The Hubballi Dharwad Municipal Corporation Vs Ison Devices

¶1

1 -

¶2

NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21^ST DAY OF JANUARY, 2025 PRESENT

¶4

THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND

¶5

THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100432 OF 2017 (MON-)

¶6

BETWEEN:

¶7

THE HUBBALLI DHARWAD MUNICIPAL CORPORATION, REPRESENTED BY IT LAW OFFICER & COMMISSIONER, HUBBALLI-20, LAMINGTON ROAD, TQ. HUBBALLI, DIST: DHARWAD-580020.

¶8

…APPELLANT

¶9

(BY SRIYUTHS. ASHOK P. KAMOJI & G.I. GACHCHINAMATH, ADVS)

¶10

AND:

¶11

Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench

¶12

ISON DEVICES, A PROPRIETARY CONCERN, REPRESENTED BY ITS PROPRIETRESS KEERTI W/O SURESH KHONDAPUR, AGE: 42 YEARS, OCC: BUSINESS, R/O: HATTIKAR SAL, HUBBALLI-580020.

¶13

…RESPONDENT

¶14

(BY SRI. B.S KAMATE, ADV FOR C/R)

¶15

THIS RFA IS FILED UNDER SECTION 96 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DATED 17.07.2017 PASSED IN O.S.NO.318/2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, PARTLY DECREEING THE SUIT FILED FOR RECOVERY OF MONEY.

¶16

2 -

¶17

NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶18

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶19

CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA

¶20

ORAL JUDGMENT

¶21

(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

¶22

This Regular First Appeal is filed by the appellant challenging the judgment and decree dated 17.07.2017 passed in O.S.No.318/2011 by the learned II Additional Senior Civil Judge, Hubballi.

¶23

For convenience, the parties are referred to,

¶24

according to their ranking before the trial court. The appellant was the defendant, and the respondent was the plaintiff.

¶25

Brief facts leading rise to the filing of this Regular First Appeal are as follows:

¶26

The plaintiff filed a suit against the defendant for recovery of money. It is the case of the plaintiff that, the defendant had invited tenders for the years 2004-05 and

¶27

3 - NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶28

2005-06 for the supply of various materials under a scheme called “18% Scheme” for the benefit of persons belonging to schedule caste and schedule tribe, and for the year 2006-07, no fresh tenders were called for, and the defendant asked the plaintiff to supply the materials at the rate accepted for the year 2005-06. The plaintiff delivered the materials to the defendant i.e., to different zones of the defendant. In pursuant to the orders passed by the zonal officer for the worth of ₹1,02,92,798/-, the defendant paid a sum of ₹67,41,562/- and a balance of ₹35,51,236/- is due. The plaintiff requested the defendant to pay the balance due of ₹35,51,236/-. It is stated that, in spite of notice issued on 30.05.2011 to the defendant, the defendant refused its liability by its reply dated 12.07.2011. The defendant refused to pay the same. Hence, a cause of action arose for the plaintiff to file a suit for recovery of money. Accordingly, prays to decree the suit.

¶29

4 - NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶30

The defendant filed a written statement

¶31

contending that, there is no privity of contract between the plaintiff and defendant for the year 2006-07. It is contended that, the defendant never agreed to the alleged interest @ 18%. The suit filed by the plaintiff is barred by limitation. Hence, on these grounds, prays to dismiss the appeal.

¶32

The trial court, based on the pleadings of the

¶33

parties, framed the following issues:

¶34

1) Whether the plaintiff proves that the defendant asked him to supply the materials of the rates accepted for the year 2005-06 in pursuance there of the different zones of the defendant issued requisition for supply of materials accordingly, he has delivered the materials different zones worth of ₹10,29,27,988/-?

¶35

2) Whether he further proves that the defendant has made payment to the tune of ₹67,41,562/- and still the defendant is liable to pay a sum of ₹35,51,236/- as on 17.01.2007?

¶36

3) Whether the defendant proves that the suit is in the present form is not maintainable?

