Bangalore District Court
M/S. Kamal Industrial Hardwares vs M/S. Mookambika Enterprises on 15 February, 2020
IN THE COURT OF LXIV ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU CITY
Dated this 15th day of February, 2020
-: P R E S E N T :-
Sri. RAJESHWARA
B.A., L.L.M.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
O.S.28/2016
PLAINTIFF: : M/s. Kamal Industrial Hardwares,
A Regd. Partnership Firm,
having its office at No.61,
Subha Complex,
60 ft KIADB Road,
Chokkasandra,
T. Dasarahalli,
Bengaluru-560 057.
Reptd. By its Proprietor,
Sri. K.Dalpath.
(By Sri. S. Ravikumar, Advocate.)
/Vs/
DEFENDANT : M/s. Mookambika Enterprises,
Navya Nilaya,
No.9/97, Opp: Centry Club,
Kanakanadi Post,
Mangalore-575002.
Rep.by its Proprietor,
Mr. Sudhakar Shetty.
2
O.S.No.28/2016
(By Sri. Channabasaveshwar Prakash,
Advocate.)
1. Date of institution of the : 19.12.2015
suit
2. Nature of the suit : Money suit
3. Date of commencement of : 29.6.2017
recording of evidence
4. Date on which the : 15.02.2020
judgment
was pronounced
5. Duration : years months days
4 1 14
JUDGMENT
Plaintiff filed this suit against defendant seeking money decree for a sum of Rs.4,06,088/-with interest thereon 24% p.a., from 16.9.2014 till its realization.
2. Brief averments of plaint is as under:
Plaintiff is the authorized dealer in Electrical and Hardware Goods Items. Defendant is regular customer of the plaintiff firm since last 2 years. Defendant purchased electrical and hardware items on credit basis from the plaintiff firm. Plaintiff submitted that, on 3 O.S.No.28/2016 1.4.2015 the closing balance amount was Rs.3,13,350/-.
On 16.9.2014, 24.9.2014, 17.12.2014, defendant purchased electrical hardware items totally Rs.3,13,350/- in various invoices including sale tax 12.5% from the complainant firm on the credit basis and requested the plaintiff firm for payment of due invoice amount within 3 to 4 months. Plaintiff approached the defendant seeking payment of the balance invoice amount, but defendant had given evasive reply. Thereafter, plaintiff issued legal notice dated 28.8.2015 through registered post and also issued notice through speed post to the defendant to pay invoice due amount of Rs.3,13,350/- with interest @ 24% per annum from 16.9.2014. The said registered post has been duly returned with shara "addressee out of station, unclaimed return to sender"
and speed post was duly served on the defendant and defendant got issued reply notice dated 16.9.2015 with untenable reply. Defendant is due for a sum of Rs.4,06,088/- to the plaintiff firm. 4
O.S.No.28/2016
3. Cause of action for the suit arose on 16.9.2014 and legal notice dated 28.8.2015 and reply notice dated 16.9.2015 and subsequently dates within the jurisdiction of this court. Hence, plaintiff prayed to decree the suit.
4. Defendants appeared through his counsel and filed written statement. In the written statement, defendant submitted that, plaintiff has filed the present suit against the defendant for the relief of recovery of money based on invoices. This suit is not maintainable either in law or on facts, hence, liable to be dismissed in limine. Plaintiff has suppressed the real facts in the suit. On this ground alone suit is liable to be dismissed. Averments made in para Nos.2, 3 and 4 of the plaint may be true and correct. Defendant purchased electrical hardware items for a total amount of Rs.3,13,350/- from the plaintiff firm on credit basis and further real facts of this case is that, the above said goods, items referred in this plaint was supplied to "Nitte Gramapanchayath of Karkala Taluk", through this defendant and further LRD 5 O.S.No.28/2016 Lights and other items supplied by the plaintiff were found to be defective within the warranty period and as a result, the said Nitte Gramapanchayath has filed police complaint against this defendant for defective material supplied by the plaintiff. Defendant has lost his reputation of his business with the "Nitte Gramapanchayath" and also in the locality, due to the negligence and mistake of the plaintiff. Averments made in para No.5 of the plaint is absolutely false and incorrect.
5. It is furtherer submitted that, averments made in para No.8 of the plaint is not within the knowledge of the defendant. Further averments made in para No.9 of the plaint that, defendant has due to a sum of Rs.3,13,350/- with interest @ 24% per annum is absolutely false. There is no agreement to pay interest to the plaintiff and defendant is not liable to pay amount as stated above. The cause of action arose for the suit is absolutely false and incorrect statement. There is no cause of action for the purpose of filing this suit. All other 6 O.S.No.28/2016 allegations made in the plaint are specifically denied as false and frivolous. Hence, defendant prayed for dismissal of the suit with exemplary costs.
6. Considering the averments asserted in the plaint, denied in the written statement, contents of documents produced by parties, our Predecessor -In- Office has framed the following issues:
1. Whether plaintiff is entitled to charge interest at the rate of 24% p.a. on outstanding balance amount?
2. Whether defendant proves that the electric materials which he purchased were defective?
3. Whether plaintiff is entitled for the relief sought for?
4. What Order or Decree?
7. To discharge the burden caste upon the parties, Proprietor of the plaintiff firm examined himself as Pw.1 and got marked 12 documents at Ex.P.1 to 7 O.S.No.28/2016 Ex.P.12. Despite sufficient opportunity, defendant neither examined himself nor examined any witness on his behalf.
