Partly allowed

M/S Composite Technologies Pvt. Ltd. v. M/S Savani Carrying Pvt. Ltd.

Karnataka HC16 Nov 2023RFA/488/2012

Case brief

AI extract

What is this about?

In an appeal against a decree for freight recovery, the High Court modified the decree amount from Rs.3,71,064 to Rs.1,74,458 based on an undisputed letter from the plaintiff and admitted deficiencies in the plaintiff’s account book.

What did the court decide?

Respondent/Plaintiff entitled to Rs.1,74,458/- with interest at 18% per annum; decree modified.

M/S Composite Technologies Pvt. Ltd. Vs M/S Savani… — Money Laundering | Karnataka HC (2023)

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NC: 2023:KHC:41084 RFA No. 488 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA

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REGULAR FIRST APPEAL No.488 OF 2012

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BETWEEN:

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M/S COMPOSITE TECHNOLOGIES PVT LTD NO.A-151, 2C MAIN ROAD, 2ND STAGE, PEENYA INDUSTRIAL ESTATE BANGALORE-560058 REP BY ITS MANAGING DIRECTOR

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…APPELLANT

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(BY SRI. K T GURUDEVA PRASAD., ADVOCATE)

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AND:

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Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

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M/S SAVANI CARRYING PVT LTD REGD OFFICE AT BROADWAY CENTRE, 2ND FLOOR,DR AMBEDKAR ROAD, DADAR, T T MUMBAI-14

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AND BRANCH OFFICE AT NO.59, 2ND MAIN ROAD, 3RD CROSS, KALASIPALYAM NEWEXTENSION, BANGALORE-02 REP BY ITSBRANCH MANAGER SRI NAZEER AHMED

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…RESPONDENT

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(BY SRI PRASANNA V R, ADVOCATE)

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NC: 2023:KHC:41084 RFA No. 488 of 2012

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER-41 RULE-1 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 12.10.2011 PASSED IN O.S.No.9267/2004 ON THE FILE OF THE XXX ADDL. CITY CIVIL JUDGE, BENGALURU CITY, DECREEING THE SUIT FOR RECOVERY OF MONEY AND ETC.,

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard Sri K.T.Gurudeva Prasad, counsel for appellant and Sri Prasanna V.R., counsel for respondent.

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The present appeal is filed by the defendant challenging the validity of the judgment and decree dated 12.10.2011 passed in O.S.No.9267/2004 on the file of the XXX Additional City Civil Judge, Bengaluru.

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The facts which are utmost necessary for disposal of the appeal are as under:

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Plaintiff filed a suit for recovery of money in a sum of Rs.3,71,064/- with interest at 18% per annum on sum of Rs.3,70,064/- from the date of suit till realization, contending that the plaintiff Company engaged in the business of transportation of goods and transported the consignment of the defendant on different dates to various destinations

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commencing from 19.02.2002 to 01.03.2003. In respect of said transaction, a sum of Rs.6,45,064/- was due from defendant towards the freight charges. Defendant made payment in a sum of Rs.2,75,000/- in respect of Rs.6,45,064/whereby there was a balance amount of Rs.3,70,064/- payable to the plaintiff by the defendant and the same is acknowledged by the defendant by writing a letter on 30.05.2003 and despite repeated demands, defendant failed to make the said payment which necessitated the plaintiff to file the suit for recovery of money.

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Upon service of the suit summons, defendant entered appearance and filed written statement admitting the transactions, however, denied that the defendant is liable to pay sum of Rs.3,70,000/-.

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Based on the rival contentions, the Trial Court framed the following issues:

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(i) Whether plaintiff proves that it has transported various consignment of the defendant on different dates to various destination commencing from 19.2.2002 till 1.3.2003 and the defendant was due in a

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NC: 2023:KHC:41084 RFA No. 488 of 2012

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sum of Rs.6,45,064/towards freight charges?

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(ii) Whether the plaintiff proves that defendant has made payment of Rs.2,75,000/- leaving balance of Rs.3,70,064/- payable by it to the plaintiff?

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(iii) Whether the plaintiff proves the liability of the defendant to pay the suit claim?

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(iv) What order or decree?

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In order to prove the case of the plaintiff, plaintiff got examined Sri Wazeer Ahmed as P.W.1 and relied on six documents which were exhibited and marked as Exs.P.1 to 6. Among them, Ex.P.1 is 27 transport bills and Ex.P.2 is the letter written by the defendant to the plaintiff on 30.05.2003.

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As against the evidence placed by the plaintiff, Sri Kishore Babu got examined himself as D.W.1 and he has placed on record Ex.D.1-outstanding statement, and contended that the defendant is due only in a sum of Rs.1,74,458/- and defendant is ready to pay the said amount and sought for passing appropriate orders.

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NC: 2023:KHC:41084 RFA No. 488 of 2012

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On conclusion of recording of evidence, learned Trial Judge heard the parties in detail and on cumulative consideration of the material on record, decreed the suit of the plaintiff as prayed for.

