Madhya Pradesh High Court
M/S C.R.Virmani & Co. & Ors. vs M/S Shaw Wallace & Co. on 16 August, 2023
Author: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
FIRST APPEAL No. 296 of 1998
BETWEEN:-
1. M/S C.R.VIRMANI & CO. & ORS. (CHHATTISGARH)
ASHWIN S/O TILAKRAJ SETHI S/O TILAKRAJ
2. SETHI, AGED ABOUT 35 YEARS, OCCUPATION:
BUSINESS CIVIL LINES RAIPUR (CHHATTISGARH)
.....APPELLANTS
(SHRI AMIT AGRAWAL SENIOR ADVOCATE ALONG WITH SHRI ARJUN
AGRAWAL, ADVOCATE)
AND
1. M/S SHAW WALLACE & CO. (WEST BENGAL)
KU. MEENA W/O ATUL BHASIN W/O ATL BHASIN
OCCUPATION: HOUSE WORK CIVIL LINES,
2.
RAIPUR, AT PRESENT RESIDING AT 3/24, SHANTI
NIKETAN NEW DELHI (DELHI)
SMT. NEERA VIRMANI W/O ANURAG VIRMANI
W/O ANURAG VIRMANI OCCUPATION: HOUSE
3.
WORK B/02, CHANDRA NAGAR, AGRA-BOMBAY
ROAD INDORE (MADHYA PRADESH)
SMT. SUNITA SETHI W/O BIPIN SETHI W/O BIPIN
SETHI OCCUPATION: HOUSE HOLD WORK 20
4.
SUKH JEEVAN COLONY, NAGPUR
(MAHARASHTRA)
SMT. SUNITA SETHI W/O BIPIN SETHI W/O BIPIN
5. SETHI OCCUPATION: HOUSE WORK 20 SUKH
JEEVAN COLONY, NAGPUR (MAHARASHTRA)
.....RESPONDENTS
(SHRI AJAY VYAS, ADVOCATE)
RESERVED ON : 12.06.2023
PRONOUNCED ON : 16.08.2023
This appeal coming on for judgement this day, the court passed the
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 18-Aug-23
11:04:17 AM
2
following:
JUDGEMENT
This first appeal has been preferred by the
appellants/defendants no.1, 2 and 3 under Section 96 of the Code of
Civil Procedure 1908 against the judgment and decree dated
24.04.1998, passed in C.S.No.3-B/96 by the learned District Judge
Dhar, whereby, the suit of the plaintiff/respondent no.1 has been
decreed for Rs.54,34,095/- along with interest @ of 18% per annum
from the date of the suit till realisation.
2. In brief, the facts of the case are that the plaintiff M/s. Shaw
Wallace and Co.Ltd have filed the aforesaid suit for recovery of
Rs.54,34,095/- along with interest against the defendants. The case of
the plaintiff is that the plaintiff is a Company registered under the
Companies Act, 1956 having its registered office at Calcutta, and is
engaged in the business of manufacturing Indian made Foreign liquor
(in short, IMFL) and also to sell the same. The company has regional
offices in various parts of the country including Indore, in the State
of Madhya Pradesh.
3. According to the plaintiff, defendant no.1 is a registered
partnership firm, placed at Raipur whereas other defendants are its
partners. Between the plaintiff and defendants, the transaction of sale
and purchase of the liquor is going on since last many years and the
defendant no.1/firm, after obtaining the permit from the Excise
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 18-Aug-23
11:04:17 AM
Officer, Raipur used to send it to the plaintiff's go-down at village
Ekladuna, District Dhar, and based on the permit issued by the
District Excise Officer, District Dhar, the liquor was purchased at
Ekladuna District Dhar and transported to various parts of India as
required by the defendants.
