Karnataka High Court
Sri B Surendra Shiyal vs The Managing Director on 28 October, 2024
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RFA No.1821/2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
REGULAR FIRST APPEAL NO.1821/2010 (MON)
BETWEEN:
SRI. B. SURENDRA SHIYAL
S/O LATE BAWARILAL
AGED ABOUT 40 YEARS
PROPRIETOR OF MANAS ELECTRIC
COMPANY NO.21,
Digitally signed VENKATESHWARA COMPLEX
by RUPA V BVK IYENGAR ROAD CROSS
Location: HIGH A.M. LANE, BANGALORE-560053.
COURT OF
KARNATAKA ...APPELLANT
(BY SRI. VITTALA SHETTY P. ADV.,)
AND:
THE MANAGING DIRECTOR
M.S. RAMAIAH HOSPITAL
MSRIT POST, BANGALORE-560054.
...RESPONDENT
(BY SRI. S. RAJENDRA, ADV., FOR
SRI. S.V. PRAKASH, ADV.,)
THIS RFA IS FILED UNDER ORDER XLI RULE 1 R/W
SEC.96 OF CPC., PRAYING TO PASS JUDGMENT AND DECRE BY
SETTING ASIDE THE JUDGMENT AND DECREE DATED
13.09.2010, PASSED BY THE LEARNED XX ADDL. CITY CIVIL
JUDGE, BANGALORE CITY (CCH-32) IN O.S.NO.4151/2008 AND
TO CONSEQUENTLY DECREE THE SUIT INSTITUTED BY THE
APPELLANT. AWARD COST AND GRANT SUCH OTHER RELIEFS
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RFA No.1821/2010
AS THIS HON'BLE COURT DEEMS FIT AND EXPEDIENT IN THE
CIRCUMSTANCE OF THE CASE, IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL JUDGMENT
This regular first appeal is filed under Order XLI Rule 1
read with Section 96 of the Code of Civil Procedure, 1908, by
the plaintiff challenging the judgment and decree dated
13.09.2010 passed in O.S.No.4151/2008 by the 20th Addl. City
Civil and Sessions Judge, Bengaluru city wherein the suit of the
plaintiff for recovery of a sum of Rs.2,41,332/- with interest at
the rate of 18% p.a. came to be dismissed.
2. The parties are referred to as per their ranking
before the Trial Court.
3. The appellant / plaintiff has filed a suit in
O.S.No.4151/2008 seeking prayer for a decree for a sum of
Rs.2,41,332/- along with interest at the rate of 18% p.a. and
cost of the suit. It was averred that the plaintiff is the
proprietor and dealer of all electrical, domestic and industrial
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needs, carrying on his business at No.21, Venkateshwara
Complex, BVK Iyengar Road Cross, A.M.Lane, Bengaluru and
the defendant is the one of the regular customers who used to
place purchase orders for electrical items on credit basis. It
was further averred that the defendant had purchased electrical
items from 25.11.2003 to 26.04.2008 worth Rs.1,91,326/- out
of which, the defendant had paid Rs.13,876/- keeping a sum of
Rs.1,77,450/- as balance which was unpaid. It was also
averred that the plaintiff had maintained regular account of the
defendant which reflected various transactions between the
plaintiff and the defendant from 25.11.2003 to 26.04.2008. It
was pleaded that though several requests were made and
reminders were sent, the defendant failed to pay the balance
amount which compelled the plaintiff to issue legal notice on
24.05.2007 calling upon the defendant to pay the balance
amount. The transaction between the plaintiff and the
defendant being a commercial transaction, the defendant is
liable to pay the interest at the rate of 18% p.a. from the date
the amount becomes due till its realization. It was further
pleaded that the defendant sent an untenable reply on
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25.07.2007 which compelled the plaintiff to file a suit for
recovery of money.