¶37

5 - NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶38

4) Whether the defendant further proves that there is no contract it and plaintiff regarding supply of goods?

¶39

5) Whether the defendant further proves that the suit is barred by limitation?

¶40

6) Whether the plaintiff is entitled for the relief as claimed in the suit?

¶41

7) What order or decree?

¶42

To substantiate the case of the plaintiff, the

¶43

GPA holder of the plaintiff was examined as PW1 and marked 666 documents as Exs.P.1 to P.666. In rebuttal, the defendant, neither adduced any oral evidence, nor marked any documents. The trial court, after recording the evidence of PW1, hearing on both sides, and on the assessment of oral and documentary evidence, answered issue Nos.1 and 2 in the affirmative, issue Nos.3 to 5 in the negative, Issue No.6, partly in the affirmative, issue No.7 as per the final order. The suit of the plaintiff was partly decreed with costs. It is declared that, the defendant is liable to pay a sum of ₹35,51,236/- with interest @ 6% per annum, on the balance amount of ₹35,51,236/- from 17.01.2007 till complete payment. The

¶44

6 - NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶45

defendant, aggrieved by the judgment and decree dated 17.07.2017 passed in O.S.No.318/2011, filed this regular first appeal.

¶46

Heard the learned counsel for the defendant

¶47

and also the learned counsel for the plaintiff.

¶48

Learned counsel for the defendant submits that,

¶49

the plaintiff filed a suit for the supply of alleged materials for 2006-07. He submits that, there is no privity of contract between the plaintiff and defendant for 2006-07. Hence, he submits that, the trial court, without considering that, there is no privity of contract, passed the impugned judgment. He submits that, the defendant had made a double payment to the plaintiff. The said aspect was not considered by the Court below. He also further submits that, the trial Court has not granted the sufficient opportunity to the defendant, to lead the evidence. Hence, on these grounds, prays to allow the appeal.

¶50

7 - NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶51

Per contra, the learned counsel for the plaintiff

¶52

submits that, initially, the defendant invited the tender for the supply of materials for the years 2004-05 and 200506. Pursuant to the tender, the plaintiff has supplied the materials to the defendant. The defendant did not call for the tender, for the year 2006-07. The Zonal officer orally placed the orders to the plaintiff, for the supply of materials. Pursuant to the oral orders of the zonal officer, the plaintiff has supplied the materials worth ₹1,02,92,798/-. He submits that, the defendant had paid ₹67,41,562/-. The defendant has failed to pay the balance amount of ₹35,51,236/-. The plaintiff requested the defendant to pay the balance amount which is due, but the defendant refused to pay. He submits that, though, the trial Court granted sufficient opportunity to the defendant to rebut the evidence of the plaintiff, despite granting of sufficient opportunity, the defendant did not step into the witness box. He submits that, there is no rebuttal evidence. Hence, the trial Court was justified in passing

¶53

8 - NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶54

the impugned judgment. Hence, on these grounds, prays

¶55

to dismiss the appeal.

¶56

Perused the records, and considered the

¶57

submissions of the learned counsel for the parties.

¶58

The points that arise for our consideration are

¶59

as follows:

¶60

1) Whether the plaintiff proves that, the plaintiff has supplied the material to the defendant for the year 2006-07?

¶61

2) Whether the defendant proves that the defendant had made double payment to the plaintiff?

¶62

3) Whether the defendant has made out a ground to entertain the application for the production of additional evidence?

¶63

4) Whether the defendant proves that the judgment and decree passed by the trial Court is perverse and arbitrary?

¶64

5) What order or decree?

