Thimmaiah K Vs Sri. Panchamuki Nutriens Private Ltd.

THIMMAIAH K., S/O LATE KARIYAPPA AGED ABOUT 55 YEARS R/AT GAREPALYA VILLAGE KOLIGANAHALLI POST HOSAHALLI HOBLI KANAKAPURA TALUK RAMANGARA DISTRICT-562 117.

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…APPELLANT

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(BY SRI. SREENIVASAN M.Y., ADVOCATE)

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AND:

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SRI. PANCHAMUKI NUTRIENS PRIVATE LTD., Digitally signed REP. BY MANAGING DIRECTOR, by DEVIKA M DIVAKAR K.N., Location: HIGH AGED ABOUT 37 YEARS, COURT OF KARNATAKA OFFICE AT NO.21-32-33-34, KIADB LAYOUT, TUBINAKEKRE MANDYA TALUK, MANDYA DISTRICT-571 407.

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…RESPONDENT

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(RESPONDENT SERVED AND UNREPRESENTED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.01.2023 PASSED IN R.A.NO.31/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MANDYA, DISMISSING THE

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APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 12.04.2022 PASSED IN O.S.NO.655/2018 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, MANDYA.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard learned counsel for the appellant. This matter is listed for final hearing. This Court has issued notice to the respondent and inspite of service of notice, the respondent did not choose to appear before the Court and engage any counsel.

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The factual matrix of case of the respondent before

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the Trial Court is that the plaintiff's company is registered under the Companies Act and represented by Managing Director. The plaintiff's company is involved in business of manufacturing and selling of cattle feeds throughout the State of Karnataka under the name and style as reflected in the cause title. The said company is involved in business of wholesale and retail sales of cattle feeds. The defendant being the wholesale as well as the retailer being the regular customer of plaintiff company, purchased cattle feeds from the said

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company between 20.07.2015 and 14.06.2016 for sum of Rs.3,59,450/-. Out of this, the defendant has paid Rs.3,06,150/- by way of cash, through cheque and bank transfer on various dates. Thereafter, since 14.06.2016, the defendant became defaulter for a sum of Rs.1,18,300/- and paid Rs.65,000/- on various dates through cash and cheque and is claimed to be due for Rs.53,300/-. The plaintiff demanded outstanding amount from the defendant, but the defendant did not come forward to make the payment and hence filed a suit.

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The defendant appeared and filed written statement. He has taken the specific contention in the written statement that payments are made and there is no any due towards the said executives in respect to the cattle feeds. The defendant specifically contend that there is only transaction between marketing executives and defendant and there is no any transaction between himself and plaintiff company.

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The Trial Court having considered the pleadings, framed the issues, whether the plaintiff proves that defendant is liable to pay Rs.77,087/- to the plaintiff and whether plaintiff

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is entitled to receive the said amount and allowed the parties to

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substantiate their claim.

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The plaintiff, in order to prove the case got examined P.W.1 and got marked the documents as Exs.P1 to P4 and also got marked one document as Ex.P5 by way of confrontation to the D.W.1 and got closed his side. The defendant in order to substantiate the contentions examined himself as D.W.1 by filing an affidavit and has not produced any documents in support of the said testimony. During the course of examination of P.W.1, one document has been marked by way of confrontation as Ex.D1.

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The Trial Court having considered both oral and documentary evidence answered the point as ‘affirmative’ in coming to the conclusion that defendant is liable to pay the amount as claimed in the plaint. The Trial Court, in paragraph No.17 of the judgment discussed with regard to the payment of Rs.47,300/- and the Trial Court comes to the conclusion that the same cannot be considered as the defendant has not at all pleaded regarding the set off in his written statement. It is settled position of law that the claim in absence of the

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pleadings cannot be accepted. The aforesaid claim is very much contrary to the written statement on record. It is also observed that defendant having not chosen to examine one Sri Shivaramu in order to demonstrate the payment being made by him towards the cattle feeds purchased by him, certainly inclines the Court to draw the adverse inference against the defendant and comes to the conclusion that the plaintiff has proved the dues.