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Being aggrieved by the same, defendant has filed by the present appeal on the following grounds:

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The learned Judge failed to consider the admission made in the cross-examination of P.W.1 that the goods booked by the appellant to be delivered at Delhi has not been delivered till date and also the admission that he does not know as to what has happened to the consignment. This conduct of the respondent/plaintiff has not been considered by the learned Judge.

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The learned Judge failed to appreciate that the value of the non delivered consignment was about Rs.4.00 to 5.00 lakhs and any damage occurred to the goods in transit or misplaced or not delivered it is to be borne by the owner. The respondent utterly failed to deliver the goods nor returned the goods to the appellant. The behavior of the respondent demonstrates that without performing his duties he is making a false claim against the appellant and the

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NC: 2023:KHC:41084 RFA No. 488 of 2012

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said aspect has not been considered by the learned Judge.

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The learned Judge failed to appreciate that the proper books of accounts maintained by the respondent has not been placed before the Hon’ble Court as the suit itself is based on the accounts and on this ground itself the learned Judge ought to have dismissed the entire suit.

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The learned Judge failed to consider the evidence of P.W.1 who has stated in the cross-examination and admits the entry in Exhibit-6a and further admission that it is an incomplete document and made alteration before filing the suit to claim more amount.

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The learned Judge also failed to consider the calculation differences shown at Exhibit P6 that the total amount is only Rs.1,77,000/- and further the respondent also claimed Rs.15,000/- towards non delivery of consignment booked by the appellant and the said fact has not been taken into consideration while decreeing the suit.

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The respondent also admits the letter exhibit D1 and its entry that the outstanding amount payable by the appellant was only Rs.1,74,458/-.

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NC: 2023:KHC:41084 RFA No. 488 of 2012

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The appellant has put so many suggestions to the plaintiff during the course of cross-examination which had strengthened the case of the appellant because the respondent has directly admitted the appellant’s case and this vital aspect has not been considered by the Trial Judge and passed the impugned judgment and decree.

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The Trial Judge has relied only on a stray document which has not been proved by the plaintiff/ respondent during the course of evidence and wrongly decreed the suit.

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The impugned judgment and decree suffers from contradictions and confusions because of the improper accounts and also the contradictory evidence. The conclusion arrived at by the Trial Court while passing the impugned judgment and decree are contrary to the cannons of justice, equity and fairplay.

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Sri K.T.Gurudeva Prasad, counsel for appellant, contended that the sum of Rs.3,70,064/- is not proved by the plaintiff in accordance with law and Ex.P.6 is the account book maintained by the plaintiff wherein several tampering is found

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NC: 2023:KHC:41084 RFA No. 488 of 2012

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by making correction by using white ink and therefore, the plaintiff’s suit ought not to have been decreed in toto .

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He further pointed out that as per Ex.D.1, defendant was due in a sum of Rs.1,74,458/- which is the letter written by the very plaintiff to the defendant on 31.03.2004 and therefore, the Trial Court decree needs to be modified.

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Per contra, Sri V.R.Prasanna, counsel for plaintiff/ respondent supported the impugned judgment by contending that Ex.P.2 is the letter whereunder the defendant has agreed that he is liable to pay sum of Rs.3,70,064/- and same finds a place in the written statement as well. As such, it should not now be accepted on behalf of the defendant/appellant that he is liable only in a sum of Rs.1,74,458/- and sought for dismissal of the appeal.

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In view of the rival contentions of the parties, this Court perused the material on record meticulously. On such perusal of the material on record, following points would arise for consideration:

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9 - NC: 2023:KHC:41084 RFA No. 488 of 2012

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(i) Whether the appellant has made out a case for modification of the decree in a sum of Rs.1,74,458/- with interest?

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(ii) Whether the impugned judgment to that extent needs interference?

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(iii) What Order?

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In the case on hand, the business transaction between plaintiff and defendant is not in dispute. According to plaintiff, towards freight charges there was a due in a sum of Rs.6,45,000/- for the transportation of the consignment from the period 19.02.2002 to 01.03.2003. Since the freight charges were not paid, there was correspondence between the parties.

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According to the plaintiff, Ex.P.2 is the letter which assumes importance in establishing that defendant was due in a sum of Rs.3,70,000/- at an undisputed point of time when all the payments made by defendant has been given deduction to towards total dues of Rs.6,45,000/-. Ex.P.2-letter dated 30.05.2003 addressed by M/s Composite Technologies Pvt. Ltd., to M/s Savani Carrying Pvt. Ltd., reads as under:

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NC: 2023:KHC:41084 RFA No. 488 of 2012

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“Dear Sir,

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This is with reference to our telephonic discussions and agreements, we agree to the proposal of Savani Carrying Pvt. Ltd.,

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For the purpose of record we had given two consignments were to M/s Savani Carrying Pvt. Ltd., in January 03 and February 03 for deliveries to be made at BPCL Delhi and BPCL Kolkatta. But the same was held back and not delivered as they wanted their balances to be cleared and further the cheques provided by us were not honored. Hence we arranged to have a discussion and have mutually agreed to the following:

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The materials are to be delivered in the next 3-4 days at BPCL Kolkatta against DD No.110499 dated 30.05.03 for Rs.2,00,000.00 (Rupees two lakh only) drawn on SBM Hirehalli. The above payment would be in full and final clearance of the cheques held by Savani Carrying Pvt. Ltd., other than the amount of 75,000/already received by you in March 03 against the total outstanding of Rs.6,45,000.00.

