M/S Soundarya Graphics vs M/S Rose Flowers Cp/(Papers) Pvt ...
2022 Latest Caselaw 4903 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 16TH DAY OF MARCH, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

               R.F.A NO.2331 OF 2019(MON)

BETWEEN:

1. M/S SOUNDARYA GRAPHICS
NO. 26-A-STREET, NEW GUDDAHALLI,
MYSORE ROAD, BENGALURU-560026.
BY ITS PROPRIETOR PREMANAND

2. MR. PREMANAND
PROPRIETOR,
M/S. SOUNDARYA GRAPHICS,
NO. 283, BBMP PARK,
6TH MAIN ROAD, 1ST PHASE,
IDEAL HOME LAYOUT, RR NAGAR,
BANGALORE-560098

                                              ...APPELLANTS

(BY SRI.R. KIRAN, ADVOCATE)

AND:

M/S ROSE FLOWERS CP/(PAPERS) PVT LTD.,
NO. 230/235, SRINATH BUILDING,
2ND FLOOR, SULTANPET,
BANGALORE-560053,
REP BY PA HOLDER S. MAHADEVAIAH
                                              ...RESPONDENT
(BY SMT.S MANJU ANAND, ADVOCATE)
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     THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE JUDGMENT
AND DECREE DATED 12.07.2019 PASSED IN O.S.NO.8096/2016 ON
THE FILE OF THE X ADDITIONAL CITY CIVIL AND SESSIOS JUDGE,
BANGALORE, PARTLY DECREEING THE SUIT FOR RECOVERY OF
MONEY.

     THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

The captioned regular first appeal is filed by the

defendants assailing the judgment and decree dated

12.7.2019 passed in O.S.No.8096/2016 by the X Additional

City Civil and Sessions Judge at Bengaluru City, wherein the

suit is decreed holding that the plaintiff is entitled to recover a

sum of Rs.5,98,039/- with interest at 24% per annum from

14.5.2014 till its final realisation from defendants 1 and 2

jointly and severally, however, the claim of the plaintiff insofar

as Rs.2,94,566/- is concerned, the same is dismissed. This

part of the judgment and decree is not challenged by the

plaintiff.

2. For the sake of convenience, the parties are

referred to as per their rank before the trial Court.

3. The facts leading to the case are as under:

(a)The plaintiff filed a suit for recovery by alleging that

the plaintiff-firm is a distributor for paper and paper articles

for reputed paper manufactures in India. The defendants are

in the field of printing and other allied activities. The

defendants purchased the paper and paper articles under the

invoice No.B383/14-15 dated 12.05.2014 for a sum of

Rs.2,94,566/- and Rs.5,98,039/- under invoice No.B407/14-15

dated 14.05.2014. The grievance of the plaintiff was that

defendants made partial payment and the balance amount of

Rs.6,68,175/- was due and inspite of demand notices and

consequent reminders, defendants failed to pay the

outstanding balance which was due to the plaintiff. On these

set of pleadings, the present suit was filed seeking recovery of

Rs.10,46,826/- with interest at the rate of 24% per annum

from the defendants jointly and severally.

(b)On receipt of summons, the defendants tendered

appearance and filed written statement and stoutly denied the

entire averments made in the plaint. The defendants stoutly

denied the credit invoices on which the plaintiff has sought

recovery and contended that defendants had never signed on

the credit invoices of the plaintiff. The present suit is filed

with an oblique motive to make wrongful gain. The defendants

claimed that there is no cause of action to file the present suit

and that they are not liable to pay any dues to the plaintiff and

hence, sought for dismissal of the suit.

(c)Based on the pleadings, the trial Court framed the

following issues:

"1. Whether plaintiff proves that defendant is due in a sum of Rs.10,46,826/- towards supply of paper and paper articles as claimed in para-2 of the plaint?

2. Whether plaintiff is entitled for interest if so at what rate?

3. Whether plaintiff is entitled for decree as prayed for?

4. What order/decree?"

(d)The plaintiff firm in support of its case examined its

power of attorney holder as P.W.1 and to corroborate its claim

adduced documentary evidence vide Exs.P1 to 16. The

defendants to counter the claim of the plaintiff by way of

rebuttal evidence let in ocular evidence of its Proprietor as

D.W.1 and adduced documentary evidence vide Exs.D1 to 3.

