/s :
M/s S.J.Infotech,
Aproprietary concern with its
registered office in No.84/4,
4th Floor, 5th Cross
Dodamma Layout, Hulimavu,
Bhannerghatta Road,
Bangalore-560076
R/by its Authorized Signatory
Mr. Jayakumar.
(By Sri.B.M.S, Advocate)
- Vs -
Defendant/s :
1. M/s HCL Infosystems Ltd,
A company incorporated under the
provisions of the Companies Act,
with it's Branch Office in
Shubharam Complex, No.144,
MG Road, Bangalore-560001.
Represented by its Director
2. Mr. Sathya Sai,
Aged Major,
Father's Name not known to the
plaintiff and working as the
O.S.No.2187/2013
2
Vice President,
M/s HCL Infosystems Ltd,
No.144, MG Road
Bangalore-560001.
3. Mr. V.Padmanabhan,
Aged Major,
Father's name not known to the
plaintiff and Working as the Chief of
Dept of Finance,
M/s HCL, No.144, Shubharam Complex,
Bangalore-560001
(By Sri.R.S., Adv. For Deft No.1 & 2
Deft No.3 - Exparte)
Date of institution
of the suit : 19-03-2013
Nature of the suit
[suit on pronote, suit : Recovery of Money
for declaration and
possession, suit
for injunction]
Date of the commencement
of recording of the evidence : 26-11-2014
Date on which the
Judgment was pronounced : 24-08-2021
Year/s Month/s Day/s
Total Duration 08 05 05
JUDGMENT
This suit is filed by the plaintiff against the defendants for recovery of money.
O.S.No.2187/2013 3
2. The brief facts of the plaintiffs' case are as under:
Plaintiff is in business of supply and sale of I.T. products of branded computers, services, scanners, printers and computer peripherals and software development. He has been supplying purchasing I.T. products from the first defendant for the last 2-3 years. In the course of such transaction, the plaintiff has purchased T.I. products from the first defendant and he has also delivered I.T. products to the first defendant. The placement of purchase order on occasion over phone or e-mail and actual delivery of these supply with an endorsement on the delivery challan by the recipient, raising of invoice, and reconciliation of Accounts for different supplies/sales made over a period of time. That in the course of transaction as stated above, the first defendant requested the plaintiff to supply I.T. products to him and his clients M/s Madura Garments, M/s Arbind Limited, M/s Safe Express and other third parties. The plaintiff supplied I.T. products to the above mentioned O.S.No.2187/2013 4 entities under different invoices, and delivery of the materials is also acknowledged by these entities by necessary endorsement of the challan, subject to reconciliation of account on or before 31 st March 2011, a total sum of Rs.36,91,715/- was due to the plaintiff as against the different supplies as well as made to the above mentioned customers. That the plaintiff even before March 2011 was purchasing with the first defendant for payment of amounts let in arrears as the same affecting the plaintiff's business operations. The first defendant represented by the 2nd and 3rd defendant as a matter of settling the amount of Rs.36,91,715/- and hereinafter referred to as 'Amount Due" due to the plaintiff. The first defendant had supplying 100 desk top to M/s Comp U Soft, and because of an interse arrangements, the first defendant requested M/s Comp U. Soft to deliver 50 desktops to the plaintiff with a request to the plaintiff to liquidate such desktop and adjust the price received towards the amount due to the plaintiff. It is also submitted that M/s Comp U Soft to deliver 50 O.S.No.2187/2013 5 Desktops to plaintiff premises on 22.01.2011. The plaintiff has made necessary acknowledgement in writing and delivery challans. The plaintiff has realised a sum of Rs.7,70,000/- from the sale of such 50 desk tops, the plaintiff requested the defendant No.1 for invoice, a document essential to complete the settlement of statements in the book of bank account insofar as the amounts due from the first defendant. The first defendant assuring to issue invoice requested with the plaintiff to issue post dated cheques for a sum of Rs.7,70,000/- as security until reconciliation of accounts. That the first defendant in violation of mutually agreed and accepted terms and despite there being no asserted debt or liability, initiated proceeding under Section 138 of Negotiable Instrument Act in the Court of ACMM, New Delhi. In these proceedings, the defendant suppressed all material facts including the fact that the cheque was issued only as security in relationship to transaction as detailed in para No.7 presented by the defendants for encashment with the