4. The defendant, on service of notice entered
appearance and filed written statement. The defendant has
averred that there was no Managing Director in the defendant -
Hospital and the suit was filed describing wrong defendant in
the cause title is liable to be rejected. The defendant denied
that they were the regular customers of the plaintiff, had
purchased electrical items on credit basis from time to time and
had maintained a running account. The claim of the plaintiff
that the defendant had purchased items from 25.11.2003 to
26.04.2008 worth Rs.1,91,326/-, out of which Rs.13,876/- was
paid and there was balance of Rs.1,77,450/-, was denied by
the defendant. It was averred that the plaintiff did not
maintain correct account and claim of the plaintiff is baseless.
They admitted the receipt of legal notice and stated that a
legally tenable reply was sent to the plaintiff with regard to the
dues. It was further averred that the claim of the plaintiff was
absolutely false, untenable and without any basis. It was also
averred that there was no written contract between the plaintiff
and defendant and hence, claim of interest at the rate of
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18% p.a. was wholly unsustainable in law and the defendant
was not liable to pay the same. It was pleaded that the
documents produced by the plaintiff along with plaint and the
amount shown as due from the defendant does not relate to
the defendant - hospital and the plaintiff did not produce the
invoices and purchase orders to prove that the defendant is
liable to pay the suit claim. It was further pleaded that the
defendant - hospital used to purchase the items required only
on purchase orders and invoices and the present claim of the
plaintiff is without any basis and neither purchase orders nor
invoices were produced. It was also pleaded that the
defendant - hospital and the transaction made by it were in
conformity with the provision of law and the defendant
produced the documents which show that the purchased items
from the plaintiff and the payments made to such items. It
was pleaded that the documents produced by the plaintiff does
not bear the name of the officer / authorized agent of the
defendant for having purchased the items. Therefore, in the
absence of any authenticated document, it cannot be said that
the defendant was due to the plaintiff as claimed by the
plaintiff. They sought for dismissal of the suit.
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5. The Trial Court, based on the pleadings, framed the
following issues:
"1. Whether the plaintiff proves that the defendant
had purchased the electrical items from
25.11.2003 to 26.04.2008 to the extent of
Rs.1,91,326/-?.
2. Whether the plaintiff further proves that the
defendant has made payment of Rs.13,876/- and
is due a sum of Rs.1,77,450/-?
3. Whether the plaintiff proves that he is entitled
interest of Rs.63,882/-?
4. What order or decree?"
6. The Trial Court recorded the evidence of the
parties. The plaintiff examined himself as PW-1 and got
marked Exs.P1 to P102. The defendant examined one Devraj
as DW-1 and got marked Exs.D1 to D27. The Trial Court, on
appreciation of the pleadings and evidence, recorded the
finding that the defendant has made payment to the plaintiff
for whatever materials were supplied by the plaintiff to them.
Therefore, the defendant is not liable to pay any amount to the
plaintiff and the plaintiff failed to prove that the defendant is
liable to pay Rs.1,77,450/- as on the date of the suit and
accordingly, dismissed the suit of the plaintiff.
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7. I have heard the learned counsel appearing for the
plaintiff and the learned counsel appearing for the respondent.
8. Sri.Vittala Shetty, learned counsel appearing for the
appellant submits that the Trial Court committed grave error in
recording the finding that the plaintiff failed to prove the
liability of the defendant and the said finding is contrary to the
evidence available on record. It is submitted that the
proprietor of the plaintiff has deposed before the Trial Court
with regard to the transactions between the plaintiff and the
defendant from 25.11.2003 to 26.04.2008, produced invoices,
delivery challans and statement of account / ledger to prove
that the plaintiff delivered the electrical goods as per the
purchase orders. Exs.P1 to P64 are the invoices for having
supplied the goods to the defendant, Exs.P66 to P84 and
Exs.P87 to P102 are the delivery challans for having supplied
the goods and acknowledgement for receipt of goods by the
defendant. The entire ledger account and the extract
maintained by the plaintiff is produced at Ex.P65 which
indicates that the plaintiff delivered the electrical goods as per
the orders of the defendant and the said goods were received
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by the defendant. But, though the defendant made payment of
Rs.13,876/-, however, the defendant is still due in a sum of
Rs.1,77,450/- as on the date of filing of the suit and the Trial
Court failed to appreciate the oral evidence of DW-1 and
documentary evidence which resulted in dismissal of the suit.