4. According to the plaintiff, defendant no.1/firm had purchased
liquor from 03.04.1996 to 06.03.1995 through various invoices. The
liquor was supplied to defendant no.1/firm at Ekladuna District Dhar
but defendant no.1 had paid only Rs.2,78,605/- out of the total
amount of Rs.47,82,175 which was due, and according to the terms
and conditions of the agreement between the parties, if the amount is
not paid within one month, the plaintiff would be entitled to pay
interest @ of 18% per annum on the amount due.
5. It is further the case of the plaintiff that the defendant no.1/firm
vide its letter Ex.P/51 dated 10.07.1995, had accepted the dues of
Rs.44,98,429/- to its regional manager but it was not correct and
despite intimation to them the aforesaid error was not corrected by
them. Thus, after a notice was served on defendant no.1/firm, the suit
has been filed for the recovery of Rs.47,82,175/- with interest of
Rs.6,52,420/- and other expenses.
6. The suit has been contested by the defendant/firm by filing its
written statement traversing the averments made in the plaint. It is
stated that along with the plaint no chart has been produced by the
plaintiff regarding non-payment of the amount of Rs. 47,82,175/-,
and there was no agreement between the parties regarding the interest
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 18-Aug-23
11:04:17 AM
also. It is also stated that the amount was not to be paid at the Indore
Office of the company. It was also stated that the Dhar Court has no
jurisdiction to try the suit as the cause of action, if any, arose only at
Raipur. It was also stated that defendant no.1 never had any branch at
Indore, and the plaintiff/company, after receiving the purchase order
used to deliver the goods to defendant no.1 /firm at Raipur only. It
was also denied that any admission was made in respect of the
amount due.
7. The learned judge of the trial Court, after framing the issues
and recording the evidence, has decreed the suit in favour of the
plaintiff vide its judgment and decree dated 24.04.1998, and being
aggrieved, the instant appeal has been preferred by the Appellant.
8. It is also submitted that the imposition of interest @ 18% per
annum in case of delayed payment also does not arise for the reason
that there was no such condition agreed between the parties.
9. Shri Agrawal has also stressed upon the fact that the learned
Judge of the trial Court has erred in exercising its jurisdiction despite
the fact that Dhar Court had no territorial jurisdiction to entertain the
suit. It is submitted that the plaintiff has miserably failed to prove
that the Dhar Court had jurisdiction whereas the defendant, in its
written statement itself has clearly stated that the cause of action
arose at Raipur, as the goods were delivered at Raipur, and the
defendant No.1 did not have any representative at Ekalduna, Dhar,
therefore, no delivery was taken at Dhar. In this regard, the attention
of this Court was also drawn to the deposition of PW/1 A.R.
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 18-Aug-23
11:04:17 AM
Sonwane, in para 49 of which, he has also been suggested that the
goods were sold with the condition of delivery at Raipur. The
attention of this Court was also drawn to Exhibit P/6, P/11, P/15,
P/19, P/22, P/28, P/33, P/37 and P/41 to state that this witness PW/1
has also admitted that in para 50 of his deposition that as per the
invoices, the freight for transportation of goods was paid by the
plaintiff only. PW/1 in para 58 has also accepted the credit notes
mentioned in ledger extract Exhibit P/50C which may have been
issued in lieu of damages during transit, however, neither any credit
note was produced nor any further evidence was produced by the
plaintiff.
10. Learned senior counsel has also referred to the deposition of
DW/1 who has stated in para 6 that payment and delivery all were
taken at Raipur only, and in para 19, he has also stated that during the
cross examination that goods were received by trucks and goods was
received by Ashvin Sethi at Raipur which mean that the cause of
action arose at Raipur only. It is also submitted that the reliance
placed by the plaintiff in the case of Mukundi Lal v. Nur Elahi
Abdul Ali reported as AIR 1934 Lahore 44 was totally
distinguishable as the parties were based in Delhi and Nasik and
goods were to be sent by rail from Delhi i.e. FOR (Free on Rails).
