Madras High Court
Kothari Petrochemicals Limited vs B.V.Sadanand on 21 September, 2023
C.S(Comm.Div.)No.140 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :21.09.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
C.S(Comm.Div.)No.140 of 2022
Kothari Petrochemicals Limited,
having its Registered and Head Office at
No.115, Mahatma Gandhi Salai,
Nungambakkam,
Chennai 600 034.
Represented by its Deputy General Manager,
SCM and Commercial,
Mr.S.V.Ramesh ...Plaintiff
Vs.
1. B.V.Sadanand
2. S.L.Manjula ...Defendants
PRAYER: Plaint is filed under Order 7 Rule 1 of C.P.C read with
order IV Rule 1 of High Court O.S.Rules praying for the following
reliefs:-
1) To direct the first defendant to pay to the plaintiff a sum of
Rs.1,05,21,013/- and to direct the 1st defendant to pay to the plaintiff
subsequent interest @ 24% per annum on Rs.62,29,524/- from the
date of the plaint till the date of realiation.
1/13
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C.S(Comm.Div.)No.140 of 2022
2) To direct the defendants jointly and severally to pay the cost
of the suit.
For Plaintiff : M/s.S.Suba Shiny
For Defendants : Mr.B.Leelesh Sundaram
1 and 2 for M/s.Nathan and Associates
JUDGMENT
The suit has been filed by the plaintiff seeking for recovery of a
sum of Rs.1,05,21,013/- together with interest @ 24% per annum on
the sum of Rs.62,29,524/- from the date of the plaint till the date of
realization.
2.It is the case of the plaintiff that they are engaged in the
business of sale of Poly-Isobutylene and remnant LPG. In the course
of the business, the first defendant had contacted the plaintiff for the
supply of remnant LPG. The plaintiff had been supplying the same
from time to time and had raised invoices upon the first defendant on
such sale. The plaintiff would submit that a running account was
maintained in respect of the first defendant for the supply of goods.
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C.S(Comm.Div.)No.140 of 2022
3.It is the further case of the plaintiff that they had raised
several invoices on the first respondent based on requests and
purchase orders and the first defendant had also acknowledged the
supply. As on 31.07.2019, a sum of Rs.1,23,74,518/- was due and
payable to the first defendant and the said outstanding was admitted
by the first defendant vide his letter dated 11.10.2019. In the said
letter, the defendant had sought time to make the payments.
4.As on 06.10.2021, after adjusting the payments made by the
first defendant, there continued to be an outstanding of Rs.66,14,524-
payable by the first defendant to the plaintiff towards the invoices
dated 03.07.2019, 05.07.2019, 06.07.2019, 07.07.2019, 08.07.2019,
08.07.2019, 11.07.2019, 12.07.2019 and 14.07.2019. However, the
first defendant had made a part payment and thereafter, no amounts
were paid by him. Thereafter, there was a meeting between the
plaintiff and the first defendant on 27.10.2020, which was minuted
and yet another meeting on 12.02.2021. Though the said amount was
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C.S(Comm.Div.)No.140 of 2022
over due, the defendant did not come forward to make the payments,
despite several phone calls and letters. This constrained the plaintiff
to issue a legal notice dated 21.07.2021 calling upon the defendant to
pay a sum of Rs. 91.48.810/- being the principal amount as well as the
interest calculated @ 24% per annum from the date of respective
invoices. The notice was received by the first defendant, however, he
has not come forward to clear the outstanding. Therefore, the plaintiff
has been constrained to file the above suit.
5.The plaintiff has filed the statement of accounts to show the
total outstanding from the first defendant, which also includes the
interest calculation.
6.The defendant, though served, had failed to file their written
statement in time, and their right to file the written statement stood
forfeited. The second defendant is none other than the wife of the first
defendant. She has been impleaded as party to the suit and she had
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C.S(Comm.Div.)No.140 of 2022
deposited the title deeds with the plaintiff with an intent to create a
mortgage.
7. It appears that the parties had gone before the Tamil Nadu
Mediation and Conciliation Centre, High Court, Madras, but the
settlement was not arrived at. The plaintiff had also obtained an order
from this Court, directing the defendants to furnish security for the
suit claim.
8.The following issues had been framed by this Court, by orders
of this Court dated 17.07.2023.
“1.Whether the Plaintiff is entitled to the principal
due amount of Rs.62,29,524/- and interest @ 24 % on the
said principal amount for the period from 24.08.2019 to
31.05.2022 amounting to 42,91,488/- and totally
aggregating to Rs 1,05,21,013/- from the 1st Defendant ,
towards supply of goods ?
2.Whether the 2nd Defendant stood as Guarantor for
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C.S(Comm.Div.)No.140 of 2022
the dues of the 1st Defendant to the Plaintiff ?
3.Whether the 2nd Defendant has created a
Mortgage by deposit of title deed and deposited the
Original Gift Deed dt 28.12.2011 in her favour,,
Registered as Document no.2035 /2011-2012, Book I,
Pages 1 to 8, SRO Jaya Nagar, pertaining to her property
being residential site measuring 2900 sq ft and situated
at southern part of Survey No 107 of Hemmigepura
Village, Kengeri Hobli to the Plaintiff?
