IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY R.F.A.No.1108 OF 2014 BETWEEN:
Ram Singh Kulhari, S/o.Mohan Singh Kulhari, Aged about 54 years, GPA Holder of National Steel Types, R/a.No.162/6, S.P.Road, Bangalore-560 002. .. Appellant ( By Sri Shankarappa G.B., Advocate ) AND:
Sri Prakash, M/s.S.R.S.Pumps and Motors, Raghaendra Complex, B.H.Road, Nelamangala, Bangalore-560 123. .. Respondent (Respondent-Served) This Regular First Appeal is filed under Section 96, Order XLI, Rule 1 of CPC, against the judgment and decree dated 19.6.2014 passed in O.S.No.25894/2013 on the file of the XXVI.Addl.City Civil Judge, Mayo Hall, Bengaluru, dismissing the suit for recovery of money.
This Regular First Appeal coming on for Final Hearing, this day, the Court delivered the following:
JUDGMENT This is the plaintiff’s appeal. The present plaintiff had instituted a suit against the present respondent arraigning him as defendant in the Court of learned XXVI Addl.City Civil Judge, at Mayohall, Bengaluru, (CCH-20), (hereinafter for brevity referred to as `trial Court’), in O.S.No.25894/2013, for recovery of a sum of `10,00,380/-, with future interest at the rate of 12% p.a.
2. The summary of the case of the plaintiff in the trial Court was that the plaintiff is a merchant and wholesale dealer of G.I. Pipes and fittings. The defendant had purchased goods on credit basis from the plaintiff under eight invoices and on the dates mentioned against those invoices and for the sum shown in those invoices as given in the table below :
The plaintiff has further stated that the total amount of the invoice is `7,85,947/-. The interest payable by the defendant is `2,14,433/-, thus, in total the defendant is liable to pay a sum of `10,00,380/-. Despite issuance of legal notice, the defendant did not pay the due amount to the plaintiff, as such, the plaintiff was constrained to institute the suit.
3. Despite service of summons, the defendant did not choose to appear and contest the matter. As such, he was placed ex parte.
In support of his case, the plaintiff was examined as PW-1 and documents from Exs.P-1 to P-10 were marked.
4. The trial Court framed the following points for its consideration :
1. Whether the plaintiff proves that defendant has purchased the goods of value of Rs.7,85,947/- on credit basis from the plaintiff as per the invoices shown at Sl.No.1 to 8 in the plaint paragraph No.2?
2. Whether the plaintiff prove that he is entitled for the interest on the invoices amount of Rs.7,85,947/- at the rate of 18% p.a.?
3. Whether plaintiff proves that he is entitled for the relief claimed in the suit?
4. What order?
5. The trial Court by its impugned judgment and decree dated 19.06.2014, answered point Nos.1 to 3 in the negative and proceeded to dismiss the suit of the plaintiff. It is against the said judgment and decree, the plaintiff has preferred this appeal.
6. The respondent was duly served with the notice, however, he has remained absent.
7. Lower Court records were called for and the same are placed before this Court.
8. During the pendency of this appeal, the appellant has filed two interlocutory applications, i.e., IA.No.1/2014, under Order XLI Rule 27 of Code of Civil Procedure (hereinafter for brevity referred to as `CPC’), and IA.No.1/2015, under Order XI Rule 14 read with Section 151 of CPC, seeking permission for production of additional documents. Both those applications were marked for their disposal along with the main appeal.
9. Heard the learned counsel for the appellant both on the main appeal and on interlocutory applications and perused the materials placed before this Court, including the memorandum of appeal, impugned judgment, lower Court records and the applications under consideration.
10. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
11. In view of the above, the points that arise for my consideration are :
“ 1. Whether IA.No.1/2014 deserves to be allowed?
2. Whether IA.No.1/2015 deserves to be allowed?
3. Whether the plaintiff has proved that the defendant had purchased the goods valued at `7,85,947/- from him on credit basis?
4. Whether the plaintiff proves that the defendant is liable to pay him the principal amount of `7,85,947/- and the interest thereupon at 18% p.a.?