Learned counsel has also referred to the Halsbury's Law of England
4th Edition (Vol. 41) at 800, para 940 to define free on rails, and in
support of his submission, he has also relied upon the decision
rendered by the Calcutta High Court in the case of Girija Proshad
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 18-Aug-23
11:04:17 AM
Pal Vs. National Coal Co. Ltd. reported as AIR 1949 Cal 472 para
11 which reads as under:-
"The words f.o.r. are well known words in commercial
contracts. In my judgement they mean when used to qualify
the place of delivery that the seller's liability is to place the
goods free on the rail as the place of delivery. Once that is
done the risk belongs to the buyer."
11. It is submitted that as in the present case, the delivery of goods
by seller/plaintiff to buyer/defendants were not agreed to be made
FOR Dhar, hence the judgement of Mukandi Lal (supra) does not
apply.
12. Similarly, it is also submitted that the other decision relied
upon by the plaintiff in the case of G. Venkatesh Bhat Vs. Kamlapat
Motilal reported as AIR 1957 Madras 201 is also distinguishable as
in that case, the goods was never delivered. So far as the making of
the payment is concerned, it is submitted that in para 6 of the plaint,
it is clearly stated by the plaintiff that the defendants were required to
make the payment at the area office of the plaintiff at 8-B, Archana
Apartment, Ratlam Kothi, Indore. Thus, it is submitted that by no
stretch of imagination, it can be said that the Dhar Court had any
jurisdiction to try the suit when the goods were delivered at Raipur
and the payments were required to be made at Indore.
13. Similarly, it is also stated that the reliance placed by the
plaintiff in the case of Marwar Tent Factory vs. Union of India
reported as (1990) 1 SCC 71 is also distinguishable for the reason
that in that case also, the goods were delivered by FOR Jodhpur.
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 18-Aug-23
11:04:17 AM
Learned counsel has also submitted that the finding recorded by the
trial Court in para 17, 18, 19, 20 and 26 that delivery to the carrier at
Ekaladuna, District Dhar was at buyer's risk as per the MTRs Ex.P/4,
P/8, P/14, P/18, P/21, P/24, P/29, P/34, P/38 and P/42 is perverse as
these MTRs do not mention buyer's risk rather mention at owner's
risk and the trial Court has not gone into the question as to who was
the owner of the goods when the goods were delivered at the carrier
at Ekalduna Dhar, and since PW/1, in para 50 and 58 has also
admitted that as per the invoices, freight was paid by the
plaintiff/seller and in the ledger Ex.P/50C, the credit notes 'CN'
mentioned may have been issued for damages during the transit, this
evidence clearly disproves the finding given in para 19 and 20 of the
judgement that goods were transported at buyer's risk. In support of
his submissions, Shri Agrawal has also referred to Section 39 and 51
of the Sale of Goods Act, 1930 which refer to delivery to carrier or
wharfinger and duration of transit. Amongst others, the reliance is
also place on a constitutional Bench decision of the Supreme Court
in the case of Bengal Immunity Co. Ltd. vs. State of Bihar reported
as AIR 1955 SC 661 para 207-210 wherein it is held that the
delivery of goods by the seller to the buyer through carrier is prima
facie deemed to be a delivery of goods to the buyer and it is further
held that this deeming fiction created by the statute is not unlimited
in operation rather is enacted to cater to a situation contemplated by
Section 39(2) of the Sale of Goods Act, 1930 for fixing the liability
either on the seller or on the buyer, as the case may be, if the goods
are lost or damaged in the course of transit while in custody of the
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 18-Aug-23
11:04:17 AM
carrier. Thus, it is submitted that the impugned judgement and decree
being perverse are liable to be set aside. In support of his
submissions, Shri Agrawal has also relied upon the following
decisions/judgements:-
Zena Sorabji and others vs. Mirabelle Hotel Company AIR 1981 Bom. 446