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Further, on receipt of acknowledgment we will give 4 post dated cheques for the balance amount of Rs.3,70,000.00 with atleast a months gap between each of them and a undertaking that all of them would be honored by ourselves on their respective due dates. Against these M/s Savani Carrying Pvt. Ltd., will deliver the Delhi consignment within 3-4 days from the date of receipt of the post date cheques.

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NC: 2023:KHC:41084 RFA No. 488 of 2012

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The acknowledged copies of both the deliveries are to be delivered to our offices for our records and invoicing purpose.

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We hereby are getting the attestation for the above from Mr.Ravishankar and Mr.Wazeer Ahmed as representatives of Savani Carrying Pvt. Ltd.,”

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Sri Gurudeva Prasad, counsel vehemently contended that sum of Rs.3,70,000/- was agreed to be paid by defendant subject to release of Delhi consignment. What exactly was the value of Delhi consignment is not spelt out by plaintiff or the defendant.

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Per contra, defendant has marked a letter dated 31.03.2004 at Ex.D.1. The said letter is addressed by the plaintiff to the defendant indicating that as on 31.03.2004 total outstanding payable by defendant to plaintiff is 1,74,458/towards the freight charges.

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Ex.P.2 is relied on by the plaintiff. Ex.D.1 is relied on by the defendant. Admittedly. Ex.P.2 is dated 30.05.2003 and Ex.D.1 is dated 31.03.2004, respectively.

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NC: 2023:KHC:41084 RFA No. 488 of 2012

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Sri V.R.Prasanna, however invited the attention of this Court to the cross-examination of D.W.1 wherein, it has been admitted that sum of Rs.1,74,458/- is arrived at after deducting the amount covered under post dated cheques and that is not the outstanding amount as on 31.03.2004.

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Unfortunately, such a mention is not made in Ex.D.1, which is the letter dated 31.03.2004 addressed to M/s Composite Technologies Pvt. Ltd., by Savani Carrying Pvt. Ltd., Ex.D.1 reads as under:

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“We invite your kind attention to the outstanding statement enclosed in ‘Annexure’ which is pending as on date.

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The total outstanding due is Rs.1,74,458/-.

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We shall appreciate if you kindly arrange for the payment of the same at the earliest.”

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There is no whisper either in the plaint or in the evidence about the post dated cheques received by the plaintiff from the defendant and after giving deduction to the amount covered under the post dated cheques, sum of Rs.1,74,458/- is arrived at.

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NC: 2023:KHC:41084 RFA No. 488 of 2012

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Sri V.R.Prasanna, at the time of arguments also contended that since the cheques were dishonoured, suitable action has been initiated by the plaintiff against defendant for dishonour of the cheques. If that is so, plaintiff cannot have the double benefit of having the action against the defendant for the post dated cheques in the criminal Court as well as civil suit before this Court.

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Admittedly, when the plaintiff himself has given a letter to defendant as on 31.03.2004 indicating the dues as 1,74,458/the decreeing of the suit by the Trial Court ignoring the probative value of Ex.D.1 which is an undisputed document is incorrect. To that extent, the impugned judgment needs interference.

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Since the plaintiff has also failed to establish each entry by examining the accountant while proving the contents in Ex.P.6 and there are number of tampering found in Ex.P.6 as is admitted by P.W.1 it is just and necessary for this Court to hold that appellant has made out a case for modification of the decree in a sum of Rs.1,74,458/- as against sum of

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NC: 2023:KHC:41084 RFA No. 488 of 2012

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Rs.3,71,064/- passed by the Trial Court. Accordingly, point

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Nos.1 and 2 are answered in affirmative.

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25. Regarding Point No.3: In view of the finding of this Court

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on point Nos.1 and 2 as above, the following:

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ORDER

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(i) Appeal is allowed in part .

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(ii) Respondent/Plaintiff is entitled to a sum of Rs.1,74,458/- from the appellant/defendant from the date of suit till realization with interest at 18% per annum.

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(iii) Office to draw modified decree.

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(iv) No order as to costs.

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Sd/JUDGE

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kcm

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List No.: 1 Sl No.: 48

M/S Composite Technologies Pvt. Ltd. v. M/S Savani Carrying Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

M/S Composite Technologies Pvt. Ltd. v. M/S Savani Carrying Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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