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The said judgment and decree of the Trial Court was challenged before the First Appellate Court in R.A.No.31/2022 and the Firsts Appellate Court having considered the grounds urged in the appeal, formulated the points Whether the Trial Court has committed an error in granting the decree as sought and whether it requires interference of this Court. The First Appellate Court also having reconsidering the material available on record and also the grounds, in paragraph No.17 comes to the conclusion that the appellant relies upon the document of Ex.D1-reply notice issued by plaintiff company to the advocate of Sri Shivaramu to contend that in the said notice, the plaintiff company itself has

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admitted the fraud committed by Sri Shivaramu and Sri Prasannakumar to the extent of Rs.47,300/-. Prima facie, this contention appears to be forceful. But the plaintiff has also produced the FIR i.e., First Information Statement and chargesheet as per Ex.P5. In the First Information Statement given by the plaintiff, the details of fraud committed by said Sri Shivaramu is clarified. It is the case of the plaintiff that after issuing the reply notice as per Ex.D1, they have contacted the customers including the defendant and after making an enquiry, they came to know that no such payments were made either to Sri Shivaramu or Sri. Prasannakumar and therefore, the fraud committed by Sri Shivaramu do not include the payments in respect of the present defendant. In this regard, in the First Information Statement given by the plaintiff on 03.01.2018, the plaintiff has specifically averred as under. But, the plaintiff has also produced the First Information Statement and charge-sheet as per Ex.P5 and in the First Information Statement given by the plaintiff, the details of fraud committed by said Sri Shivaramu is clarified. On enquiry of the customers, no information was given by this defendant and also no document is produced for having made the payment in favour

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of Sri Shivaramu and the same was not included in the chargesheet. It is also discussed by the First Appellate Court that the in the charge-sheet, statement of C.Ws.2 to C.W.27 is enclosed and no amount was paid to said Sri Shivaramu to this defendant and also made it clear that when this defendant did not place any document for having made the payment to the said Sri Shivaramu, even ought to have examined him before the Court for having made the payment and the same is not done except an oral evidence of D.W.1 and no document is also placed before the Court. Hence, not accepted the contention of the appellant and dismissed the appeal.

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This Court while considering the matter for admission, framed the following substantial question of law while admitting the second appeal:

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“Whether both the Courts below committed an error in not considering the document Ex.D1 regarding payment inspite of admission on the part of P.W.1 that there was a reference of payment of Rs.47,300/- in Ex.D1 in the reply notice given to the counsel on record of Marketing Officer and the finding is perverse against the material on record?”

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Having considered the material on record and also

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the grounds urged by learned counsel for the appellant, no doubt, this Court has framed substantial question of law that whether both the Courts below have committed an error in not considering the document Ex.D1 regarding payment, inspite of admission on the part of P.W.1 that there was a reference of payment of Rs.47,300/- in Ex.D1 in the reply notice given to the counsel on record of Marketing Officer and the finding is perverse against the material on record. Having considered the admission on the part of P.W.1 in the cross-examination, not disputed issuance of the notice to the Marketing Officer i.e., Ex.D1, wherein included the list of amount and also having received the amount of Rs.47,300/- in respect of this appellant also and there is a list in this regard. It is the case of the plaintiff that reply was given by the Marketing Officer and also FIR is registered against him, investigation was conducted and this defendant did not appear and placed any material during the course of investigation for having made the payment and Trial Court also taken note of the fact that no specific plea is taken in the written statement that an amount of Rs.47,300/is paid to the Marketing Officer. Hence, comes to the conclusion

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that Ex.D1 itself cannot be considered as the defendant has not at all pleaded regarding the set off in his written statement. No doubt, now need to seek for the relief of set off and if any payment is made and the same is adjustable with the claim made by the plaintiff. It is also observed in paragraph No.17 that the claim in absence of pleadings cannot be accepted and I do not find any error committed by the Trial Court in making such an observation, since in the written statement except stating that they used to purchase the cattle feed and used to make the payment to Marketing Officer and the same cannot be a ground to come to a conclusion that he made the payment.