same was dishonoured, the O.S.No.2187/2013 6 defendant initiated proceedings under Negotiable Instrument Act. Therefore, the plaintiff constrained to settle above criminal case has paid a sum of Rs.11,55,000/- towards the full and final settlement. This amount is inclusive of the cheque amount of Rs.7,70,000/-. That first defendant placed order with the plaintiff to supply 140 H.P. to M/s Comet Technologies Private Limited has endorsed delivery of 140 H.P. Laptops on 8.11.2010. The first defendant has also received a sum of Rs.43,51,200/- payable to the plaintiff towards above said laptops. The plaintiff has also replaced 3 laptops which has been confirmed by defendant No.1 by e-mail on 12.4.2011. The plaintiff was instructed to take deliver 500 Desktops from M/s Comet Technologies Pvt. Limited and sell them to recover the amount due. The mutually agreed value of such 500 desktop 80,10,000/-, the plaintiff was to refund to the defendant No.1 a sum of Rs.36,58,000/- after deducting Rs.43,67,200/-. The plaintiff in anticipation of reconciliation of accounts and early settlement of the amount due, and being a bonafide O.S.No.2187/2013 7 business entity, received 500 desk tops on 2.03.2011 and paid an advance of total sum of Rs.8,50,000/- between 8 and 15th march 2011, at the instance of the first defendant also issued four cheques for total sum of Rs.36,58,000/- in the month of May 2011 as security. The plaintiff and the first defendant agreed that the cheque for a sum of Rs.11,58,000/- would not be presented for encashment until entire account between first defendant and plaintiff was reconciled and the plaintiff was paid the amount due. Accordingly the first defendant encashed 3 cheques for Rs.25,00,000/- dated 29.5.2011 and other two cheque were not encashed. A cheque for Rs.25,00,000/- was presented in the month of June-July 2012, the first defendant informed and assured the plaintiff for a sum of Rs.11,58,000/- and Rs.7,70,000/-
could not be presented for encashment. The plaintiff has issued stop payment instruction in so far as the cheque for Rs.7,70,000/- and Rs.11,58,000/-. The first defendant called upon the plaintiff to supply Desktops for total value of Rs.3,50,000- in the month of March 2012 at New Delhi O.S.No.2187/2013 8 at their addresses and assured that immediately upon delivery of such IT products payments therefore would be made as part of the reconciliation of the Account and settlement of dues to the plaintiff. Therefore, the plaintiff executed the delivery of the material at their place in New Delhi through M/s Mukul Computers, in this regard the defendant is liable to pay a sum of Rs.3,50,000/- to the plaintiff. Further the first defendant instructed the plaintiff to supply of its behalf, External Batteries for the Laptops to M/s Comet Technologies Pvt.Ltd. As per specifications for these external batteries worth Rs.15,75,000/- and taxes. The plaintiff had supplied those batteries. The first defendant has made payment in this regard. However, he has subsequently informed the plaintiff that M/s Comet Technologies private Limited requested the first defendant to take back those batteries. In turn first defendant requested plaintiff to take redelivery of those battery as against issuance of post dated cheque for Rs.16,53,750/- that is including taxes as a security. So the plaintiff is entitle to claim set of this amount of O.S.No.2187/2013 9 Rs.15,75,000/- from the amount due to the first defendant as part of the Reconciliation of Accounts as per the settlement of account maintained by plaintiff in respect of transaction held with defendant No.1 and on his instructions with 3rd parties defendants are jointly and severally liable to pay a sum of Rs.13,87,915/- Accordingly legal notice has been issued. The defendants instead of complying terms of the notice have given evasive reply. Therefore present suit is filed prayed for decreeing the suit in favour of the plaintiff against the defendants directing them to pay jointly and severally a sum of Rs.13,87,915/- with interest at the rate of 18% per annum and until realization of the same, further the defendant to pay a sum of Rs.7,70,000/- with interest at the rate of 18% per annul until realization.
3. After service of summons, the defendant No.3 remained absent, hence he has been placed exparte, the defendant No.1 and 2 have appeared before the court through their counsel and filed written statement. The O.S.No.2187/2013 10 brief facts of the written statement of defendant No.1 are as under.