¶65

9 - NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶66

Point Nos.1 and 2 : These points are

¶67

interlinked, and they are taken together for the common discussion in order to avoid the repetition of facts. It is the case of the plaintiff that, the defendant invited the tender for the years 2004-05 and 2005-06. The plaintiff was the successful bidder. The plaintiff supplied the materials to the defendant in 2004-05 and 2005-06. Admittedly, the defendant did not invite the tender for the year 2006-07. The zonal officer of the defendantCorporation requested the plaintiff to supply the materials for the year 2006-07. As per the directions of the zonal officer, the plaintiff supplied the materials to the defendant worth ₹1,02,92,798/-. Out of the said amount, the defendant paid ₹67,41,562/-, and the balance due as on 17.01.2007 was ₹35,51,236/-. The plaintiff requested the defendant to pay the balance due, but despite the request made by the plaintiff, the defendant did not pay the balance due. The plaintiff to substantiate his case, the power of attorney holder of the plaintiff was examined as PW1. He reiterated the plaint averments in the

¶68

10 - NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶69

examination-in-chief, and to prove that, the plaintiff had supplied the goods to the defendant for 2006-07, the plaintiff has produced the documents. Ex.P1 is the tender form, which discloses that the defendant had invited a tender for the supply of materials. The plaintiff submitted a tender form along with the demand draft of ₹10,000/on 14.9.2004, and the rate list was enclosed along with the form. Ex.P2 is the tender form submitted by the plaintiff on 12.7.2004, and the defendant had received the EMD through a cheque bearing No.328339 dated 18.08.2005 for ₹5000/-. Ex.P3 is the tender form submitted by the plaintiff, which discloses that the plaintiff has paid EMD of ₹10,000/- through a cheque bearing No.811653 dated 31.05.2005. Ex.P4 is the communication dated 29.07.2004 addressed to the defendant requesting the defendant to know the terms of payment and time required to make the payment soon after the completion of the supply of the material. Ex.P5 is the communication dated 30.08.2004 addressed to the defendant wherein, the plaintiff has stated that, the plaintiff has not received

¶70

11 - NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶71

the reply to the communication dated 29.07.2004 and requested the defendant to disclose the payment immediately, and timely to enable the plaintiff to execute the pending supply orders. Ex.P6 is the communication dated 17.09.2004 addressed to the defendant reiterating the contents of the communication dated 30.08.2004. Ex.P7 is the communication dated 02.05.2005 addressed to the commissioner, i.e., the reminder letter to the defendant, Ex.P8 is the communication dated 19.05.2006, which discloses that a message was sent to the commissioner, HDMC, as per the verbal order and directions given to CAO on 4^th instant, to make ₹9 lakhs payment by arranging all the bills. Ex.P9 is the letter addressed by the plaintiff to the defendant stating that, the bills were submitted, but the defendant did not clear the bills. Exs.P10 and 11 are the postal acknowledgments. Ex.P12 is the letter addressed by the plaintiff to the defendant requesting the defendant to make a payment for the material supplied by the plaintiff. Exs.P13 to 19 are the letters to Commissioner, Ex.P20 is the copy of account

¶72

12 - NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶73

statement, Exs.P21 to 29 are the letters, Ex.P30 is the copy of reply, Ex.P31 is the letter to reply, Ex.P32 and 33 are the copy of reminders, The plaintiff in order to prove that, the plaintiff has supplied the materials to the defendant, the plaintiff has produced the communications marked as Exs.P34 to 139, and the reply given by the defendant are marked as Ex.P138, and Ex.P139 wherein the defendant has clearly admitted the delivery challan, Ex.P140 and 141 are the postal receipt and acknowledgment, Ex.P142 to 145 are letters to defendant, Ex.P146 is the pending bill extract, Ex.P147 is the supply order, Ex.P148 is the delivery challan, Ex.P149 to 240 are the supply orders and delivery challans, Ex.P241 and 242 are acknowledgments, Ex.P243 to 642 are the supply orders and delivery challans, Ex.P643 is the office copy of notice, Ex.P644 is the reply, Ex.P645 to 648 are the bills books, Ex.P649 is the copy of statement of account, Ex.P650 is the copy of Namune-3CB, Ex.P651 is the copy of Namune- 3CD, Ex.P652 to 654 are the audit reports, Ex.P655 to 661 are the copy of ledger account and

¶74

13 - NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶75

certificate, Ex.P662 to 665 are the copy of ledger account, and Ex.P666 is the GPA.

