Madras High Court
M/S.Magnum Enterprises vs M/S.Ployelastic Pvt Ltd on 20 December, 2021
S.A.No.1038 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 20.12.2021
CORAM
THE HONOURABLE Mrs. JUSTICE J.NISHA BANU
Second Appeal No.1038 of 2006
and M.P.No.1 of 2006
1.M/s.Magnum Enterprises
rep. By its
Authorised Signatory
Nishant Bandia
No.11 Camac Street
Kolkata
2.M/s.Magnum Enterprises
rep. By its Branch Manager
Murthy
No.10/1 (68)
Chevaliar Shivaji Ganesan Salai
South Boag Road, T.Nagar,
Chennai 600 017. .. Defendants/
appellants
Vs
1.M/s.Ployelastic Pvt Ltd.,
rep. By its Managing Director
S.Ravirajan
S/o.G.somasundaram
1/13
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S.A.No.1038 of 2006
2.M/s.Jap Overseas
rep. By its Proprietor
Sudip Mukherjee
No.14/8a Gariahat Road
Kolkata 700 019 .. Plaintiffs/
Respondents
Prayer: Second Appeal is filed against the judgment and decree dated
28.03.2006 made in A.S.No.527 of 2004, on the file of the Additional
District Judge, Fast Track Court-II, Chennai-1, in confirming the Judgment
and Decree dated 08.04.2004 made in O.S.No.23 of 2003, on the file of
the Metropolitan Magistrate, Chennai.
For Appellants ... Mr.Udayakumar
For Respondents ... Mr.L.Rajasekar for R1
JUDGMENT
The second appeal is preferred against the judgment and decree
dated 28.03.2006, made in A.S.No.527 of 2004, on the file of the
Additional District Judge, Fast Track Court-II, Chennai-1, in confirming
the Judgment and Decree dated 08.04.2004 made in O.S.No.23 of 2003,
on the file of the Metropolitan Magistrate, Chennai.
2. The defendants are the appellants herein. For the sake of
convenience, the parties are referred to as before the trial Court.
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S.A.No.1038 of 2006
3. Facts briefly narrated and necessary for the disposal of the second
appeal is as follows:
The suit is for recovery of money. The plaintiffs are the private
limited company manufacturing poly plastic and elastic materials. On
behalf of the defendants 2 and 3, the first defendant made an order for the
purchase of elastic materials worth about Rs.75,000/-. Accordingly, on
09.06.2001, the plaintiffs despatched the materials on credit basis. The
defendants 2 and 3 have to repay the said amount with interest at the rate
of 24% per cent on or before 15.06.2002. Even though notices and legal
notice have been sent, the said amount has not been repaid. Hence, the
suit.
4. It is the case of the defendants before the trial Court that, there
was no memorandum of understanding between the plaintiffs and the
defendants 2 and 3. It is between the first defendant and the plaintiffs and
therefore, the defendants 2 and 3 are not necessary parties to the suit. The
defendants denied the fact that the materials have been obtained from the
plaintiffs and since they bought the materials from the first defendant, the
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S.A.No.1038 of 2006
suit is not maintainable as against them. For the purchase of materials from
the first defendant also, the defendants 2 and 3 have repaid the amount to
the first defendant and hence, the question of repayment of money with
interest does not arise and prays for dismissal of the suit.
5. The trial Court framed the following substantial questions of law:
“1.Whether the plaintiffs are entitled for the relief
as prayed for?
2.Whether the defendants 2 and 3 are liable to pay
the suit amount?
3.To what relief the plaintiffs is entitled for?”
6. Before the trial Court, on the side of the plaintiffs, one witness by
name Ravirajan was examined as P.W.1 and as many as 26 documents
were exhibited as Ex.P1 to Ex.P26. On the side of the defendants, one
R.K.Moorthy was examined as D.W.1 and Ex.D1 to Ex.D4 were marked
as documents.
7. The trial Court, on considering the oral and documentary
evidence, came to the conclusion that the defendants 2 and 3 have admitted
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S.A.No.1038 of 2006
that they bought the materials on the recommendation made by the first
defendant from the plaintiffs and they have admitted that they have also
repaid the amount to the first defendant. However, it is seen that there is
no Memorandum of Understanding between the plaintiffs and the first
defendant and also between the first defendant and the defendants 2 and 3.
However, they admitted that they purchased the materials from the
plaintiffs and they have also admitted the fact that they have not repaid the
amount to the plaintiffs. Considering these facts and circumstances, the
suit is decreed as prayed for and the trial Court directed the defendants to
pay the suit amount of Rs.2,00,498.83/- with interest at the rate of 24%
from the date of petition till the date of deposit. As against which, the
defendants 2 and 3 filed the appeal.
8. The lower appellate Court framed the following substantial
questions of law:
“1.Whether the respondent/plaintiff has proved their
claim?
2.Whether the plea of discharge and lack of
jurisdiction are proved by the 2nd and 3rd
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S.A.No.1038 of 2006
defendants/appellants?
3.To what relief the appellants are entitled to?”
9. On considering the oral and documentary evidence, the lower
appellate Court dismissed the appeal thereby confirming the judgment and
decree of the trial Court. As against the same, the defendants are before
this Court with this second appeal.