5. Whether the judgment and decree under appeal deserves any interference at the hands of this Court?
12. PW-1 in his examination-in-chief filed in the form of affidavit evidence has reiterated the contentions taken up by the plaintiff in the plaint. The witness has stated that the defendant has purchased the goods on credit basis from the plaintiff under eight invoices, totally amounting to `7,85,947/-, but, failed to pay the amount. As such, the defendant is liable to pay the principal amount of `7,85,947/-. The plaintiff has also claimed the interest at the rate of 18% p.a. on the invoice amount till the date of filing of the suit, which in total said to be amounting to `2,14,433/-. Thus, PW-1 has stated that defendant is liable to pay the plaintiff a sum of `10,00,380/- with future interest thereupon. He has produced a photocopy said to be of Sundry Debtors at Ex.P-1, a photocopy of Ledger account extract at Ex.P-2. He has also got produced eight copies of tax invoices and got them marked at Exs.P-3 to P-10.
13. Under two interlocutory applications i.e., IA.No.1/2014 and IA.No.1/2015, the applicant/appellant has prayed for taking on record the documents which he is said to have produced along with those two applications. In the affidavits accompanying the applications, the applicant/appellant has stated that the documents he is producing if not taken on record, the applicant would be put to great hardship and injury.
14. Learned counsel for the appellant in his very brief argument submitted that the invoices produced by him and e-Sugam Forms are self-explanatory and they show that the defendant has failed to make the payment towards the plaintiff, as such, the suit of the plaintiff deserves to be decreed.
15. Under IA.No.1/2014, the applicant has not given the descriptions of the documents in his application. However, in the affidavit accompanying the application, he has stated that the documents which he is going to produce are e-Sugam Form No.7 generated by the Commercial Tax Department and the same give details of the parties and descriptions of the goods.
In IA.No.1/2015, the applicant has given the list of the documents, which he prays for taking on record, which also shown to have been included few cheques drawn on Syndicate Bank, Banker’s endorsement and computer copy of Sundry list of shops.
16. Admittedly, none of the documents sought to be produced under the interlocutory applications under consideration have come into existence subsequent to the institution of the suit. Even according to the learned counsel for the appellant/applicant, the alleged e-Sugam Form No.7 can be simultaneously generated when the alleged goods are said to have been shown as supplied to the purchaser. According to the learned counsel for the appellant, the said e-Sugam Forms reflects the details fed by the supplier of the goods. Further, admittedly all the documents sought to be produced under IA.No.1/2015 were also in existence and in the custody of the plaintiff much prior to he filing the suit against the defendant in the Court below. As such, it is not the case of the applicant/appellant that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after exercising due diligence be produced by him at the time when the decree against him was passed. As already observed, there is no whisper in any portion of the application/affidavit under consideration that the applicant could not able to secure or produce those documents despite his due diligence before the judgment and decree under appeal was passed. Thus, it is clear that despite the plaintiff being in possession and custody of the documents now sought to be produced, he did not produce them at the appropriate time in the trial Court for the reasons best known to him.
Even according to the learned counsel for the appellant, the details said to have been reflected in e- Sugam Forms, which are sought to be produced under IA.No.1/2014, would contain only those details which are submitted by the alleged supplier of the goods to the Commercial Tax Department. As such, assuming for a moment that those documents can be considered, still those documents in no way would serve as a proof for the alleged supply of the goods to the defendant and the receipt of the alleged goods by the defendant. For these reasons, I am of the view that both the applications i.e., IA.No.1/2014 and IA.N.1/2015, does not deserve to be allowed.
17. The suit of the plaintiff is shown to have been filed by one Sri Ram Singh Kulhari, son of Mohan Singh Kulhari and resident of No.162/6, S.P.Road, Bengaluru- 560002, however, in the cause title, he has shown himself as the General Power of Attorney Holder of National Steel Tubes. A reading of the cause title and the submission made by the learned counsel for the appellant in the course of the argument would go to show that the suit is filed by Sri Ram Singh Kulhari, however, the said cause title does not give any impression that the suit is filed by M/s.National Steel Types or M/s.National Steel Tubes. Had the suit being filed by the said business concern i.e., M/s.National Steel Tubes, then, the plaintiff should have described the plaintiff as M/s.National Steel Tubes, represented by its General Power of Attorney Holder. However, as observed above, the cause title in the plaint reads otherwise showing that the plaintiff is Sri Ram Singh Kulhari, son of Mohan Singh Kulhari, who incidentally is the General Power of Attorney Holder of M/s.National Steel Tubes. As such, at the outset, it has to be held that, when it is the contention of the plaintiff that the alleged supply of the goods to the defendant was by M/s.National Steel Tubes, but, the fact remains that the suit is filed by one Ram Singh Kulhari, the suit itself is not maintainable.