The suit of the plaintiff is not maintainable either in law or on facts of the case. He has suppressed the material facts, has not approached the Court with clean hands, hence suit is liable to be rejected. The defendant No.1 is a company, defendant No.2 is Vice-President, defendant No.3 was Account Manager and looking after the account of the company at Bangalore branch and now he is left his job, he is no longer working under defendant No.1. The plaintiff was their business associate who markets their products. In the course of their business the plaintiff turned out to be chronic defaulter in respect of payment made to defendant for the products supplied by them to the plaintiff the plaintiff had issued some of the cheques towards his legally enforceable dues they were dishonoured on their presentation. Therefore, the first defendant initiated proceedings against plaintiff in respect of dishonour of cheque under Section of 138 of Negotiable Instrument Act. The plaintiff formulated the O.S.No.2187/2013 11 idea of filing this suit relying on irrelevant and bogus documents. The clear perusal of the documents shows that the delivery was done to third parties and illegal invoices were raised to defendant No.1. After that a sham and false story is created, so as to illegally show that the defendant No.1 is due of some money to the plaintiff, but the actual fact is that the defendant No.1 is not due of any payment to plaintiff but the plaintiff himself has to pay dues to the defendant No.1 running into lakhs of rupees. Further the plaintiff is also convicted by Court of law in one such case filed by defendant No.1 hence the present plaint is filed to cover up the misdeeds of the plaintiff on irrelevant documents and sham contentions. On this ground also plaint is liable to be dismissed. The contentions of the plaintiff that on the instructions of the defendant No.1 he has supplied goods to third parties like Madura Garments, Arvind Limited, Safexpress etc, and he has raised invoices and the delivery challans have been acknowledged by defendants are all false, therefore denied. The payment made to 3 rd party like Mukul O.S.No.2187/2013 12 Computes Agra and Netsys Solutions Pvt.Limited is also not admitted. The delivery challans are subject matter of deliveries to the third parties for which defendants have no concern and no previty of contract ever existed among the plaintiff and defendant and among the parties to whom supplies alleged to have been made. The alleged transaction held with Arvind Lifestyle, Madura Garments Express etc. shows a sum of Rs.3,50,000/- transferred through R.T.G.S. to M/s Mukul Computers Agra and Netsys Solutions Pvt.Limited a sum of Rs.90,6000/- shown as cheque deposit in the occasion of Netsys Solution private Limited, whereas bill has raised as defendant No.1 so holding defendant No.1 responsible for the goods delivered and money paid to third party as a fraudulent act of the plaintiff the defendant has no involvement of whatsoever in the transaction mentioned in this regard. It is also strange that as per Annexture-B on 19.5.2011 the plaintiff shows a sum of Rs.3,50,000/- transferred to Mukul Computers and in continued list he shows that payment for a sum of Rs.90,600/- was made in favour of O.S.No.2187/2013 13 Netsys Solutions Pvt Limited, for the reason best known to plaintiff, but he is claiming payment of the same from the defendant No.1 for the goods supplied to unknown persons. This itself is sufficient to demonstrate that plaintiff has filed a false case against the defendant No.1. All other transaction shown making defendant No.1 liable are unconcerned to this defendant. This defendant is no way concerned to the said transactions and not liable to the amount payable to the plaintiff. The claim of the plaintiff is against this defendant is baseless, false, hence denied. There is no cause of action to file the suit. The defendant No.1 was never due any amount to the plaintiff and even he has not filed single authenticated document to demonstrate to establish that this defendant is due any amount payable to the plaintiff. The suit filed by the plaintiff for recovery of Rs.13, 87,915/- is contradictory false therefore denied. Hence, prayed for dismissal of the suit with exemplary cost.
O.S.No.2187/2013 14
4. On the basis of the above pleadings, materials and documents, my predecessor in office has framed the following issues:
1. Whether the plaintiff proves that the defendants to be liable to pay the suit claim amount towards the transaction of supply of I.T. products?
2. If so, what is the rate of interest to which the plaintiff company is entitled?
3. Whether the suit is in time?
4. What order or decree?
5. In order to prove these issues, one Sri.V.Jayakumar, Business Head of plaintiff examined as P.W.1 and got marked 82 documents as Ex.P-1 to 82. On behalf of the defendants, Sri.Shankar Singh Jina, Consultant of the defendant No.1 company examined as D.W.1 and got marked 5 documents as Ex.D.1 to 5 and closed their side evidence, case is posted for argument.