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It has to be noted that if any such pleading and the same is only an omnibus statement and unless specific plea is taken in the written statement that an amount of Rs.47,300/was paid to the Marketing Officer on a particular date and no document is placed on record, except confronting the document of Ex.D1 to P.W.1. No doubt, learned counsel for the appellant brought to notice of this Court that document of Ex.D1 is confronted and P.W.1 admitted that there was a reference in

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the legal notice in Ex.D1. Though D.W.1 admits that the claim is made excluding the said amount, he also admits that in the plaint, he has not stated the same and not claimed the amount of Rs.47,300/-. This Court has to consider the ledger extract which is produced as Ex.P1 and nowhere in Ex.P1, anything is disclosed for having received the amount of Rs.47,300/- and the appellant only contend that made the payment of Rs.47,300/-, but no document is placed on record and only relying upon the document of issuance of notice and mere issuance of notice to the Marketing Officer cannot be a ground and also it is very specific that no such document is placed and the defendant also did not appear before the Investigating Officer at the time when the case was registered and investigated. When such being the case, when the defendant/appellant did not place any document and only on a mere reference in Ex.D1, it cannot be contended that he made the payment of Rs.47,300/-. The First Appellate Court also while confirming the judgment of the Trial Court, in detail discussed in paragraph No.17 and comes to the conclusion that there is a force in the argument, but comes to the conclusion that the plaintiff has produced Ex.P5 i.e., certified copy of

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charge-sheet and the First Appellate Court also taken note of the FIR. Further, while filing the charge-sheet, the amount of Rs.47,300/- is not included of this defendant and clarified the same that there was no such payment to the Marketing Executive Officer to the tune of Rs.47,300/- by the defendant. When the charges-sheet is clear that an amount of Rs.47,300/is not included in Ex.P5, the First Appellate Court taken note of the same.

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It is also very clear that this defendant did not co-

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operative for enquiry and no such payment was made either to Sri Shivaramu or Sri Prasannakumar and the fraud committed by Sri Shivaramu do not include the payment in respect of the present defendant and the same is taken note by the First Appellate Court and mere taking of defence that defendant made the payment is not enough in the cross-examination, but no specific plea in the written statement, unless the receipt is produced before the Court and there is no any specific plea in the written statement and no evidence for having made the payment and mere mentioning in the complaint that amount was misused by an employee, the same cannot be a ground to

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exonerate the liability of this defendant and there must be a proof with regard to the misappropriation and also for having made payment to the Marketing Officer and no such receipt is produced before the Court. Even, the defendant did not appear before the Police during the course of investigation and while filing of charge-sheet, no such inclusion of the amount of defendant and appellant ought to have placed the receipt before the Court for having made the payment Sri Shivaramu to the tune of Rs.47,300/-. When no such cogent evidence is placed before the Court, question of accepting the contention of the appellant does not arise. Hence, I do not find any ground to come to a conclusion that both the Courts have committed an error in not considering the Ex.D1 and Ex.D1 is not a proof for having made the payment and the same is only a reference with regard to an allegation made against the Marketing Officer and the same cannot be a ground to come to a conclusion that both the Courts have committed an error, in the absence of documentary proof for having made the payment.

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Apart from that, it is the contention that payment was made to the tune of Rs.47,300/- to the Marketing Officer, but Ex.P1 is very clear that even after the said date also, no such payment is made and all the payments are made on different dates in the month of January for four times and in the month of February for five times and also in the month of March for two times in the year 2016 is also included in the ledger extract. Hence. no material proof to come to a conclusion that both the Courts have committed an error. Therefore, I answer the substantial question of law as ‘negative’.

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