(e)The Trial Court having assessed the oral and

documentary evidence answered issue No.1 partly in the

affirmative by holding that plaintiff has failed to prove the

transaction under invoice No.B383/14-15 and therefore, the

claim of plaintiff-company insofar as the amount of

Rs.2,94,566/- is concerned, the same was negatived and the

suit came to be dismissed. Insofar as invoice bearing

No.B407/14-15 is concerned, the Trial Court was of the view

that the plaintiff by producing cogent and clinching evidence

has succeeded in establishing that the plaintiff had supplied

materials worth Rs.5,98,039/- and therefore the learned trial

Judge has come to the conclusion that the defendants are

liable to pay an amount of Rs.5,98,039/- towards supply of

materials under invoice No.B407/14-15.

(f)It is against the decreetal amount of Rs.5,98,039/-,

the defendants are before this Court.

4. The learned counsel appearing for the defendants

would vehemently argue and contend before this Court that

he has already made payment of the amount claimed under

invoice No.B407/14-15. The defendants had issued a cheque

bearing No.011488 dated 20.6.2014 drawn on M/s.Shamarao

Vittal Co-Operative Bank Limited for a sum of Rs.2,50,000/-.

Placing reliance on Ex.D1, the counsel would submit that the

cheque was cleared and the same is evident from the bank

statement as per Ex.D1 which clearly demonstrates that a sum

of Rs.2,50,000/- was credited to the account of the plaintiff

company and this clinching evidence is ignored by the Trial

Court, which has resulted in miscarriage of justice. He would

seriously dispute and contend that the materials that were

supplied under invoice No.B407/14-15 were infact returned to

the plaintiff and the materials returned to plaintiff was to the

tune of Rs.2,24,430/- and this fact is reflected in Ex.P12 which

clearly indicates that plaintiff had accepted the same through

credit Note bearing No.107/2014-15. The learned counsel

would further contend that insofar as the remaining sum of

Rs.1,23,609/-, the same was paid by cash and the said

payment is substantiated during trial by defendants, which is

not taken into consideration by the learned trial Judge.

Therefore, he would contend that the findings recorded by the

trial Court on issue Nos.1 and 2 is contrary to the clinching

evidence on record and therefore, warrants interference.

The learned counsel for the defendants would further

contend that payments made as per Ex.D1 to the tune of

Rs.2,50,000/- and Rs.12,103/- are not at all seriously

disputed and these material aspects are not at all properly

appreciated by the learned trial Judge. The second limb of

argument advanced by the learned counsel for the defendants

is that the entire proceedings stand vitiated as P.W.1 who has

prosecuted the suit had no authorisation under the General

Power of Attorney. Referring to the GPA, the learned counsel

for defendants would contend that the authorisation was never

placed before the plaintiff-firm's Board and no resolution came

to be passed authorising P.W.1 to prosecute the suit.

Therefore, he would submit that the plaint is a defective plaint

and the entire proceedings stand vitiated for want of

authorisation. Taking this Court to the recitals in the General

Power of Attorney, the learned counsel would submit that the

authorisation was given to P.W.1 to initiate recovery

proceedings against one M/s.Select Marketing Private Limited

and therefore, the authorisation was confined only to initiate

recovery proceedings against the above said company and

would contend that based on the above authorisation, the GPA

holder could not have initiated recovery proceedings against

the present defendants. On these set of grounds, he would

submit that the suit is even otherwise liable to be dismissed

on this count also.