4.Whether the Plaintiff is entitled to enforce the
said Mortgage by Deposit of Title deed against 2%
Defendant in the event of default of payment by the 1%
Defendant?
5.Whether the Plaintiff is entitled to interest @ 24%
per annum on Rs.62,29.524/- from the date of the Plaint
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C.S(Comm.Div.)No.140 of 2022
till the date of realisation?
6.What other reliefs the Plaintiff is entitled to?
9.The plaintiff had examined himself as P.W1, who has also
been cross examined by the learned counsel for defendants and
marked Exs.P1 to P18.
10.Mr.AR.Ramanathan, learned counsel for the plaintiff would
submit that the amounts are claimed for the supply of Poly-Isobutylene
and remnant LPG to the defendant. He would submit in the course of
the business, the first defendant had accumulated the unpaid amounts.
The first defendant has acknowledged his liability under Ex.P3.
Exs.P13 and P14 are the minutes of the meeting that has been been
held between the parties. The invoices under which the goods have
been suppled have been marked as Ex.P4 to P12. The legal notice
issued by the plaintiff to the first defendant has been marked as
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C.S(Comm.Div.)No.140 of 2022
Ex.P15. Postal acknowledgment received from the first defendant has
been marked as Ex.P16. Statement of accounts and interest
calculation have been marked as Exs.P17 and P18. Therefore, it is
the contention of the learned counsel for the plaintiff that the plaintiff
has proved the outstanding of the defendant and the fact that there is a
categoric acknowledgment by the defendant, the suit be decreed as
prayed for.
11.Mr.B.Leelesh Sundaram, for M/s.Nathan and Associates,
learned counsel appearing for defendants would submit that, though
the defendants have not filed the written statement, they have been
able to establish through cross-examination of P.W.1 that Exs.P13 and
P14 are fabricated documents. He would submit that there are no
signatures inside the seal. Further, the seal in the minutes is totally
different. He would further submit that the claim of interest is rather
usurious and that the plaintiff is not entitled to the relief as claimed
for.
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C.S(Comm.Div.)No.140 of 2022
12.Heard the learned counsel on either side and perused the
materials available on record.
13.The contentions raised by the defendants cannot be accepted
since no written statement has been filed. If these contentions had
been raised in the written statement, the plaintiff would have had the
opportunity to deny them. However, the defendants have not even
come forward to file the written statement, and as on date, the defense
is unknown to the plaintiff. The letter dated 11.10.2019 (ExP3) and
the minutes (ExP13 and P14) would clearly show the acknowledgment
of debt by the first defendant. The said acknowledgment has not been
questioned by the defendants during the cross-examination of P.W1.
Neither have the defendants taken steps to send the document for
forensic examination. If really the documents were not executed by the
defendants, then the first defendant ought to have filed their written
statement and put forward their case. The statement of accounts has
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C.S(Comm.Div.)No.140 of 2022
been produced by the plaintiff which the defendant had objected
stating that the same is a xerox copy and not accompanied by Section
65B certificate. However, it is seen that a Section 65 B Certificate
has been filed. Therefore, the plaintiff has proved not only the supply
of goods which was accepted by the defendants but also the non-
payment. The defendants have only challenged the same, stating that
the signature is different, but however no steps have been taken to
prove the same, and therefore, the defense is not available to the
defendant.
14.The plaintiff has contended that the second defendant, who is
none else than the wife of the first defendant, has created a mortgage
by depositing the original deeds which is evidenced by a memorandum
of deposit of title deeds. Admittedly, the title deeds have not been
deposited by the second defendant nor has she executed any mortgage
document. It is only the first defendant who has deposited the original
documents with the plaintiff. Therefore, issue No. 3 has to be
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C.S(Comm.Div.)No.140 of 2022
answered against the plaintiff and in favour of the second defendant.
Since the second defendant is not a party either to the invoices or to
the acknowledgment of liability and the minutes of the meeting, the
plaintiff cannot enforce the mortgage by deposit of title deeds against
the second defendant. Therefore, issue Nos.2, 3 and 4 are answered
in favour of the defendant. As regards issues Nos.1 and 2, the
plaintiff has proved the supply and the fact that the first defendant has
failed to re-pay the money. Therefore, the substantial question of law
No.1 is answered in favour of the plaintiff.
15. The plaintiff has claimed the interest @ 24% per annum
even the Banks are not levying interest @ 24%. Though the
defendants have undertaken to pay the interest @ 24% under the
respective invoices, this Court is inclined to grant interest @ 9% per
annum from the date of the suit till the date of realisation. In the
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C.S(Comm.Div.)No.140 of 2022
result, the suit is partly decreed. The first defendant shall pay the sum
of Rs.1,05,21,013/- together with interest at 9% on Rs.62,29,524/-
from the date of plaint till the date of judgment together with costs.
21.09.2023
Index : Yes/No
Internet : Yes/No
Neutral Citation : Yes/No
srn
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C.S(Comm.Div.)No.140 of 2022
P.T. ASHA, J,
srn
C.S(Comm.Div.)No.140 of 2022
21.09.2023
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