IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY R.F.A. No.1969 OF 2006 BETWEEN:
1. M/s. C and M Forming Ltd., 1st Floor, No.530, 16th Cross, 2nd Stage, Indira Nagar, Bangalore-560 038 Represented by its Manager.
2. M/s. C and M Forming Ltd., Represented by its Managing Director, C and M Group, C and M House, Patel Road, Nashik – 422 001 Maharastra State.
Both appellants are represented by Power of Attorney Holder, Sri. Ashok B. Naik. (By Sri. R.Gopal, Advocate) AND:
…Appellants Smt. Jyothi Dhruva W/o. R.H.Dhruva, Aged about 25 years, Proprietrix, Jyothi Corporation, No.1107/2, APMC Yard, ‘A’ Block, Davanagere-577 001.
(By Sri. B.K.Manjunath, Advocate) **** …Respondent This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated:27.07.2006 passed in O.S.No.268/2004 on the file of the Principal Civil Judge(Sr.Dn.) at Davanagere, partly decreeing the suit for recovery of money.
This Regular First Appeal coming on for Hearing this day, the Court delivered the following:-
J U D G M E N T It is a defendants’ appeal. The present respondent as a plaintiff had instituted a suit against the present appellants arraigning them as defendants in O.S.NO.268/2004 in the Court of the Principal Senior Civil Judge at Davanagere (hereinafter for brevity referred to as the “Trial Court”), seeking for recovery of a sum of `1,28,550/- with interest there upon.
2. The summary of the case of the plaintiff in the Court below was that, the plaintiff was carrying on the business under the name and style of M/s. Jyothi Corporation and was a dealer in Maize and other products. The defendant No.1 is a Company incorporated under the provisions of the Indian Companies Act, 1956. It had its one of the branch offices at Bengaluru which is defendant No.1. The said defendants for the purpose of their business that was being carried on, placed orders for supply of several metric tonnes of maize with the plaintiff through one M/s. Prajwal Agencies of Bengaluru who was an intermediary. In that regard, contract forms were issued by the said intermediary on several dates wherein the terms and conditions were also incorporated. As per those contract terms, the plaintiff supplied a large quantity of Maize to the defendants during the period from 02-01-2004 to 07-02-2004 under sixteen Bills and amounting to a total sale value of a sum of `14,23,592/-. The defendants after taking delivery of those goods supplied to it made payment at different intervals commencing from 23-03-2004 to 17-07-2004 in nineteen instalments and in total amounting to `14,23,079/-. However, those payments were delayed payments, as such, as per the contract form, for the payments made beyond a period of forty-five days and/or sixty days, as mentioned in the contract form, the defendants/purchasers were liable to pay interest at the rate of `24% per annum on the delayed payment. Accordingly, after calculating the delayed payments made, the defendants were found to be liable to pay still a sum of `1,06,950/- to the plaintiff towards interest as on the delayed payment of the amount. It is the said amount together with a sum of `19,600/- as travelling expenses, phone call charges, etc. and in a sum of `2,000/- as towards notice fee and charges, the plaintiff has claimed a sum of `1,28,550/- from the defendants.
3. In response to the summons served upon it, the defendants appeared through their counsel and filed their Written Statement, wherein, the defendants admitted that they had purchased Maize from the plaintiff on credit basis. However, it denied that there was any agreement or contract between the parties regarding the payment of interest, muchless, interest at the rate of `24% per annum.
The defendant also contended that there was no specific contract between the plaintiff and the defendants for the alleged transactions, as such, the defendants are not bound by any of the terms and conditions that are canvassed in the plaint by the plaintiff.
The defendants specifically took a defence in their Written Statement stating that the placing of order by the defendants was through one M/s. Prajwal Agencies of Bengaluru. As per their agreement, the said agreement was executed at Bengaluru and the transaction has taken place at Bengaluru, as such, the Trial Court at Davanagere had no jurisdiction to try the suit.