5. Per contra, the learned counsel for the plaintiff

repelling the contentions canvassed by the learned counsel for

the defendants would support the reasoning and conclusions

arrived at by the Trial Court and supporting the findings

recorded by the learned trial Judge, she would submit that the

contention of the defendants that they have repaid the entire

amount is in absence of rebuttal evidence let in by them. She

would submit that the defendants have admitted in

unequivocal terms that plaintiff-company has supplied the

materials under Ex.P3 and having admitted the supply of

materials worth Rs.5,98,039/- it was incumbent on the part of

the defendants to produce cogent and clinching evidence

indicating that the entire amount under invoice

No.B407/2014-15 was repaid and having failed to produce

documentary evidence, she would submit that the Trial Court

placing reliance on cogent and clinching evidence let in by the

plaintiff was justified in decreeing the suit and therefore, she

would contend that the judgment and decree rendered by the

learned trial Judge is based on legal evidence adduced by the

plaintiff. To counter the alleged payments made by the

defendants to the tune of Rs.2,50,000/- and allegations that

plaintiff has admitted the same in para(2), counsel appearing

for the plaintiff, would take this Court to Exs.P4 to 6, P9 and

P11 and contend that the payment which is admitted by the

plaintiff at Para(6) refers to the transactions bearing Invoice

No.B383/14-15 and under the said invoice the defendants

were due and accordingly, the partial payment which was

made by them was adjusted towards the transaction under

invoice No.B383/14-15. She would further contend that the

plaintiff had issued a legal notice as per Ex.P4 calling upon the

defendants to pay balance amount pending with a specific

contention that the said amount is pending beyond the credit

period of 30 days. Inspite of receipt of notice, the defendants

have not chosen to reply. She would further contend that two

reminders were also issued to the defendants as per Exs.P5

and P6 and inspite of the same, the defendants have failed to

pay the balance amount and therefore, these documents

coupled with Ex.P12 clearly establishes that the defendants

have failed to repay the amount towards supply of materials

under Invoice No.B407/14-15. On these set of grounds, she

would submit that the judgment and decree of the trial Court

is in accordance with law and the same does not suffer from

infirmities and therefore, requests this Court to dismiss the

appeal.

6. Heard the learned counsel for the plaintiff and the

learned counsel for the defendants and perused the trial Court

records.

7. The following points would arise for consideration

before this Court:

"(a)Whether the trial Court was justified in holding that the plaintiff is entitled to recover a sum of Rs.5,98,039/- in respect of supply of materials covered under Invoice No.B407/14- 15?

(b)Whether the contention of defendants that defendants have repaid the entire amount which was due under Invoice No.B407/14-15 is substantiated?

(c)Whether the contention of the

defendants that the present suit in the present form for want of authorisation in favour of GPA holder can be acceded to in the absence of pleadings to that effect in the written statement as well as in the absence of grounds urged in the appeal memo?"