6. Heard the arguments of both sides. Perused pleading, evidence and documents relied by both parties.
O.S.No.2187/2013 15
7. My findings to the above issues are as follows :
Issue No.1 : In the negative,
Issue No.2 : In the negative,
Issue No.3 : Answer accordingly,
Issue No.4 : As per final order
for the following;
REASONS
8. ISSUE No.1: According to the plaintiff, he is in business of supply/sale of IT products i.e. sale and supply of branded computers, servers, scanners, printers and computer peripherals, apart from being engaged in Software Development. The plaintiff has been supplying/purchasing IT products from the first defendant for the last 2-3 years. In the course of business transaction the plaintiff has purchased IT products from the defendant No.1 and he has also supplied IT products to the first defendant. In the course of said business, first defendant had requested the plaintiff to supply IT products to the first defendant and its client M/s Madura Garments, M/s Arvind Limited and M/s Safe Express and O.S.No.2187/2013 16 other third parties. The plaintiff supplied IT products under different invoices and delivery the materials is also acknowledged by these entities by necessary endorsement of the challan. Subject to reconciliation of Accountants on or before 31st March 2011, a total sum of Rs.36,91,715/- was due to the plaintiff as against the different supplies/sales made to the above mentioned customers. It is also submitted that M/s Comp U Soft has deliver 50 Desktops to the plaintiff premises on 22-01- 2011. The plaintiff has made necessary acknowledgement in writing on the Delivery Challan and he has released a sum of Rs.7,70,000/- in this regard. The plaintiff has been requested the first defendant for invoice, a document essential to complete the settlement of statements in the Book of Accounts insofar as the amount due from the first defendant. However, the first defendant has assuring to issue invoice and requested the plaintiff to issue post dated cheques for a sum of Rs.7,70,000/-as security until reconciliation of accounts. On such assurance the plaintiff has issued post dated O.S.No.2187/2013 17 cheque for the above said sum towards security. But the defendant No.1 in violation of mutually agreed and accepted terms and despite there being no asserted debt or liability, initiated proceeding under Section 138 of Negotiable Instrument Act, before ACMM, New Delhi. Further the first defendant placed order with the plaintiff to supply 140 H.P. laptop to M/s Comet Technologies Private Limited and the plaintiff in compliance of said order delivered 140 laptops to M/s Comet Technologies private Limited on 8-11-2010. That M/s Comet Technologies Private Limited, endorsed for receipt of 140 laptops. The first defendant has also received invoice for a sum of Rs.43,51,200/- payable to the plaintiff towards supply of laptops but he has paid any amount to the plaintiff. The plaintiff has made repeated requests and pursed with the first defendant for reconciliation of payment of amount due and instructed to take delivery of 500 Desktops from M/s Comet Technologies private ltd and liquidate/well them to recover the amounts due. The cost of 500 Desktops was Rs.80,10,000/- and the O.S.No.2187/2013 18 plaintiff was to refund to the first defendant a sum of Rs.36,58,000/- after deducting a sum of Rs.43,51,200/-. The first defendant has also issued open post dated 4 cheques for total sum of Rs.36,58,000/- in the month of May 2011 as Security. The plaintiff is entitle to claim set off of this amount of Rs.15,75,000/- and the other amount due from out of amounts due from the first defendant as part of the reconciliation of accounts. Therefore present suit is filed, accordingly prayed for decree the suit. These facts have been denied by the defendant in his written statement contended that the very claim of the plaintiff is illegal, it is baseless, contrary to the records and based on concocted story. The defendant is not liable to pay any amount much less suit claim to the plaintiff. The plaintiff has filed instant suit as a counter suit for the criminal complaint filed against him by the defendant under Section 138 of Negotiable Instrument Act. The plaintiff has created documents to suit his convenience. This defendant is not liable to pay any amount. Hence prayed for dismissal of the suit.
O.S.No.2187/2013 19
9. As already stated above, to prove the case of the plaintiff he himself got examined as PW.1, in his affidavit filed in the form of examination-in-chief he he has reiterated the plaint averments and relied Ex.P1 to 82 documents. Ex.P-1 is the letter of authhorization Ex.P-2 to 42 are the delivery challans, Ex.P-43 is the Gate pass, Ex.P-44 to 49 are tax invoices and delivery challans, Ex.P-50 is the cash voucher, Ex.P-51 to 53 are delivery challans, Ex.P-54 to P-57 are the receipts, Ex.P-58 is the letter, Ex.P-59 is the statement of account, Ex.P-60 is the office coy of notice, Ex.P61 is outstanding amount shown in Annexures A and B, Ex.P-62 to P-66 are the postal receipts, Ex.P-67 to 69 are the postal acknowledgements, Ex.P-70 and 71 are postal covers, Ex.P-72 to 79 are the email transactions, Ex.P-80 is the Certified copy of Crl.Appeal 301/2014, Ex.P-81 is the Memorandum of settlement, Ex.P-82 is the purchase order. Though the P.W.1 in his affidavit filed in the form of examination-in- chief has reiterated the plaint averments but in his cross- examination he has deposed as under.