10. While admitting the second appeal, this Court framed the
following substantial questions of law:
“Whether the lower appellate Court is right in
dismissing CMP No.655 of 2005 filed by the appellants
under Order 41 Rule 27 of the Code of Civil Procedure
without considering the reasons stated by the appellants
for the non production of the additional evidence before
the trial Court and whether the non reception of the
additional evidence sought to be adduced by the
appellants has affected the decision rendered by the lower
appellate Court?”
11. Heard the learned counsel for the appellants and the learned
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S.A.No.1038 of 2006
counsel for the respondents.
12. The learned counsel for the appellants raised the following
grounds:
The lower appellate Court has not considered the contentions put
forth by the appellants/defendants that the orders were placed at Kolkata
and hence, the cause of action arose only at Kolkata and not before this
Court and payments were made only to the 1st defendant, who, in turn,
instructed the plaintiffs to deliver the goods at Chennai. It is, therefore, the
contention of the appellants that the orders were not directly placed to the
plaintiffs and it was placed only through the 1st defendant. The Courts
below failed to consider that the payments were only made to the first
defendant for the goods ordered and the first defendant has not made the
payment to the plaintiffs for which the defendants 2 and 3/appellants herein
are not at all held liable. The Courts below have not taken into
consideration the jurisdiction aspect, which is erroneous and unsustainable.
12.1. The trial Court has failed to take into consideration the credit
note, namely, Ex.B1 and Ex.B2 produced by the 1st defendant and also
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S.A.No.1038 of 2006
failed to consider Ex.B3, which is a payment receipt and in the judgment
of the trial Court, there is no discussion whatsoever with regard to Exs.B1
to B3.
12.2. The contention of the learned counsel for the appellants is that
the first appellate Court ought not to have dismissed the application filed
under Order 41 Rule 27 of CPC.
12.3. Further more, with regard to interest portion, the trial Court
ought not to have awarded interest at the rate of 24%. When the
appellants are not liable to pay the suit claim, they are not entitled to pay
the interest also. It is the case of the appellants that the breach of contract
is by the first defendant and hence the findings rendered by the Courts
below are erroneous and are liable to be set aside.
13. The learned counsel for the first respondent would submit that
the findings rendered by the Courts below need not be interfered with,
since there is no privity of contract between the plaintiff and the second
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S.A.No.1038 of 2006
and third defendants and the goods were supplied by the plaintiffs for the
orders placed with the second respondent/first defendant at Kolkata. The
amounts were also settled to the first defendant and there is no liability for
the second and third defendants to the plaintiff. It is the further contention
of the respondents that during the pendency of the first appeal, the
plaintiffs filed a petition under Order 41 Rule 27 of the Code of Civil
Procedure seeking permission to adduce additional evidence by way of
documents. The first appellate Court had come to the right conclusion that
neither the written document nor the evidence speaks about the documents
and hence, the appellants/defendants cannot be permitted to adduce
additional evidence and dismissed the petition as not maintainable, since
the appellants do not satisfy the requirements under Order 41 Rule 27 of
the Code.
14. Heard the learned counsel on either side and perused the
materials available on record.
15. As far as the contention raised by the learned counsel for the
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S.A.No.1038 of 2006
appellants that the first appellate Court ought not to have dismissed the
application under Order 41 Rule 27 is concerned, in order to find out the
justification, the documents sought to be produced were looked into.
Those documents are invoices of the plaintiffs issued in favour of the
second and third defendants and the payment receipt between the second
and third defendants is on one hand and the first defendant on the other
hand.
16. Since the non production of those documents before the trial
Court have not been explained by the appellants, the first appellate Court
has rightly mentioned that those documents did not find a place either in
the written statement or in the evidence of the defendants and therefore
rightly dismissed the application. In relying upon the documents at this
point of time, the primary requirement of filing an application under Order
41 Rule 27 CPC itself is not satisfied. It is nowhere stated that despite due
diligence, the defendants were able to produce those documents before the
trial Court. Therefore, the first appellate Court is justified in not admitting
the application under Order 41 Rule 27 CPC.
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S.A.No.1038 of 2006
17. The next issue to be decided is whether the application under
Order 41 Rule 27 CPC, even if it had been allowed would have an impact
upon the result of the case. The very nature of the document especially the
receipt for payment would clearly go to show that those documents were
not between the plaintiffs and defendants 2 and 3, but between the 1 st
defendant and the defendants 2 and 3. It is relevant to point out that the
first defendant remained exparte before the trial Court and he was not
examined as a witness. If the plea of discharge, as taken by the defendants
2 and 3, is by way of payment to the first defendant and not to the plaintiff,
the defendants 2 and 3 are duty bound to explain how the plea of discharge
as against the first defendant would be an answer to the claim of the
plaintiffs. Considering all those aspects, the first appellate Court has
rightly confirmed the judgment of the trial Court and has dismissed the
appeal. Hence, this Court finds no merit in the grounds of appeal and the
appeal is liable to be dismissed.
18. In the result, the second appeal stands dismissed. However,
there is no order as to costs. Consequently connected Miscellaneous
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S.A.No.1038 of 2006
Petition is closed.
15.12.2021
Index : Yes/No
Internet : Yes
RR
J.NISHA BANU, J.
RR
To
1. The Additional District Judge, Fast Track Court-II, Chennai-1
2. The Metropolitan Magistrate, Chennai.
3. V.R. Section, High Court, Madras.
S.A.No.1038 of 2006
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S.A.No.1038 of 2006
20.12.2021
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