It also took a specific contention that the claim of the plaintiff was an imaginary one and without any basis. It was specifically contended by the defendants that there was no mutual agreement or understanding between the parties about the interest to be paid on the alleged outstanding amount. As such, the suit itself was liable to be dismissed.
4. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration:-
1] Whether the plaintiff proves that the defendants placed orders for supply of maize as contended in para-3 of the plaint?
2] Whether the plaintiff further proves that the defendants are due of `1,28,550/- as contended by him?
3] Whether the plaintiff is entitled for the relief as sought for ?
4] Whether the defendants prove that there was no contract or agreement between the plaintiff and the defendants in the suit transaction?
5] Whether the defendants further prove that they have paid the entire balance amount of `14,23,079/- and there is no outstanding to be paid to the plaintiff?
6] Whether the defendants prove that this Court has no jurisdiction to try this suit?
7] What order or decree?”
5. On behalf of the plaintiff, her Power Attorney, Sri.B.N. Rajashekhar was examined as PW-1 and documents from Exhibits P-1 to P-29 were got marked. The said PW-1 was neither cross-examined from the defendants’ side nor defendants examined any witnesses on their behalf nor got marked any documents.
6. The Trial Court by its judgment and decree dated 27-07-2006, decreed the suit of the plaintiff in part holding that the defendants are jointly and severally liable to pay a sum of `1,06,950/- with future interest at the rate of `18% per annum from the date of suit till the release of the decretal amount. It is challenging the said judgment and decree of the Trial Court, the defendants have preferred the present appeal.
7. The Lower Court records were called for and the same are placed before this Court.
8. Heard the arguments of the learned counsel for appellants, learned counsel for the respondent and perused the material placed before this Court including the memorandum of appeal and the impugned judgment.
9. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively.
10. In the light of the arguments addressed by the learned counsels for the parties and after perusal of the materials placed before this Court, the only point that arises for my consideration is:
“ Whether the judgment and decree under appeal deserves interference at the hands of this Court ?”
PW-1 in his evidence has reiterated the contentions taken up by the plaintiff in her plaint. He has stated that the defendants have placed orders for purchase of Maize from her which are evidenced from the contract forms issued by M/s. Prajwal Agencies at Exs.P1 to P-6. The carbon copies of the invoices of the plaintiff were marked at Exs.P-7 to P-22. Stating that the amounts paid by the Defendants were shown in the plaint and which in total comes to a sum of `14,23,079/-, the witness has stated that those payments were delayed payments and as such, for the delay caused by the defendants beyond 45 to 60 days as per the terms and conditions of the contract form, the defendants were liable to pay interest at the rate of `24% per annum. It is the said amount which comes to a sum of `1,06,950/-, the plaintiff has claimed in the plaint.
11. As already observed above, the said evidence of PW-1 in his Examination-in-chief was not denied or disputed since the defendants did not cross- examine the said witness. It is on this aspect, the learned counsel for the appellants/defendants in his argument submitted that the defendants were not given fair opportunity to cross-examine PW-1 and to lead their evidence, as such, the matter deserves to be remanded with a direction to the Trial Court to give a reasonable opportunity to the defendants to cross- examine the plaintiff witnesses and to lead their evidence, if any, in the matter.
12. Per contra, learned counsel for the respondent/plaintiff vehemently opposing the said submission, submitted that sufficient opportunities were given by the Trial Court, which were not made use of by the defendants in the Court below. As such, the defendants cannot now canvass the point that they were not given a fair opportunity.
13. After perusal of the Lower Court records and other materials placed before the Court and also from the submission made from the learned counsels from both side, it is found that the Trial Court has given some opportunity to the defendants to cross-examine PW-1. In that process it had also recalled PW-1 at the application filed by the defendants and had given them opportunity to cross examine PW-1 . However, the defendants could not make use of the same at the appropriate time. As such, once again, the matter was taken up to its next stage. Then the defendants came up with a similar application. After dismissal of the said application, it appears that, the defendants preferred a Writ Petition before this Court in Writ Petition No.9309/2006 disposed of on 08-09-2006.