It is further submitted that PW-1, in his cross-examination
admitted that the defendant used to purchase electrical items
from the plaintiff and also admitted the acknowledgement for
having received the goods. By comparing the invoices with the
delivery challans, it clearly indicates that the defendant are in
due for a sum of Rs.1,77,450/- as on the date of filing of the
suit and also the defendant is liable to pay interest at the rate
of 18% p.a. on the said amount till the amount is realized. He
seeks to allow the appeal.
9. Per contra, Sri.S.Rajendra, learned counsel
appearing for Sri.S.V.Prakash, learned counsel for the
respondent supports the impugned judgment and award of the
Trial Court and submits that the Trial Court recorded a clear
finding that the plaintiff failed to prove that he has supplied the
goods worth Rs.1,91,326/- and further failed to prove that the
defendant herein paid Rs.13,876/- and balance of
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Rs.1,77,450/- is due from the defendant. It is submitted that
the invoices produced by the plaintiff at Exs.P1 to P64 do not
tally with the delivery challans at Exs.P66 to P84 and they
pertain to some Institution which has been clearly deposed by
DW-1 in his evidence. Hence, the Trial Court has rightly come
to the conclusion that the plaintiff failed to prove that it has
supplied the goods to the defendant as per the invoices and the
defendant did not make payment and dismissed the suit. The
said finding of the Trial Court is based on the evidence available
on record and does not call for any interference in the appeal.
He therefore seeks to dismiss the appeal.
10. I have heard the arguments of the learned counsel
for the appellant, learned counsel for the respondent and
perused the material available on record including the Trial
Court records. The plaintiff / appellant filed a suit for recovery
of money of a sum of Rs.2,41,332/- along with interest at the
rate of 18% p.a. It is the case of the plaintiff that the
defendant herein purchased electrical items from the plaintiff
from 25.11.2003 to 26.04.2008 worth Rs.1,91,326/- and out of
the said amount, the defendant paid a sum of Rs.13,876/- and
still the defendant is liable to pay a sum of Rs.1,77,450/- along
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with interest. To prove the said claim, the plaintiff entered the
witness box and reiterated the averments made in the plaint.
The said witness has been cross-examined at length. In the
cross-examination, PW-1 admitted that the defendant used to
give purchase orders in writing in the format of the defendant.
He further deposed that some time he used to give oral
purchase orders also and one person by name Janardhan used
to place the purchase orders but now he has left the services of
the office of the defendant. On such purchase orders, he used
to raise invoices, deliver the goods and take signature on the
delivery challans. PW-1, in his cross-examination admitted that
M.S.Ramaiah Hospital used to make payment through Cheques.
PW-1 denied other suggestions put to him by the learned
counsel for the defendant. From the co-joint reading of the
evidence of PW-1, with pleadings, it is evident that the
defendant used to place the purchase orders with the plaintiff
and the defendant used to make payment for such purchase
orders by way of Cheque. The plaintiff has produced invoices
at Exs.P1 to P64, ledger extract of the account of the defendant
maintained by the plaintiff at Ex.P65, delivery challans at
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Exs.P66 to P84 and Exs.P87 to 102, legal notice and reply to
the legal notice at Exs.P85 and 86.
11. The defendant, to disprove the claim of the plaintiff
examined DW-1 One Devraj, Incharge store keeper of the
defendant - Hospital and got marked Exs.D1 to D27. Exs.D1 to
D25 are the purchase orders placed by the defendant with the
plaintiff, Ex.D26 is the authorization letter issued by the
defendant - Hospital to DW1 and Ex.D27 is the ledger extract.
