IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR CIVIL REVISION PETITION NO.160 OF 2012 C/W CIVIL REVISION PETITON NO.91 OF 2011 (SC) IN C.R.P. NO.160/2012 BETWEEN:
The Proprietor M/s. Baba Marketing No.341, ‘D’ Block Ramakrishnanagar Mysore – 570 023. …Petitioner (Sri.Gautam Keshava Murthy, Advocate for Sri S.K. Krishna Kumar, Advocate) AND:
M/s. D.R.K.Enterprises No.69/1, Sirsi Road Mysore Circle Chamarajpet Bangalore – 560 018.
A partnership firm Represented by its partner Ms.Divya S Upadhyaya. …Respondent (By Sri. B. Gururaj, Advocate for Sri K.A. Prakash, Advocate) ***** This Civil Revision Petition is filed under Section 18 of Karnataka Small Causes Courts Act, 1964, against the judgment dated 06.12.2010 passed in S.C.No.596/2010 on the file of the IX Addl. Senior Civil Judge, Member, MACT – 7, Court of Small Causes, Bangalore, partly decreeing the suit for recovery of money.
IN C.R.P. NO.91/2011 BETWEEN:
M/s. D.R.K.Enterprises No.69/1, Sirsi Road Mysore Circle Chamarajpet Bangalore – 560 018.
A partnership firm Represented by its partner Ms.Divya S Upadhyaya. …Petitioner (By Sri B. Gururaj, Advocate for Sri K.A. Prakash, Advocate) AND:
The Proprietor Baba Marketing No.341, ‘D’ Block Ramakrishna Nagar Mysore – 570 023. …Respondent (By Sri Gautam Keshavamurthy, Advocate for Sri S.R. Krishnakumar, Advocate for R-1) ***** This Civil Revision Petition is filed under Section 18 of Karnataka Small Causes Courts Act, 1964, against the judgment dated 06.12.2010 passed in S.C.No.596/2010 on the file of the IX Addl. Senior Civil Judge, Member, MACT – 7, Court of Small Causes, Bangalore, partly decreeing the suit for recovery of money.
These petitions coming on for hearing this day, the Court made the following:
ORDER These two Civil Revision Petitions are against judgment and decree passed in S.C.No.596/2010 and consequently to dismiss the counter claim of the defendant and Civil Revision Petition No.91/2011 is filed for modification of the decree and judgment dated 06.12.2010 in the same S.C.No.596/2010 passed by IX Additional Senior Civil Judge, Member MACT-VII Court of Small Causes, Bangalore.
2. For the sake of convenience, the parties are referred to as per their ranking before the Court below.
3. The facts briefly stated are that the plaintiff-the respondent in CRP No.160/2012 who is the petitioner in CRP No.91/2011 had filed a suit for recovery of sum of Rs.36,605/- along with interest @ 12% p.a. in respect of goods supplied to the defendant who is the petitioner in CRP.No.160/2012 .
4. In respect of the transactions regarding supply of the goods, the defendant-petitioner was under the obligation to pay the suit claim. As such, the plaintiff-respondent has issued legal notice for recovery of the amount payable to the defendant-petitioner. But the defendant-petitioner has failed to fulfill his obligation. Hence, the plaintiff-respondent was constrained to file the suit for recovery.
5. On service of summons, the defendant-petitioner who is the appellant in CRP No.160/2012 and respondent in CRP No.91/2011 appeared and filed the written statement denying the suit claim.
6. On the basis of the pleadings, the trial Court has framed following issues:-
(1) Whether plaintiff firm proves that defendant firm was due a sum of Rs.24,733/- as on the date of the suit?
(2) Whether defendant firm proves that defendant firm was due only Rs.1,123/- as on 16.4.2009?
(3) Whether plaintiff firm proves that defendant firm is liable to pay interest @ 24% P.A. on the outstanding dues?
(4) what order?
7. The plaintiff who is the appellant in CRP No.160/2012 got examined as PW.1 and documents are marked at P1 to P37 and the defendant is examined as DW-1 and documents are marked at Ex.D1 to Ex.D3.
8. On appreciation of the oral and documentary evidence on record, the trial Court partly decreed the suit directing the defendant-respondent firm to pay a sum of Rs.8,781/- with future interest @ 12% p.a. from the date of filing the suit till the date of realization.