Ishwar Dass Jain vs. Sohan Lal (2000) 1 SCC 434
Mahasay Ganesh Prasad Ray vs. Narendra Nath Sen, AIR 1953 SC 431
S. Manuel Raj and Co. vs. J. Manilal and Co., AIR 1963 Guj. 148
Bhagwanda Goverdhandas Kedia vs. Girdharilal Parshottamdas and co. AIR 1966 SC
T. Linga Gowder vs. State of Madras AIR 1971 Mad 28
Mukundi Lal vs. Nur Elahi Badul Ali, AIR 1934 Lahore 44
Girija Poshad Pal vs. National Coal Co. Ltd. AIR 1949 Cal 472
G. Venkatesha Bhatt vs. Kamlapat Motilal, AIR 1957 Mad 201
Marwar Tent Factory vs. Union of India, (1990) 1 SCC 71 AIR 1990 SC 1753
Bengal Immunity Co. Ltd. vs. State of Bihar AIR 1955 SC 661
Sri Ramkrishna Commiercial Society Ltd. vs. State of Andhra, AIR 1961 AP 86
J.K. Cotton Spg. & Wvg. Mills Ltd. vs. Union of India, 1987 Supp SCC 350
State of Travancore-Cochin vs. Shanmugha Vilas Cashewnut Factory, AIR 1953 SC
Prakash H. Jain, vs. Marie Fernandes, (2003) 8 SCC 431
State of W.B. vs. Sadan K. Bormal, (2004) 6 SCC 59
Raj Kumar Khurana vs. State (NCT of Delhi), (2009) 6 SCC 72
A.B.D. Laminart (P) Ltd. vs. A.P. Agencies (1989) 2 SCC 163
14. On the other hand, Shri Ajay Vyas, learned counsel appearing
for the respondent/plaintiff has opposed the prayer and it is submitted
that no case for interference is made out as the learned Judge of the
trial Court has considered all the aspects of the matter and has passed
the decree. Counsel has also submitted that there is a clear admission
on the part of the defendant regarding the dues as is also proved by
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 18-Aug-23
11:04:17 AM
Ex.P/51. Thus, it cannot be said that the plaintiff has filed a frivolous
case. It is also submitted that the invoices are sufficient to hold that
the goods were delivered at Dhar only at the buyer's risk and the
interest rate as provided in the invoice would also be binding on the
buyer. In support of his submission, Shri Vyas has also relied upon
the decision rendered in the case of M/s. Dura Line India Pvt. Ltd.
vs. M/s. BPL Broadband Network Pvt. Ltd. reported as AIR 2004
Delhi 186.
15. Heard learned counsel for the parties and perused the record.
16. So far as the issue regarding territorial jurisdiction of Dhar Court
to entertain the suit is concerned, it is found that in para 4 of the plaint
the plaintiff has described the procedure through which the liquor was
sold to the defendant, and the prevailing practice was stated to be that
the defendant no.1 used to obtained purchase permits from Excise
Authorities at Raipur, and the same was submitted before Excise
Officer Dhar from where a transport permit was issued and the goods,
i.e., liquor was purchased from the warehouse at Ekalduna District
Dhar, through transport permit and where the goods were delivered to
the buyer i.e., defendant no.1. It is also stated that the defendant no.1
purchased the goods from 3.4.1994 to 6.3.1995, through various
invoices on production of purchase permits, and the goods were
delivered at Ekalduna District Dhar. In para 11 of the plaint it is stated
that since the goods were delivered at Ekalduna, District Dhar to
defendant no.1 under value permit hence, the Dhar Court has a
jurisdiction to try the suit. Whereas in the written statement the
contention of the defendant is that none of its representative ever went
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 18-Aug-23
11:04:17 AM
to Ekalduna, District Dhar to take the delivery of the goods. It is also
stated that if at all any cause of action has arisen to the plaintiff it is
within the territorial jurisdiction of Raipur where the goods have been
received by the defendant, and the amount has also been paid then and
there only. It is also stated that only to show that the said court has
jurisdiction to try the suit, false documents have been prepared. It is
also denied in the written statement that the defendant did not receive
any liquor from 3.4.1994 to 6.3.1995 under various permits. It was also
stated specifically that the plaintiff has not proved or placed on record
any chart which according to the plaint, was filed along with the plaint.