It is the case of the defendant that the defendant used to place
the purchase orders with the plaintiff, those purchase orders
are produced at Exs.D1 to D25 and for all purchase orders
maintained by the defendant, payments are made by the
defendant as is evident from Ex.D27. On perusal of the
invoices produced by the plaintiff at Exs.P1 to P64, delivery
challans at Exs.P66 to P84 and Exs.P87 to P102, ledger extract
of account of the defendant maintained by the plaintiff at
Ex.P65, it is evident that the plaintiff did not produce the
delivery challan for having delivered the goods to the defendant
to each of the invoices produced by him. More particularly, for
the invoices produced at Exs.P1 to P34, P38, P54 to P56 and
P58 to P64, the plaintiff did not produce any delivery challan for
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having delivered the goods to the defendant. Hence, those
invoices cannot be the basis to claim the amount from the
defendant. Therefore, the plaintiff failed to prove that he has
delivered the goods which are mentioned in the invoices at
Ex.P1 to P34, P38, P54 to P56 and P58 to P64. DW-1, in his
cross-examination has deposed that there are 13 institutions.
The aforementioned exhibits may be pertaining to other
institutions. However, those exhibits cannot be the basis for
any claim against the defendant herein.
12. The plaintiff has produced invoices at Exs.P35 to
P37, P39 to P53 and P57. For all these invoices, the plaintiff
has produced the delivery challans which corresponds with the
invoices and the delivery challans are marked as Exs.P66 to
P84 which show that the goods were delivered to the plaintiff.
Even DW-1, in the cross-examination admitted the said fact. I
have compared Exs.P35 to P37, P39 to P53 and P57 with the
delivery challans at Exs.P66 to P84 and with the ledger extract
at Ex.D27 produced by the defendant which clearly indicates
that the plaintiff has received the payments to the said
invoices. Hence, any claim to the aforesaid invoices by the
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plaintiff is without any basis and the Trial Court has rightly
rejected the same.
13. The plaintiff has produced the delivery challans
from Exs.P87 to P102. However, he has not produced
corresponding invoices for the said delivery challans. Hence,
the plaintiff failed to prove that he has delivered the goods as
referred to Exs.P87 to P102, in the absence of any invoices.
The delivery challans at Exs.P87 to P102 also indicate that they
are not pertaining to the defendant herein. DW-1, in his
evidence has clearly deposed that there are 13 institutions and
each institution is a different entity. Hence, Exs.P87 to P102
would not help the plaintiff.
14. The Trial Court has recorded a clear finding that the
plaintiff failed to produce the delivery orders, invoices and
corresponding delivery challans to claim the amount from the
defendant. It has further recorded a finding that the defendant
has made payment of Rs.53,311/- after filing of the suit.
However, the statement maintained by the plaintiff does not
reflect the said amount and the said finding of the Trial Court is
based on the oral testimony of PW-1 and DW-1. Hence, the
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accounts maintained by the plaintiff cannot be believed. The
invoices produced by the plaintiff neither tallies with the ledger
extract maintained by the plaintiff at Ex.P65 nor with the
delivery challans produced at Exs.P87 to P102. Hence, on
appreciation of pleadings and evidence on record, I am of the
considered view that the plaintiff failed to prove that the
defendant placed the orders as claimed by the plaintiff in the
plaint and he further failed to prove that he has raised the
invoices for such delivery and for having delivered the goods.
In the absence of any legally acceptable evidence on record to
come to the conclusion that the defendant is liable to pay a
sum of Rs.1,77,450/- as claimed by the plaintiff with interest,
no relief can be granted to the plaintiff. The Trial Court has
recorded a detailed finding with regard to the prayer of the
plaintiff and dismissed the suit. The said finding of the Trial
Court is based on the evidence available on record and is are
neither perverse nor contrary to the evidence on record calling
for interference in the present appeal.
15. For the aforementioned reasons, the appeal is
devoid of merits and is rejected accordingly.
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16. The Trial Court records to be returned to the Trial
Court forthwith.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
RV