O.S.No.2187/2013 20 "The 1st defendant has not directly given 50 desktops to us which amounts to Rs.7,70,000/-. They were given by Compu Software Company to us. It is true to suggest that, in respect of that amount the cheque issued was bounced for which criminal case was registered and I had accepted that amount and paid. Witness states that still sum amount is yet to be paid. I have not produced any document to show that Mala Jayakumar is proprietor of plaintiff company. It is true to suggest that, Mala Jayakumar has not issued power of attorney. It is false to suggest that Ex.P-1 authorisation is only to authorize to represent the case not for giving the evidence.
10. That on perusal of the above evidence of P.W.1, it appears that the proprietor of plaintiff company has not given any authorisation to P.W.1 or giving evidence in this case. So it is for the plaintiff to establish what locus-
O.S.No.2187/2013 21 standi had P.W.1 to depose on behalf of plaintiff in this case. The PW.1 further deposed as under:
"It is false to suggest that defendant company has not issued any official communication for placing purchase order by information Technology products. It is true to suggest that, Ex.P.78 purchase order is cancelled due to change of specification order. It is true to suggest that, already defendant No.1 has paid the money as per Ex.P-78. It is true to suggest that, there is no invoice pertaining to Ex.P-78, witness voluntarily stated that each order is get purchase order or e-mail. All the invoices produced in this case against defendant No.1 does not support with purchase order. Witness stated that they are supported with e-mail communication. The Ex.P.73 bill is not pertaining to defendant No.1, it pertains to Arvind Ltd., witness voluntarily stated that our company has not issued any invoices, only on O.S.No.2187/2013 22 the basis of e-mail have continued the transactions."
11. On perusal of the above evidence, one point is clear that, though the plaintiff in this suit categorically contended that, he used to receive purchase orders from defendant No.1 through mail accordingly he used to supply the electronic goods to the alleged customers of defendant No.1. If such would be the fact, it is quite natural that the defendant ought to have placed purchase order and thereafter plaintiff has raised invoices in the name of first defendant. Admittedly in the present case plaintiff has not raised invoices directly. Even the plaintiff has not produced relevant correspondence to show that the defendant No.1 had placed any purchase orders to the plaintiff. Such being the case the contentions of the plaintiff that he used to supply the electronic goods to alleged different customers of defendant No.1 on his instructions and in O.S.No.2187/2013 23 pursuance of purchase orders placed by defendant No.1 does not holds water.
The P.W.1 in his further cross examination deposed as under.
" I have not raised any invoices against Madhura garments, Arvind Ltd. Safe express and other 3rd parties. It is false to suggest that I have deposed falsely that I have not raised any invoices against Madhura garments, Arvind Ltd., Safe express and other 3rd parties as per Ex.P.44. I have not produced any document or letter that the defendant No.1 has placed the order for supply of 140 HP Laptop to Comet Technologies, witness voluntarily stated that only on e-mail we have supplied. I have not produced any document regarding order for supply of 140 HP Laptops. I have not produced any documents to shown that defendant No.1 has instructed to take delivery of 500 Desktops from Comment Technologies. It is true to O.S.No.2187/2013 24 suggest that, defendant No.1 has not placed any order for buying I.T. products. Again witness stated that it is false to suggest that defendant has not placed any order for buying".