9. Learned counsel for the appellant in CRP No.160/2012 who is the respondent in CRP No.91/2011 would strenuously contend that the trial Court has committed an error in relying on some of the entries in Ex.P1 and has come to conclusion that the defendant-respondent firm is liable to pay a sum of Rs.8,781/-. Ex.P1 cross ledger is not from the date of transaction i.e. from 01.4.2007 but from 09.10.2007. As such, there is no cogent evidence as to how the opening balance of Rs.13,849/- came to be entered in the said ledger extract. In addition, there is no corresponding consignment receipt or invoice to substantiate the said entry of Rs.13,849/-. In respect of two other entries, i.e. 12.6.2008 and 21.6.2008 and the last entry in Ex.P1 ledger extract, there is no satisfactory evidence to prove the claim.
10. As per the entry dated 09.9.2008, an amount of Rs.15,472/- is shown in the credit column even though the defendant had returned goods worth Rs.18,505/-. In respect of the last entry of Rs.4,625/-, there is no corresponding tax invoice and consignment receipt. These three entries are disputed entries but the trial Court has failed to consider the same. Thereby an erroneous finding is given by the trial Court that the defendant is liable to pay a sum of Rs.8,781/- as on date of filing of the suit.
11. Learned counsel for the respondent in CRP No.160/2012 who is the appellant in CRP No.91/2011 submits that judgment and decree passed by the trial Court needs to be modified. The trial Court has failed to consider the claim of the plaintiff as per Ex.P1 thereby committed error in disallowing the claim of the plaintiff regarding other entries made in Ex.P1-ledger extract.
12. In view of the rival contentions, the only question that arises is whether the finding given by the trial Court is erroneous and whether there are valid grounds for modification of the judgment and decree.
13. As could be seen from the impugned judgment in para Nos. 14 and 15, the trial Court has discussed about the oral and documentary evidence placed on record by both the plaintiff and respondent.
14. It is pertinent to note that the transaction between the plaintiff and defendant has started from 01.4.2007. But the entries in Ex.P1 do not disclose any entries in respect of transaction from 01.4.2007 instead, the entries starts from 09.10.2007 and the opening balance is shown as Rs.13,849/. But there is no cogent evidence or the corresponding tax invoice or consignment receipt to prove the entry of Rs.13,849/-. Two other disputed entries are dated 12.6.2008 and 21.6.2008. According to these entries, the amount shown as debit balance of Rs.18,341/-. According to Ex.D1- letter dated 16.4.2009, the proprietor of plaintiff firm has issued a letter demanding Rs.19,628/-. As per Ex.D3, the appellant who is the defendant has returned the goods worth Rs.18,505/-. There is no dispute whatsoever regarding the goods worth Rs.18,505/-. But the entry in Ex.P1 discloses that a sum of Rs.15,472/- is taken into credit instead of Rs.18,505/- and another disputed entry is regarding the last transaction dated 18.3.2009 which shows as Rs.4,625/- goods are supplied and the said sum is shown in the debit column. But there is no evidence whatsoever either oral or documentary i.e. tax invoice and consignment receipt. Thus, evidence has not been properly considered by the trial Court and there is no cogent evidence to prove the liability of Rs.7,648/-.
15. In the present case, the defendant- appellant in CRP No.160/2012 has admitted that he is liable to pay a sum of Rs.1,123/-. Considering the submission of the counsel regarding the evidence and the entries made in the Ex. P1 and other documentary evidence, if an amount of Rs.7,648/- is deducted from the amount calculated by the trial Court, which is Rs.8,781/-. The balance amount would be Rs.1,133/- which is the amount already admitted by the defendant in his written statement.
16. On re-appreciation of the oral and documentary evidence on record, this Court is of the view that the trial court has committed error in holding that the defendant has to pay a sum of Rs.8,871/- as on 18.03.2009. The plaintiff who is the appellant in CRP No.91/2011 has failed to prove that the trial Court has committed error in disallowing the claim of the plaintiff.
17. For the foregoing reasons, I proceed to pass the following:
ORDER 1. CRP No.160/2012 is partly allowed.
2. The defendant is directed to pay a sum of Rs.1,133/- along with interest of 12% p.a. from the date of filing the suit till the date of realization.
3. CRP No.91/2011 is dismissed.
Sd/- JUDGE SSD