17. So far as the evidence led by the plaintiff in this behalf is
concerned, A.R. Sonawe ( PW-1) has stated that the buyer is required
to take permit from the district in which he intends to carry out the
business and that permit is sent to Excise officer of the seller's district
where the transport permit is prepared and on the basis of that transport
permit the seller sells the liquor and on the that basis only the goods are
taken out of the godown of the seller. It is also stated that sale was done
from the godown of the plaintiff only, and in the invoices proved in this
regard (Ex.P/4 to Ex.P/43) by this witness only, it is also stated that the
liquor is sold as per the Excise Act and the ownership of the seller ends
when he receives transport permit from the purchaser, and the goods are
always sold at the risk of the purchaser only, and in case of any
pilferage during the transportation, the same is the responsibility of the
buyer only, and the seller has no control after the good are taken out of
the godown, and if anything happens to the good during the course of
transportation, the buyer is responsible for the same. In his cross
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 18-Aug-23
11:04:17 AM
examination shri A.R. Sonawe (PW-1) has clearly denied that the entire
goods sold were sold on the condition that it would be delivered at
Raipur only. He has also admitted that the transportation fare was being
paid by the plaintiff company only which was a facility provided to the
defendant by the plaintiff. In para 57 he has admitted that although
there was no specific agreement in this behalf that if any pilferage
occurs during the course of transportation and for that the defendant
would be liable, however in the invoices issued by the company there
was a condition mentioned in this regard. He has also admitted that
there was no separate agreement entered into between the parties
regarding the conditions of invoices as according to him, it was not
necessary. He has also admitted that on the invoices, no signature has
been appended by the defendant. In the considered opinion of this
court, so far as the evidence which has been led by the plaintiff in this
regard is concerned, the plaintiff has produced various invoices of
transportation/goods from Ekalduna to Raipur, except some invoices,
viz., Ex-P-4, P-8,P-14, P-18, P-21 P-24, P-29, P-34, P-38 and P-42
which are of the transporters only, almost all the invoices have the same
conditions printed on them.
18. Shri Amit Agrawal, learned senior counsel for the appellant has
laid much emphasis on the fact that the learned judge of the trial Court
has held that the delivery to the carrier at Ekalduna, District Dhar was
at buyers risk as per the MTRs Ex-P-4, P-8,P-14, P-18, P-21 P-24, P-
29, P-34, P-38 and P-42 which is perverse as the MTRs do not mention
buyer risk rather they mention at owner's risk, thus, it is submitted that
it is a clear perversity on the part of learned judge of the trial Court to
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 18-Aug-23
11:04:17 AM
hold contrary to what is mentioned in the document and it is also
submitted that it is also not determined by the trial Court that as to who
was the owner of the goods when the goods were delivered to the
carrier at Ekalduna Dhar.
19. On close scrutiny of various invoices produced by the plaintiffs
on record this Court finds that in almost all the invoices except the
aforesaid mentioned invoices contain the following condition of sale
the same reads as under:-
"GENERAL TERMS AND CONDITION OF SALE
1. Goods once sold will not be taken back.
2. All prices quoted in the seller's catalogues price lists,
circulars,. Advertisements and/or elsewhere are subject to
change without notice.
3. Interest @ 18% per annum will be charged on
overdue accounts.
4. Only the company's official numbered receipt will be
recognised.
5. All goods are carefully examined before despatch and
no claim will be entertained for breakages, shortages and
ullages. The reason for any loss or damages to or
deterioration of the goods from whatever cause arising or
occurring after the time of despatch thereof from the seller's
premises shall be borne by the buyers.
6. If at any time before delivery to the buyers of all or
any of the said goods a new duty tariff or taxation is imposed
or the rate of duty tariff or taxation then already imposed is
increased by any Government authority by any local
authority or if the railway or road transport freight payable in
respect of the said goods is increased, then in all or any such
cases, the sellers shall recover from the buyers in addition to
and as forming part of the contract price a sum equal to the
amount of such new duty, tariff or taxation , railway or road
transport freight."