Secondly, assuming for a moment that the suit is filed by M/s.National Steel Tubes, represented by its General Power of Attorney Holder Mr.Ram Singh Kulhari, then, he was expected to produce the General Power of Attorney and got it marked as an exhibit during the course of he leading his evidence as PW-1. Admittedly, no such General Power of Attorney has been produced and marked as an exhibit from the side of the plaintiff in the case. As such, except the self-serving statement of PW-1 that he is the General Power of Attorney, there is nothing on record to show that the alleged establishment i.e., M/s.National Steel Tubes had authorised the plaintiff Mr.Ram Singh Kulhari to institute the suit on its behalf against the defendant.
Thirdly, the documents upon which the plaintiff has relied upon are the alleged Balance Sheet, the alleged Ledger extract and eight copies of tax invoices.
A perusal of the document at Ex.P-1 which is said to be a Balance Sheet, would go to show that the said document is not the original document, but it is a photocopy of a computer printout, which shows that it is the list of Sundry Debtors for the period from 1st April 2012 to 31st March 2013. The said document is neither original nor bears the original rubber stamp and signature of any authorised signatory or the Proprietrix of M/s.National Steel Tubes. For this reason, the said document does not inspire any confidence to take it as a document which has been maintained by the business concern (the plaintiff) in its normal course of business. Furthermore, except producing the said document at Ex.P-1, no more evidence with respect to the said document is also deposed by PW-1. As such, by mere looking at the said document, which gives a list of several of the firms, industries, individuals etc., it cannot be made out what that document denotes and how it can be linked to the defendant in the suit.
Fourthly, the document at Ex.P-2 is said to be a Ledger account extract. Even Ex.P-2 is also a photocopy of a document with the title Ledger Account S.R.S. Pumps and Motors, for the period from 1st April 2011 to 31st March 2012. Undisputedly, the said document is not the original Ledger. It is a photocopy of the printout of a document without the original rubber stamp and original signature of any authorised signatory authenticating the document. Even the rubber stamp and the signature which can be seen in the document is also photocopied version. Further, it is not known as to who have signed both the documents i.e., Exs.P-1 and P-2, whether it is Proprietor or Manager. According to the plaintiff’s contention, the business establishment M/s.National Steel Tubes is a Proprietrix concern. As such also, Ex.P-2 does not inspire any confidence to believe the same.
Fifthly, the tax invoices at Exs.P-3 to P-10 are the photocopies of the alleged tax invoices. Even though those tax invoices shows the name of M/s.S.R.S.Pumps and Motors, but, admittedly there is nothing mentioned in the said documents showing that the goods mentioned in those documents have been duly delivered to the addressee shown in those documents. Admittedly, none of those tax invoices bears any acknowledgement or receipt of the goods by the alleged consignee. All these tax invoices mentions that documents were through direct and few of them also shows that orders were placed through some person. Had really the orders were placed by the defendant being present in person before the plaintiff’s establishment, then, nothing had prevented the plaintiff to obtain the signature of the defendant for confirming the placement of the orders and supply of the goods. However, as already observed above, none of these tax invoices anywhere mentions that those goods shown in the invoices were duly delivered to the defendant and acknowledged by him. As such, by looking at the invoices at Exs.P-3 to P-10, it cannot be deduced that the goods shown in those invoices were actually at the instance of the defendant and were delivered to him. Even though the defendant has remained ex parte and has not contested the matter, but, irrespective of the same, the plaintiff has to make out his case and the plaintiff’s case should stand on its own legs.
In the instant case, as observed above, since the plaintiff’s case is with lot of suspicion within itself and which has remained not resolved by him, it is hard to believe that the plaintiff could able to prove that it had supplied the goods to the defendant as contended in the plaint and that the defendant was due to it the principal sum of `7,85,947/-, together with interest thereupon. The trial Court after appreciating the materials placed before it in its proper perspective since has given its finding on the points in the negative, the same does not warrant any interference at the hands of this Court.
18. Accordingly, I proceed to pass the following order:
ORDER IA.No.1/2014 and IA.No.1/2015 are dismissed.
The Appeal is dismissed. The judgment and decree dated 19.06.2014, passed by the learned XXVI Addl.City Civil Judge, at Mayohall, Bengaluru (CCH-20), in O.S.No.25894/2013, is confirmed.
The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court without delay.
Sd/- JUDGE bk/