8. Heard arguments.
9. It is answered for above issues are as under:
Issue No.1 : In the Affirmative Issue No.2 : In the Negative Issue No.3: In the Affirmative Issue No.4: As per final order for the following:
REASONS
10. ISSUES.NO.1:- To prove the ingredients of the plaint averments, Proprietor of the plaintiff firm filed his examination-in-chief affidavit. In the examination-in- chief affidavit, averments made in the plaint is reiterated. Pw.1 identified copy of the Value Added Tax Registration Certificate, Ledger Extract, Credit Tax Invoices, copy of the legal notice, postal receipts, undelivered postal cover, reply to legal notice as per Ex.P.1 to Ex.P.12. 8
O.S.No.28/2016
11. Pw.1 cross-examined by the counsel for the defendant. In the cross-examination Pw.1 admitted that, he is the proprietor of the plaintiff firm. He also admitted that, defendant has transacted with him from last two years and defendant had purchased electric hardware items worth Rs.3,13,350 under 6 invoices.
12. Plaintiff denied the suggestion that, defendant assured to pay the invoice amount within one year. He denied the suggestion that, he did not sell the electric hardware items to Nitte Gramapanchayath. Further Pw.1 denied that, said items are defective materials and also expired warranty period. He stated that, defendant informed that Nitte Gramapanchayath filed police complaint against defendant. He stated that, electrical hardware items are produced by Greenchit, Universal, Cisco and Ecova company. He denied the suggestion that, he is not entitled to charge interest @ 24% on amount due from the defendant and defendant had not any due to the plaintiff firm.
9
O.S.No.28/2016
13. Before appreciating evidence available on record, it is better to accumulate the undisputed facts in this case to narrow down the fact in issue to determine issues. It is not in dispute that, defendant approached plaintiff firm for purchase of electrical hardware items. It is not in dispute that, defendant is due to the plaintiff firm. Dispute of the defendant is that, he is not liable to pay any invoice amount. No amount as alleged in the plaint was due by the defendant. There is no documents to show that, plaintiff is agreed to charge fixed rate of interest on outstanding amount from the defendant.
14. This suit is filed by the plaintiff for recovery of outstanding amount for supply of electric goods to the defendant. Plaintiff filed this suit on the basis of the account maintained during the course of business. Admittedly, transaction between the plaintiff and defendant is a commercial transaction. There is no contract entered into between the plaintiff and defendant specifying the rate of interest to be charged for 10 O.S.No.28/2016 outstanding amount payable. In the absence of such contract, charging 24% interest on outstanding due amount by the plaintiff is justifiable. Hence, issue No.1 is answered in the affirmative.
15. ISSUE NO.2:- So for as issue No.2 is concerned, except reply to legal notice, suggestion in the cross-examination of Pw.1, defendant not adduced any evidence to show that, purchased electrical materials were defective. Further, defendant not produced any endorsement to show that, electric materials purchased from the plaintiff company was returned to plaintiff company. In the absence of any evidence as well as supportive documents, it is difficult to accept the objection raised by the defendant that, electric materials supplied by the plaintiff firm was defective. Hence, issue No.2 is answered in the Affirmative.
16. ISSUE NO.3: For the aforesaid discussion in the above issues No.1 and 2, this court is of the opinion 11 O.S.No.28/2016 that, plaintiff is entitled for the rlelief as prayed in the plaint. Hence, issue No.3 is answered in the affirmative.
17. ISSUE NO.4:- For the aforesaid reasons and discussions made herein above, this court is of the opinion, plaintiff firm is entitled for decree of the suit as prayed in the plaint.
18. Plaintiff is a trader. Plaintiff filed this suit based on account maintained during the course of business. Plaintiff instituted the suit by paying court fee and engaged counsel, hence, entitled for cost. Hence, following order is made;
ORDER Suit of the Plaintiff-firm is decreed with costs as under:
It is ordered that defendant do pay a sum of Rs.4,06,088/- to the Plaintiff-firm with interest thereon 24% p.a. from 16.9.2014 till its realization.12
O.S.No.28/2016 Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court on this 15th day of February 2020).
(RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE (CCH-65), BENGALURU CITY.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF:
Pw.1 K.Dalapath DOCUMENTS MARKED FOR THE PLAINTIFF:
Ex.P.1 Copy of Value Added Tax
Registration Certificate.
Ex.P.2 Ledger Extract.
Ex.P.3 to Ex.P.7 Credit Tax Invoices.
Ex.P.8 Copy of the Legal Notice.
Ex.P.9 & Ex.P.10 Postal Receipts.
Ex.P.11 Undelivered postal cover.
Ex.P.12 Reply to legal notice.
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O.S.No.28/2016
WITNESSES EXAMINED FOR THE DEFENDANT:
-Nil-
DOCUMENTS MARKED FOR THE DEFENDANT:
-Nil-
(RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65) BENGALURU CITY. 14 O.S.No.28/2016 15 O.S.No.28/2016 16 O.S.No.28/2016 15.02.2020 Judgment pronounced in open court vide separate Judgment.
ORDER Suit of the Plaintiff-firm is decreed with costs as under:
It is ordered that defendant do pay a sum of Rs.4,06,088/- to the Plaintiff-firm with interest thereon 24% p.a. from 16.9.2014 till its realization.
Draw decree accordingly.
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65) BENGALURU CITY.
1 O.S.No.28/2016