20. These invoices have been issued by the plaintiff Shaw Wallace
company limited, whereas, so far as other invoices, viz., Ex-P-4, P-8,P-
14, P-18, P-21 P-24, P-29, P-34, P-38 and P-42 issued by the
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 18-Aug-23
11:04:17 AM
Transporters are concerned, in which it is mentioned that goods are
being transported at owner risk, in considered opinion of this Court, the
aforesaid condition mentioned in these invoices issued by the
transporters is because the transporter has nothing to do with the risk
involved in transportation of the goods, and according to him the goods
are being transported at owner's risk and it is not his concern to know
as to who is owner of the goods. It is also found that defendant has not
led any evidence nor has produced any document on record to
demonstrate that the goods were to be delivered by the plaintiff at
Raipur only, and in such circumstances the finding recorded by the
learned judge of the trial Court that the goods were delivered at
Ekalduna Dhar cannot be said to be perverse in any manner as the
aforesaid conditions mentioned on the back side of the invoice clearly
reveal that the goods were handed over to the defendant immediately
after its despatch from the godown. In this regard condition no.6 is also
significant in which it is mentioned that if at any time, before delivery
to the buyer of all or any of the said goods a new duty, tariff, taxation
etc is imposed by the government in that case the seller shall recover
from the buyer in addition to and as forming part of the contract price, a
sum equal to the amount of such new duty, tariff or taxation railway or
road transport freight. This condition indicates that there was a clear
understanding between the parties that the goods were to be considered
as sold soon after they were despatched from the go-down of the
plaintiff, otherwise, there was no reason for the defendant to get the
delivery of the goods on such condition which clearly demonstrate that
ownership transferred from seller to buyer at the point of delivery of
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 18-Aug-23
11:04:17 AM
goods, i.e, from the godown of the seller at Ekalduna, District Dhar.
21. So far as the judgements cited by Shri Agrawal are concerned, in
the considered opinion of this Court, in the aforesaid factual
background, none of the judgements are of any avail to the appellant.
Shri Agrawal, has also tried to bring in the concept of FOR, i.e, (Free
on Rail) delivery of goods in order to distinguish the judgements relied
upon by the learned judge of the trial Court, but this Court is of the
considered opinion that the said issue is also not involved in the present
case, and the non-mentioning of FOR on the invoices is hardly relevant
under the facts and circumstances of the case.
22. So far as the outstanding amount of Rs.47,82,175/- which
remained unpaid by the defendant no.1 is concerned, Shri Agrawal has
laid much emphasis on the fact that the ledger Exhibit P-50-C which
has been relied upon by the plaintiff cannot be taken into account has a
piece of admissible evidence has also referred to Section 34 of the
Evidence Act, as also the decision rendered by the Bombay High Court
in the case of Zena Sorabji and others vs. Mirabelle Hotel Company
reporatd as AIR 1981 Bom. 446. Shri Agrawal has also drawn
attention of this Court to Exhibit (P-50-C) in which a sum of
Rs.53,72,922/- has also been brought forward as on 1.4.1994, which
represents a debit balance pertaining to the transaction of previous
years which were not in dispute in the suit. It is also submitted that
without there being any contemporaneous books of accounts such as
cash book, vouchers other documents containing primary evidence of
transaction, the learned judge of the trial Court ought not to have relied
upon the ledger entries of Ex.P-50-C which also runs contrary to the
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 18-Aug-23
11:04:17 AM
decision rendered by the Supreme Court in the case of Ishwar Dass
Jain vs. Sohan Lal reported as AIR (2000) 1 SCC 434 para 22, 26,
Mahasay Ganesh Prasad Ray vs. Narendra Nath Sen, reported as
AIR 1953 SC 431.