8. Regarding Points 1 and 2:

The plaintiff has filed the present suit by specifically

contending that under Invoice No.B407/14-15 the plaintiff's

company has supplied materials worth Rs.5,98,039/- and the

said amount which is due is not paid by the defendants inspite

of notice and consequent two reminders. To substantiate its

claim, plaintiff has produced the invoice at Ex.P3. On perusal

of the said invoice, this Court would find that the plaintiff has

supplied materials worth Rs.5,63,771/- and therefore,

including the delivery charges with additional VAT payable at

5.5% and invoice is raised for Rs.5,98,039/-. Demanding the

said amount, the plaintiff has issued a legal notice dated

15.10.2016 (Ex.P13) calling upon the defendants to pay the

amount due under Invoice No.B-407/2014-15. Reminders are

also issued by the plaintiff-company as per Exs.P4 to 6 as well

as Exs.P9 to 11. It is not in dispute that the defendants

though served with these notices have not chosen to give

reply. Therefore, this Court wound find that, at the first

instance itself, there is no specific denial by the defendants by

issuing the reply notice. Therefore, an adverse inference has

to be drawn against the defendants who have failed to deny

the claim of the plaintiff at the earliest point of time when they

were served with demand notices calling upon them to pay the

balance amount of Rs.2,66,611/- under Invoice bearing No.B-

407/2014-15. It is in this background, the plaintiff was

compelled to file the present suit seeking recovery. On

perusal of written statement which is filed on 31.5.2017, this

Court would find that there is absolutely no whisper by the

defendants in regard to the repayment made to the tune of

Rs.2,50,000/- and Rs.12,103/- towards the transaction

covered under Invoice No.407/14-15. Even during trial, while

cross-examining the plaintiff, the defendants have not at all

specifically stated nor the plaintiff has confronted with these

documents by suggesting that a sum of Rs.2,50,000/- and

Rs.12,103/- paid under Ex.D1 was towards payment covering

the transaction under Invoice No.B-407/14-15. Even in the

examination-in-chief, the defendants have not at all whispered

about the alleged payment of Rs.2,50,000/- and Rs.12,103/-

towards the amount due under Invoice No.407/14-15. In the

cross-examination, plaintiff has succeeded in eliciting that he

has received materials under Ex.P3. The defendants have also

admitted in an unequivocal terms that they are in receipt of

demand notices sent to them as per Exs.P4, 6 and Exs.P9 and

11. The defendants have also admitted in unequivocal terms

that they have not issued any reply to the impugned demand

notices. They have clearly admitted the receipt of legal notice

issued as per Ex.P13. The further cross-examination of

D.W.1, which is conducted on 27.5.2019 would clinch the

issue and virtually put to rest the controversy in regard to

dues payable to the tune of Rs.5,98,039/- under Invoice No.B-

407/14-15. They have admitted in unequivocal terms that the

materials worth Rs.5,98,039/- was supplied to the defendants.

Further what is voluntarily stated by the defendants is that the

amount is paid on 24.6.2014 through cheque bearing

No.11488. They have also stated that balance amount of

Rs.1,23,609/- was paid by cash. If the supply of material by

the plaintiff's firm is admitted by defendants, then it was

incumbent on the part of the defendants to discharge their

burden by producing relevant documents indicating payment

made towards invoice No.B407. On perusal of the rebuttal

evidence, this Court would find that the defendants have failed

to place on record the clinching evidence indicating payment

towards the transaction under Invoice No.407. In that view of

the matter, the clinching evidence let in by the plaintiff has

gone unchallenged and in the absence of rebuttal evidence,

the claim made by the plaintiff has to be upheld. Therefore,

the points 1 and 2 formulated by this Court has to be

answered in the affirmative.

9. Regarding Point No.3:

The second limb of argument canvassed by the learned

counsel for the defendants before this Court is that the plaint

itself is defective for want of authorisation. The defendants

have taken serious objection that P.W.1 who has prosecuted

the suit on behalf of plaintiff-company was not at all

authorised to prosecute the present suit and therefore, he

would submit that the suit is liable to be dismissed. This

contention cannot be acceded to. I have perused the power of

attorney which is produced at Ex.P1. Though Para(1) refers to

initiation of recovery proceedings against one M/s. Select

Marketing Pvt. Ltd., however, the preceding paragraph also

indicates that the authorisation was given by the plaintiff-

company to initiate proceedings even against others. The word

'others' used in Paragraph (1) has to be given wider import.

Therefore, I am of the view that P.W.1 who has prosecuted

the suit is the GPA holder. Therefore, in the absence of

defence in the written statement and the grounds urged in the

memorandum of appeal, I am of the view that such contention

cannot be acceded to. Accordingly, point No.3 formulated by

this Court is answered in the affirmative.

10. For the foregoing reasons, this Court having

independently assessed the pleadings, oral and documentary

evidence would affirm the findings recorded by the Court

below on Issue Nos.1 to 3. This Court is of the view that the

Trial Court was justified in holding that plaintiff is entitled to

recover a sum of Rs.5,98,039/- in respect of supply of

materials covered under Invoice No.B407/14-15. The Trial

Court having meticulously examined the pleadings in the

written statement and in absence of documentary evidence

was justified in holding that defendants have failed to prove

that the entire amount due under invoice No.B407/14-15

was paid. The judgment and decree of the Trial Court is based

on legal evidence adduced by plaintiff and does not suffer from

any infirmities or any illegalities. On re-appreciation, no error

is found in the judgment under challenge.

11. In the result, the appeal is devoid of merits and is

accordingly, dismissed.

Sd/-

JUDGE

*alb/-