¶76

During the cross-examination, the defendant suggested that, the defendant had paid a double bill, but except the suggestion, and also that there is no privity of contract for the supply of materials for the year 2006-07, nothing has been elicited from the mouth of this witness to disbelieve the evidence. From the perusal of Ex.P138, wherein the Chief Accounts Officer of Hubli Dharwad Municipal Corporation, Hubli, addressed the letter to the plaintiff dated 16.09.2006, wherein the Chief Accounts Officer requested to obtain the details of bills as soon as they are published in the notice board or as and when he received the cheque or amount will be credited to the account of the plaintiff. Further, it is stated that most of the bills are related to the 18% scheme category, and payments will be made as and when the funds are made available in that category as per the seniority list. The said Ex.P138 is sufficient to hold that, there was a privity of

¶77

14 - NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶78

contract between the plaintiff and defendant, for supplying materials for the year 2006-07.

¶79

Though, the plaintiff has produced the records to establish that, the plaintiff had supplied the materials to the plaintiff worth ₹1,02,92,798/-, and out of the said amount, the defendant paid ₹67,41,562/- and the balance due is ₹35,51,236. If at all, there was no privity of contract between the plaintiff and defendant for supply of materials for the year 2006-07, there was no necessity for the defendant to pay an amount ₹67,41,562/-. Further, the defendant had not returned the goods supplied by the plaintiff for 2006-07. The defendant, having accepted the goods supplied by the plaintiff, is bound to clear the bills submitted by the plaintiff and pay the amount as per the invoice. The defendant has failed to pay the amount of ₹35,51,236/-. Further, there is no rebuttal evidence on behalf of the defendant. Though, sufficient opportunity was granted to the defendant to lead evidence, the defendant had not availed the sufficient opportunity

¶80

15 - NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶81

provided by the Court. In the absence of rebuttal evidence, the materials produced by the plaintiff are sufficient to hold that, the plaintiff had supplied the goods to the defendant worth ₹1,02,92,798/- and out of the said amount, the defendant paid ₹67,41,562/- and the balance due is ₹35,51,236/-. The trial Court considered the documents produced by the plaintiff and the letters issued by the defendant as per Ex.P138, wherein the defendant admitted that the bills relating to 18% scheme category payments will be made as and when the funds are made available in that category as per the seniority list. The plaintiff has proved that, the plaintiff had supplied the materials to the defendant, and the defendant paid part of the amount, but failed to pay the remaining amount. In the absence of rebuttal evidence, the defendant failed to establish that, the defendant had paid double the amount. In view of the above discussion, we answer point No.1 in the affirmative and point No.2 in the negative.

¶82

16 - NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶83

Point No.3 : The defendant filed an application in I.A.No.1/2023, for the production of additional

¶84

evidence. In support of an application, the law officer of the defendant- Corporation has filed an affidavit stating that he is working as a law officer in the defendantCorporation and that he knows the facts of the case. It is stated that the plaintiff filed a suit seeking recovery, and the suit was decreed directing the defendant to pay a sum of ₹35,51,236/- with interest @ 6% p.a., on the balance amount from 17.01.2007. The defendant, aggrieved by the judgment passed by the trial Court in O.S.No.318/2011, filed the instant appeal.

¶85

It is stated that the defendant intends to place the Account statement in respect of the payments made by the defendant to the plaintiffs, and also, the account statement reflects the payments that are given twice by the defendant. The statement of accounts would enable

¶86

and give a clear picture with regard to the accounts pertaining to the defendant and plaintiff. The account

¶87

17 - NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶88

statement is furnished by the accounts department. The statement of account pertains to the 9 zones of HDMC spread over Hubballi and Dharwad, and the information sought to be obtained from every zone by the accounts department, therefore, the same could not be produced before the trial Court and the suit was decreed. The statement of accounts reflects the clear account between the parties, and would enable effective adjudication of the rights between the parties. The plaintiff cannot be permitted to be enriched illegally and unlawfully. Hence, prays to allow the application.

