Madras High Court
M/S.Allfaa Fabrics Karur vs M/S.Sri Krishna Industries on 15 April, 2021
S.A.(MD)No.820 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.820 of 2008
and
M.P.(MD)No.1 of 2008
1.M/s.Allfaa Fabrics Karur,
Represented by its Partner,
Kandasamy.
2.Kandasamy
3.Sakthivel ... Appellants
Vs.
M/s.Sri Krishna Industries,
Dindigul,
Represented by its Partner,
Ramakrishnammal. ... Respondent
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree, dated 28.11.2006 in A.S.No.34 of 2004 on the
file of the Principal Sub Court, Dindigul, confirming the judgment and decree
dated 29.08.2003 in O.S.No.699 of 2001 on the file of the Principal District
Munsif, Dindigul.
For Appellants : Mr.K.Govindarajan
For Respondent : Mr.R.Nandakumar
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S.A.(MD)No.820 of 2008
JUDGEMENT
The defendants in O.S.No.699 of 2001 on the file of the Principal District
Munsif Court, Dindigul, are the appellants herein. The suit was filed by a
partnership firm namely., M/s.Sri Krishna Industries, Dindigul, for recovery of
a sum of Rs.27,604.75 with interest. The suit was decreed on 29.08.2003.
Questioning the same, the appellants herein filed A.S.No.34 of 2004 before the
Principal Sub Court, Dindigul. By judgment and decree dated 28.11.2006, the
first appeal was dismissed. Challenging the same, this second appeal came to
be filed.
2.The second appeal was admitted on the following substantial questions
of law:-
“(1) Whether in law, the finding of the Courts below with respect to
Ex.A-2 that it is an order placed by the appellant is sustainable when the said
document was not signed by the appellant?
(2) Have not the Courts below committed an error in awarding interest
at 18% p.a. on the basis of Ex.A-3 and A-4, when the same was not accepted
and the contract is not concluded on the basis of Ex.A-3 and Ex.A-4?”
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S.A.(MD)No.820 of 2008
3.Heard the learned counsel on either side.
4.The case of the plaintiff is that they are engaged in manufacture and
sale of paper corrugated boards and boxes. It is a registered firm. According to
the plaintiff, the defendant-firm placed an order for manufacture and delivery of
a certain number of boxes of specific size and description on 07.11.2000. The
plaintiff-firm manufactured and despatched the same on 13.11.2000. The total
value of the supply was Rs.23,052/-. Though the defendant-firm was liable to
pay the invoice value, they evaded in making payment. Therefore, the plaintiff
issued Ex.A.5/notice dated 11.06.2001, calling upon the defendants to pay the
amount. The defendants instead of complying with the demand set out in the
notice, sent Ex.A.6/reply notice dated 18.06.2001. The defendants contended
that supply was not made in time. According to the defendants, the order was
not placed on 07.11.2000 but on 17.10.2000. According to the defendants, the
supply was not made within time. The supply was also not in terms of the
specifications. The defendants had to fulfill an overseas order. Because of
deficiency in service on the part of the plaintiff-firm, the defendants had
suffered huge loss. According to the defendants, not only the plaintiff's claim is
not maintainable but they have a counter claim against the plaintiff.
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S.A.(MD)No.820 of 2008
5.Since the defendants did not comply with the plaintiff's demand,
O.S.No.699 of 2001 came to be filed on 19.12.2001. The defendants filed
written statement controverting the plaintiff's claim. One of the partners of the
plaintiff's firm examined himself as P.W.1 and Exs.A1 to A9 were marked.
Kandasamy, the Managing Partner of the first defendant firm examined himself
as D.W.1. On behalf of the defendants, Exs.B1 to B12 were marked. Since the
defendants had taken a plea that the goods were received in a damaged
condition, Advocate Commissioner was also appointed. He conducted
inspection and submitted a report. The same was marked as Ex.C.1. The
learned Trial Munsif after considering the evidence on record decreed the suit
as prayed for. The first appeal filed by the defendants also ended against them.
6.When the second appeal was taken up for hearing, the learned counsel
appearing for the appellants submitted that the first appellant namely.,
M/s.Allfaa Fabrics, Karur, herein had filed Consumer Complaint No.7 of 2002
before the District Consumer Dispute Redressal Forum, Karur, against the
respondent-firm and its partners alleging deficiency of service on their part.
According to the appellants, they had suffered a loss of Rs.2,07,562/-. The said
complaint was allowed vide award dated 08.12.2017. It is seen that disposal of
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S.A.(MD)No.820 of 2008
consumer complaint is subsequent to the disposal of the first appeal. Therefore,
it could not be marked before the Courts below.
7.The learned counsel appearing for the respondent would point out that
questioning the award passed by the consumer forum, the plaintiff-firm had
filed an appeal before the State Commission and that it is still pending. I am of
the view that this second appeal can be independently disposed of, leaving open
the contentions of the parties in the consumer complaint to be independently
dealt with. In other words, the outcome of this second appeal will not have any
bearing on the pending appeal before the State Commission.
8.The learned counsel for the appellants would strongly contend that the
Courts below erred in relying on Ex.A.2, as if it is an order placed by the
appellants. According to the appellants' counsel, Ex.A.2 is dated 07.11.2000.
The specific defence of the appellants is that the supply was not made within
time. According to them, the order was placed much earlier ie., on 17.10.2000.
This is the first substantial question of law that has been framed. I am of view
that nothing much turns on Ex.A.2. This is because, admittedly the goods were
delivered to the defendants firm/appellants. The goods have been received by
the defendant-firm on 13.11.2000. If according to the defendants, the supply
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S.A.(MD)No.820 of 2008
was not made within time, they ought not to have taken delivery. In other
words, the goods supplied by the plaintiff's firm could have been returned as
such. Having taken delivery, it is not open to the appellants to now contend
that delivery was not made in time.
9.There is also no merit in the contention of the appellants' counsel that
the goods were in a damaged condition. If really so, the appellants ought to
have issued a notice immediately after receiving delivery on 13.11.2000 itself.
It was the plaintiff who issued Ex.A.5/notice on 11.06.2001 complaining that
the invoice amounts are yet to be settled by the defendant-firm. Only in
response to Ex.A.5/notice, Ex.A.6/reply notice was sent containing the
defences now projected. The failure on part of the appellants in responding
immediately after receiving delivery of the goods on 13.11.2000 is a
circumstance that goes against the appellants. In this view of the matter,
I answer the first substantial question of law against the appellants.
10.Delivery was made on 13.11.2000. The plaint was filed on
19.12.2001. Only for this period, the Courts below awarded interest at 18% per
annum. For the period subsequent to the filing of the suit, only 6% interest was
awarded. Since it is a commercial transaction, the Courts below cannot be said
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S.A.(MD)No.820 of 2008
to have erred in awarding 18% interest. The second substantial question of law
is answered against the appellants. I find no ground to interfere with the
impugned judgments and decrees. The second appeal stands dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
15.04.2021
Index : Yes / No
Internet : Yes/ No
ias
Note :In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1.The Principal Sub Court,
Dindigul.
2.The Principal District Munsif Court,
Dindigul.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.820 of 2008
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.820 of 2008
15.04.2021
https://www.mhc.tn.gov.in/judis/
