Allowed

M/S.Hardi Trebers v. K.S.R.T.C.

Kerala HC11 Dec 2013RFA/79/2006

Case brief

AI extract

What is this about?

In an appeal against a judgment granting a 3-day grace period and 6% interest on unpaid supplies, the High Court held that the lower court erred in modifying the original 10-day contract. The appeal was partly allowed, affirming 6% interest from the notice date but modifying the decree to allow realization of the specific adjusted amount.

What did the court decide?

Appellants allowed to realise `1,61,311/- with interest at 6% per annum from 15/06/1999 till realization, with costs.

M/S.Hardi Trebers Vs K.S.R.T.C. — Company and Corporate | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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WEDNESDAY, THE 11TH DAY OF DECEMBER 2013/20TH AGRAHAYANA, 1935

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RFA.No. 79 of 2006 ( )

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AGAINST THE JUDGMENT and DECREE IN OS 283/1999 of II ADDL.SUB COURT,TRIVANDRUM DATED 19-11-2004 APPELLANT(S)/APPELLANTS/PLAINTIFFS:

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M/S.HARDI TREBERS,A PROPRIETORY CONCERN HAVING ITS OFFICE AT C.15 & 16, INDUSTRIAL ESTATE UMAYANELLOOR, KOLLAM-691589, REP.BY ITS PROPRIETOR M.S.SAJITH KUMAR, AGED 31 YEARS, SON OF K.P.SIVASANKARA PILLAI, RESIDING 2. M.S.SAJITH KUMAR, AGED 31 YEARS, SON OF K.P.SIVASANKARA PILLAI, PROPRIETOR OF M/S.HARDI TREBERS, A PROPRIETORY CONCERN HAVING ITS OFFICE AT C.15 AND 16, INDUSTRIAL ESTATE UMAYANELLOOR, KOLLAM-691589. BY ADVS.SRI.P.B.SURESH KUMAR (SR.) SRI.P.B.SURESH KUMAR (SR.) SRI.LEO GEORGE RESPONDENT(S)/DEFENDANTS:

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M/S.KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM-695023 REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE MANAGING DIRECTOR, M/S.KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN, THIRUVANANTHAPURAM-695023. R, BY ADV. BABU JOSEPH KURUVATHAZHA SC KSRTC R,R1 & R2 BY ADV. SRI.K.PRABHAKARAN, SC, K.S.R.T.C. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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T.R. RAMACHANDRAN NAIR & B.KEMAL PASHA, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ R.F.A.No.79/2006

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~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 11^th day of December, 2013

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J U D G M E N T

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Kemal Pasha, J.

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The plaintiffs before the court below whose suit stands partly

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decreed, have come up in challenge against the denial of the balance

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amount allegedly due to them.

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The suit is for realisation of money. The first plaintiff is a

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proprietary concern of which the second plaintiff is the sole Proprietor. The

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plaintiffs had entered into an agreement with the defendants for the supply of 119 metric tonnes of tread rubber slabs and supplied it through various

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bills. As per the contractual terms, the plaintiffs had offered a cash

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discount of 4% to the defendants, provided 90% of the cost of the materials

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is paid to the plaintiffs within 10 days from the date of the supply. In the

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R.F.A.No.79/2006

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-:2:-

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case of several such supplies made by the plaintiffs, the defendants have

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availed such cash discount facility at the rate of 4%.

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According to the plaintiffs, the defendants had failed to make

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the payment of the cost of such materials supplied in the case of 14

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supplies, which are specifically scheduled in the plaint, within the time limit

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prescribed for the entitlement of such cash discount facility, and, therefore, the defendants are not entitled to the cash discount facility at the rate of

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4%, as far as those supplies are concerned. Therefore, the plaintiffs are

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entitled to recover the amounts illegally deducted by the defendants by way

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of cash discount relating to the said 14 transactions. Further, the

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transactions being commercial in nature, the plaintiffs are claiming interest

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at the rate of 18% per annum on such non payments.

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The defendants contended that the suit is not maintainable

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and there were no delay at all in making the payments. It is also contended

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that the meager delays that had occurred in the case of some supplies

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R.F.A.No.79/2006

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-:3:-

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were due to the latches on the part of the plaintiffs in collecting the

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amounts from the defendants in time. It is also contended that there were

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no timely demands from the part of the plaintiffs for such amounts allegedly

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due.

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The court below found that there is a contract as alleged by

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the plaintiffs, as admitted by the defendants. At the same time, it seems

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that the court below, through the impugned Judgment has given a

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concession by granting cash discount at the rate of 4% on the supplies, in

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cases where such payments were made within three days after the lapse

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of the ten days period originally contained in the contract as, a grace period, thereby the court below disallowed the claims regarding the supplies to 2 to 5, 6, 8 and 10 to 14 in the schedule appended in the plaint.

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The court below has granted interest at the rate of 6% per annum only from

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15/06/1999, i.e., the date of Ext.A3 suit notice till realisation after limiting

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the amount to `29,535/-, with proportionate costs.

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R.F.A.No.79/2006

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-:4:-

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We heard Shri Leo George learned counsel for the appellants,

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and Shri Babu Joseph Kuruvathazha, the learned Standing Counsel for the

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K.S.R.T.C.

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According to the learned counsel for the appellants, the court

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below could not have incorporated any such term in the contract, which

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was not mutually agreed upon between the parties. The learned Standing Counsel for the respondents has mainly argued that it was only because of

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the latches on the part of the representatives of the appellants, that the

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payments were not collected in time, which had resulted in the delay.

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As rightly pointed out by the learned counsel for the

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appellants, the court below could not have incorporated a fresh term in the contract which did not originally find a place in the contract between the

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parties. When the grace period was fixed as 10 days for payment in the original contract, there was no reason for the court below to extend the

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grace period by three more days. Matters being so, we are of the view that

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R.F.A.No.79/2006

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the said extension in the grace period granted by the court below is

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incorrect.

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Regarding the rate of interest, even though the learned counsel for the appellants has claimed that, the transaction being commercial in nature, the appellants are entitled to interest at the rate of 18% per annum, we do not see any contractual rate of interest fixed by the parties in the contract. When one of the 14 transactions is in the year 1996

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and all the other 13 transactions were in the year 1997, we think it appropriate to fix the interest at the minimum 6% per annum. The appellants are entitled to get the interest on such supplies at the rate of 6%

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per annum from the date of Ext.A3 notice till the date of its payment.

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Matters being so, the Judgment and decree passed by the

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court below require modification to that effect.

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In the result, this appeal is allowed in part and the Judgment

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and Decree passed by the court below are modified as follows:

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R.F.A.No.79/2006

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The appellants are allowed to realise an amount of `1,61,311/- with

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interest at the rate of 6% per annum from 15/06/1999 till the date of

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realisation, with cost of the suit as well as cost of the appeal, from the first

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defendant.

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Sd/-

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(T.R. Ramachandran Nair, Judge)

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Sd/-

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(B.Kemal Pasha, Judge)

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M/S.Hardi Trebers v. K.S.R.T.C.

Case brief

What is this about?

What did the court decide?

M/S.Hardi Trebers v. K.S.R.T.C.

Case brief

What is this about?

What did the court decide?

What the court decided

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