¶89

The plaintiff filed its objections to the said application, contending that, the plaintiff filed a suit in 2011, and the defendant filed a written statement denying the averments made in the plaint, and the issues were framed by the trial court. The plaintiff led the evidence. The defendant has not led either oral or documentary evidence. The trial Court decreed the suit of the plaintiff. The defendant, at this stage, cannot file the application.

¶90

18 - NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶91

The application filed by the defendant is not maintainable at this stage. The defendant has not fulfilled the requirements of Order 41 Rule 27 of CPC. Hence, the same is liable to be rejected.

¶92

Perused the records, and considered the

¶93

submissions of the learned counsel for the parties.

¶94

From the perusal of the written statement filed by the defendant, it discloses that, the defendant has not pleaded in the written statement, that, the defendant had made payment twice to the plaintiff. The evidence which was not a part of the pleadings could not be led in the trial. Further, there is no reference of the proposed additional documents in the written statement. Though, sufficient opportunity was provided to the defendant to lead the evidence and produce the document, despite it, the defendant did not avail the opportunity given to the defendant. The object of Order 41 Rule 27 is that, the court, while considering the application for the production of additional evidence, it is necessary to examine whether

¶95

19 - NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶96

the proposed documents are necessary for the purpose of pronouncement of judgment. Further, the object of Order 41 Rule 27 of CPC is not designed or helped the parties to patch up weak points and make up for omissions earlier made, and further, the jurisdiction of the appellate court is restricted for permitting such additional evidence as would enable it to pronounce the judgment. Further, the suit was disposed of vide judgment dated 17.07.2017, and the application for the production of additional evidence was filed on 4.12.2023. The Hon’ble Apex Court in the case of

¶97

N. KAMALAM (DEAD) AND ANOTHER VS. AYYASAMY & ANOTHER REPORTED IN 2001 (7) THAT SCC 503, held that, the court must always be cautious about allowing the applications seeking to adduce additional evidence, particularly in the form of oral evidence, after a long interval between the decree and the application. The application is filed after a lapse of 6 years, from the date of passing the decree. The appellant has not fulfilled the requirements of Order 41 Rule 27 of CPC. This Court can pronounce the judgment, based on the material available

¶98

20 - NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶99

without taking the additional evidence. Thus, the

¶100

defendant has failed to establish the requirements of Order 41 Rule 27 of CPC, and accordingly, the application I.A.No.1/2023 deserves to be rejected. In view of the above discussion, we answer point No.3 in the negative.

¶101

Point No.4 : Based on the evidence of PW.1 and documents produced by the plaintiff before the trial Court, it clearly discloses that, there is a privity of contract between the plaintiff and the defendant, and the plaintiff has supplied the goods worth ₹1,02,92,798/- and out of the said amount, the defendant paid a sum of ₹67,41,562/- and the defendant is due of ₹35,51,236/-. Further, there is no rebuttal evidence by the defendant to rebut the plaintiff's evidence. The trial Court was justified in passing the impugned judgment. Hence, we do not find any error in the impugned judgment. We concur with the judgment passed by the trial Court. Accordingly, we answer point No.4 in the negative.

¶102

21 - NC: 2025:KHC-D:1019-DB RFA No. 100432 of 2017

¶103

Point No.5 : Accordingly, we proceed to pass

¶104

the following:

¶105

ORDER

¶106

The appeal is dismissed.

¶107

I.A.No.1/2023 is rejected.

¶108

The judgment and decree passed by the

¶109

trial Court, is hereby confirmed.

¶110

No order as to the costs.

¶111

It is submitted that, pursuant to the

¶112

interim order, the defendant had deposited the entire decreetal amount before this court, and the learned counsel for the plaintiff submits that, the plaintiff has withdrawn part of the decreetal amount, and he submits that the balance amount may be transferred to the trial court.

¶113

Submission is placed on record.

¶114