12. On perusal of the above evidence of P.W.1, it clearly reveals that his evidence is not definite and constant. On the other hand it is fluctuating time to time. In one breath he contends that on the request of defendant No.1 and purchase order placed by him the plaintiff used to supply electronic goods to customer of defendant No.1, particularly 140 H.P. Laptop have been supplied to the customer of the defendant No.1 on his request only. But evidence of P.W.1 is quite contrary to his own contention. In one breath he contends that he had received purchase orders from defendant No.1, in another breath he contends that he has not received any purchase order from defendant No.1 for supply of 140 laptops, so also he has categorically admitted that he has not placed any document to show that defendant No.1 has placed purchase orders for supply of 140 HP laptops O.S.No.2187/2013 25 to the Madhura Garments and other third parties. Even on keen observation of the documents relied by plaintiff, it clearly reveals that no document has been brought on record to show that defendant No.1 has placed purchase order for supply of 140 laptop to Madhura Garment or any other third party. Such being the facts of the case the contention of the plaintiff that said transaction has been made on his instructions of defendants and they are liable for it appears to be unreasonable to accept. The evidence of P.W.1 is totally contrary to the contentions of the plaintiff arguments seems to be reasonable.
That the P.W.1 in his further cross-examination deposed as under.
"It is true to suggest that, delivery challans produced by me are delivered to 3 rd parties, witness voluntarily stated that some products are delivered to defendant No.1. it is true to suggest that, tax invoice is in the name of defendant No.1 and O.S.No.2187/2013 26 delivery challans are in the name of 3rd party."
13. That on perusal of the above evidence of P.W.1 it clearly reveals that, the delivery challans produced by the plaintiff are pertains to third parties. They are not pertaining to the defendant No.1. As already discussed above the plaintiff has not produced document to show that defendant No.1 had placed any purchase order for supply of 140 laptops nor he has endorsed delivery challans even then he has raised invoices on defendant No.1, but failed to substantiate his claim argument appears to be reasonable. The P.W.1 further deposed as under:
" It is true to suggest that, Ex.P-15 is a bill standing in the name of defendant No.1 but the products of Ex.P.15 are delivered to Madhura garments as per Ex.P.16. The delivery challan number in Ex.P-15 is 003. it is false to suggest that, the delivery O.S.No.2187/2013 27 challan number in Ex.P.16 is 403. It is false to suggest that I have correct the delivery challan in Ex.P-16 only with an intention to match with D.C. Number of Ex.P.15".
14. On perusal of above evidence, it clearly reveals that the delivery challen is standing in the name of third party i.e. Madhura Garment. According to the plaintiff said materials have been supplied by him to Madhura Garment on the instructions of defendant No.1. But he has not placed relevant document to show that such instructions. Even for the shake of argument the contention of plaintiff is considered to be true then the person who has received the goods is proper to say about the said transaction admittedly he has not made party in this case. On perusal of the other documents relied by the plaintiff, it clearly goes to show that the goods which were supplied to third parties are not party to the suit. So the burden is on the plaintiff to establish that O.S.No.2187/2013 28 transactions were held only on the instructions of defendant No.1 and defendant No.1 alone is liable for which said transactions. The very evidence of P.W.1 is not helpful for the plaintiff to establish the contentions of the plaintiff, so also the documents relied by the plaintiff are totally insufficient to come to the conclusion about alleged liability of the defendant No.1 in respect of the suit claim. On perusal of the contents of Ex.P.15 and 16 it clearly reveals that they are having corrections who have made those corrections and when they have been made on whose instruction they have done is not explained. According to the defendant No.1, it has been made by the plaintiff only to match the sequence for his convenient thereby put liability on the defendant No.1. It is his further contention that they are the document apparently face on it appears to be tampered for convenient of the plaintiff, hence they cannot be relied arguments seems to be reasonable. The P.W.1 in his further cross examination deposed as under.
O.S.No.2187/2013 29 " It is true to suggest that, I am liable to pay Rs.35 lakhs and more money to defendant No.1. Witness voluntarily stated that we have paid the money.
The plaintiff had issued 3 cheques to defendant No.1 for payment of these dues. Witness states that he has issued 7 cheques. It is true to suggest that, one of the cheque was dishonoured and I have convicted. It is true to suggest that, I have not complied the terms and conditions of Ex.P.80 and 81, witness states that I took time to clear the balance amount. It is true to suggest that, I have filed the suit against defendant No.1 as the defendant No.1 has filed the cheque bounce case."