23. In this regard, this Court is of the considered opinion that mere
showing the carried forwarded entry in the Ex.P/50-C only demonstrate
that the plaintiff has come to the court with clean hands, as they have not
claimed any amount in respect of the period prior to 03.04.1996. It is also
reflected from the fact that plaintiff has claimed the payment in respect of
the period from 03.04.1994 to 06.03.1995 only, and the amounts
which have been received by them in respect of the earlier bills have
been duly credited. It is also apparent that the original Ledger of the
defendant was brought in court but there is absolutely no cross-
examination of Pw/1 Sonawane on this document except that it does
not contain interest entries to which this witness has replied that had
it been mentioned, then the Company would also be required to pay
the income tax on the same. This court finds that the validity of this
document, Ex.P/50-C has not been challenged by the counsel for the
defendant in the trial court during the cross examination of the
plaintiff's witness, which is being tried to be supplemented by the
counsel for the appellant in this appeal and thus, cannot be accepted.
Thus, even if the other supporting documents have not been placed
on record by the plaintiff, the Ledger Ex.P/50-C and the various
invoices are sufficient to bring home his case on the basis of
preponderance of probability, coupled with the fact that there is a
deemed admission on the part of the defendant vide Ex.P/51 dated
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 18-Aug-23
11:04:17 AM
10.07.1995, proved by the plaintiff, in which shri Ashwin Sethi, the
partner of the defendant firm has accepted that an outstanding
amount of Rs.4498429/- on their account, and surprisingly, neither a
single question has been asked from Pw/1 A.R.Sonawane regarding
this document, nor the defendant has produced any witness to
challenge the said document. Thus, the decisions relied upon by shri
Agrwal would have no application under the facts and circumstances
of the case.
24. So far as the levy of interest @ 18 % per annum is concerned,
plaintiff has claimed the same based on the condition enumerated on the
back side of the invoices in which it is stated that interest @ of 18 % per
annum would be payable if payment was not made in one month. Shri
Agrawal has submitted that in the ledger entry there is no such entry
reflecting the rate of amount of interest accrued as on that date. In this
regard reliance is also placed by shri Agrawal on the decision rendered by
the Gujarat High Court in the case of S. Manuel Raj and Co. vs. J.
Manilal and Co. reported as AIR 1963 Guj. 148 para 3 and also the
decision rendered by the Supreme Court in the case of Bhagwandas
Goverdhandas Kedia vs. Girdharilal Parshottamdas and co. reported
as AIR 1966 SC 543. Reliance is also placed on section 61 of the Sales of
Goods Act 1930.
25. On due consideration, this court finds that although the decisions
cited by the counsel for the appellant are not applicable on the facts of the
case in hand, however, since the plaintiff has not reflected the interest
accrued on the amount due in the Ledger Ex.P/50-C, and the fact that
defendant has also challenged only the interest part of the ledger in the
cross examination of Pw/1 Sonawane, this court is inclined to accept the
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 18-Aug-23
11:04:17 AM
contention of the defendant that the condition of interest was not agreed
between the parties. So far as the decision relied upon by shri Vyas in case
of M/s. Dura Line India Pvt. Ltd.(supra) is concerned, for the
reasons assigned hereinabove, the same is also not applicable so far
as the condition of interest printed on the invoices is concerned, but
in respect of the other conditions of invoices, it is applicable. Thus, it
is held that the defendant is not entitled to pay any interest on the amount
as claimed in the plaint, to the plaintiff.
26. Resultantly, the appeal stands partly allowed, and while the decree
for Rs.54,34,095/- is hereby affirmed, but the finding of the trial court in
respect of the interest on the same is hereby set aside. The appellant is
directed to pay the aforesaid amount to the plaintiff within a period of one
month, failing which, it shall carry interest @18% p.a. from the date of
filing of the suit till the amount is paid. The impugned decree is
accordingly modified to the aforesaid extent.
(SUBODH ABHYANKAR)
JUDGE
das
Signature Not Verified
Signed by: REENA SUDHIR
DAS
Signing time: 18-Aug-23
11:04:17 AM