Though the said writ petition came to be disposed of on 08-09-2006 by this Court observing that due to subsequent development that has taken place in the original suit, the writ petition had become infructuous. At the same time, while dismissing the writ petition, this Court had granted liberty to the petitioners therein to urge the ground raised in the writ petition in the appeal to be filed by the petitioners against the judgment and decree of the Trial Court.
14. It is the submission of the learned counsel for the appellants/defendants that during the pendency of the writ petition, the Original Suit came to be decreed, as such, this Court had no opportunity to decide the said writ petition on its merit. Since the writ petition had reserved liberty to the petitioners therein (appellants herein) to agitate the grounds taken by them in the writ petition in its appeal also, he is requesting this Court to remand the matter considering his submission under Section 105 of the Code of Civil Procedure, 1908.
15. The Trial Court, while rejecting the successive applications filed by the defendants therein for recalling its previous order and permitting them to cross-examine PW-1 and to lead their evidence, has not properly appreciated and taken note of the reasons shown by the applicants in their application which had made them to file such an application seeking to recall the previous order of the Trial Court and seeking permission to cross-examine PW-1.
16. In the peculiar facts and circumstances of the case, where the suit is based on certain amounts or certain supply of goods, the other party who is alleged to be the purchaser of goods and against whom the alleged non-payment or default in making delayed payment is averred, then, he too requires to be given a reasonable opportunity before the Court coming to any finding on the materials placed by the plaintiff alone.
17. In the case on hand, admittedly the defendant had filed its Written Statement in the matter and issues were also framed. However, for the reasons explained by them, in their application, they could not cross- examine PW-1 within the given time and could not lead their evidence from their side. On the other hand, the defendants noting their responsibility that they should cross-examine PW-1 and also to lead their evidence in the circumstances of the case, had, without wasting any further time, approached this Court by filing Writ Petition No. 9309/2006. However, by the time the writ petition could be ripened for hearing, since the original suit itself came to be decreed, the writ petition was disposed of as observing that the same had become infructuous.
18. In such a peculiar facts and circumstances of the case, since under Section 105 of Code of Civil Procedure, 1908, the appellants/defendants can also raise ground of alleged error or defect or irregularity in any order passed by the Trial Court which affect the decision of the case and the appellants have also canvassed the said ground, I am of the view that in the best interest of justice, the matter deserves to be remanded with a direction to the Trial Court to afford a reasonable opportunity to defendants to cross- examine PW-1 and to lead their evidence. Needless to say that, in case the plaintiff examines any further witnesses on her side, the defendants would have an opportunity to cross-examine those witnesses also.
Accordingly, I proceed to pass the following:
O R D E R [i] The appeal is allowed in part;
[ii] The judgment and decree dated 27-07-2006 passed by the Court of the Principal Senior Civil Judge at Davanagere, in O.S.No.268/2004, is hereby set aside;
[iii] The matter is remanded to the Trial Court with a direction to it to permit the defendants to cross-examine PW-1 and to lead evidence on their side.
[iv] In case the plaintiff leads her further evidence in the matter, needless to say that the defendants therein shall have an opportunity to cross-examine the said witness also.
[v] Considering the fact that the Original Suit is of the year 2004, as such, one of the old suits, and to avoid any further delay in the disposal of the Original Suit, both parties are directed to appear before the Trial Court, without anticipating any fresh notice or summons from it on 13-08-2019 at 11:00 a.m. and participate in the further proceedings of the suit.
Registry to transmit a copy of this judgment along with the Lower Court records to the concerned Trial Court, without delay.
The refund of Court Fee, if any, would be in accordance with law.
Sd/- JUDGE BMV*