15. On perusal of the above evidence, it clearly reveals that, P.W.1 in an unequivocal term and O.S.No.2187/2013 30 categorically admitted that plaintiff himself is owe due payable to the tune of Rs.35,00,000/- to the defendant No.1. If such would be the fact how the defendant No.1 is made liable to pay the suit claim has not been explained. As P.W.1 in his cross examination clearly admitted that since for the reasons that defendant No.1 has filed criminal case against the plaintiff in respect of cheque bounce case. The plaintiff has instituted the suit against the defendants. The evidence placed on record on behalf of the plaintiff are totally insufficient and it is not helpful for establishing the contention of the plaintiff. Though the defendant to prove his contention examined one witness and relied 5 documents as Ex.D1 to D5. Ex.D-1 is the certified copy of judgment in C.C.No.108/2013, Ex.D- 2 is the certified copy of acknowledgement, Ex.D-3 is the certified copy of the cheque dated: 29.3.2012, Ex.D-4 is the letter of authority. Ex.D-5 is the Resolution. Since the initial burden is on the plaintiff to establish the plaint averments with cogent and convincing evidence, after discharging his burden the onus shifts on the defendant O.S.No.2187/2013 31 to establish the facts set up in his defence argument holds good. As already stated above, P.W.1 himself in an unequivocal term admitted that the plaintiff is still owes to pay due amount of Rs.35 lakhs to the defendants, though he has tried to contend that said amount has already been paid to the defendants, but he has not placed single piece of document to show that he has paid due amount to the defendants. Such being the case the contentions of P.W.1 that he has already paid amount payable to the defendant No.1 does not holds good. The plaintiff has miserably failed to prove issue No.1, accordingly I have answered it in the 'negative'.
16. Issue No.2: Since the plaintiff has filed instant suit with specific contentions defendants are jointly and severally are liable to pay Rs.13,87,915/-, as on the date of suit. Therefore, defendants No.1 to 3 are also liable to pay interest at the rate of 18% per annum on the said amount, accordingly prayed for decree the suit. As already discussed in issue No.1, the plaintiff has miserably failed to establish his contention with cogent O.S.No.2187/2013 32 and convincing evidence that defendants are jointly and severally liable to pay suit claim. Such being the case his contention that he is entitled for interest at the rate of 18% per annum on the suit claim does not holds good, the plaintiff has miserably failed to prove issue No.2, accordingly I have answered it in the 'negative'.
17. Issue No.3: According to the defendant, suit of the plaintiff is time barred, hence prayed for dismissal of the suit. Since the plaintiff has miserably failed to establish that defendants are liable to pay suit claim of Rs.13,87,915/- with interest. The very contention of the plaintiff set up in the suit have not been proved and established by him with cogent and convincing evidence. So the contention of the defendant that suit of the plaintiff is time barred is not required to be proved argument seems to be reasonable. Therefore, I have answered this issue accordingly.
18. Issue No.4 :- In the result, I proceed to pass the following;
O.S.No.2187/2013 33 ORDER The Suit of the plaintiff is dismissed with costs.
Draw the decree accordingly.
[Dictated to the Judgment writer, transcribed & computerized by him, corrected on computer and signed by me then pronounced in the Open Court, dated this the 24th day of August, 2021] (MALLIKARJUNA) XIV Addl. City Civil Judge Bangalore.
ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
P.W.1 : Sri.V.Jayakumar List of documents marked on behalf of the plaintiff/s:
Ex.P-1 : Letter of authorization Ex.P-2 to 42 : Delivery challans Ex.P-43 : Gate pass
Ex.P-44 to 49 : Tax invoices and delivery challans Ex.P-50 : Cash voucher O.S.No.2187/2013 34 Ex.P-51 to 53 : Delivery challans Ex.P-54 to P-57 : Receipts Ex.P-58 : Letter Ex.P-59 : Statement of account Ex.P-60 : Office coy of notice Ex.P-61 : Outstanding amount shown in Annexures A and B, Ex.P-62 to P-66 : Postal receipts Ex.P-67 to 69 : Postal acknowledgements Ex.P-70 & 71 : Postal covers Ex.P-72 to 79 : e-mail transactions Ex.P-80 : Certified copy of Crl.Appeal 301/2014 Ex.P-81 : Memorandum of settlement Ex.P-82 : Purchase order.
List of witnesses examined on behalf of the defendant/s:
D.W.1 : Sri.Shankar Singh List of documents marked on behalf of the defendant/s :
Ex.D-1 : Certified copy of judgment in C.C.No.108/2013 Ex.D-2 : Certified copy of acknowledgement Ex.D-3 : Certified copy of the cheque dated: 29.3.2012 O.S.No.2187/2013 35 Ex.D-4 : Letter of authority Ex.D-5 : Resolution.
XIV Addl. City Civil Judge Bangalore.