UNIT HEAD vs M/S CAUVERY CORPORATION
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ST
DATED THIS THE 21 DAY OF SEPTEMBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
REGULAR SECOND APPEAL NO. 1744 OF 2017 (MON)
BETWEEN:
UNIT HEAD
KARNATAKA STATE AGRO
CORPORATION PRODUCTS LIMITED (KSACP)
CHITRADURGA – 577 536.
…APPELLANT
(BY SMT. APARNA.N, FOR
SRI. PURUSHOTHAM.R, ADVOCATES)
AND:
M/S CAUVERY CORPORATION
JAGGERY MERCHANTS
& COMMISSION AGENTS
NEHRUNAGAR
MANDYA-571401
REP BY ITS PROPRIETRIX
SMT MUMTAZ BEGUM
…RESPONDENT
(RESPONDENT – SERVED)
Digitally
signed by
VANDANA S
Location:
High Court
of Karnataka
THIS RSA IS FILED UNDER SEC. 100 OF CPC., AGAINST THE
JUDGEMENT AND DECREE DATED 28.04.2017 PASSED IN RA NO.27/2016
ON THE FILE OF THE II ADDL.DISTRICT AND SESSIONS JUDGE, MANDYA
PARTLY ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND
DECREE DATED 29.02.2016 PASSED IN OS NO.242/2003 ON THE FILE OF
THE I ADDL.SENIOR CIVIL JUDGE AND CJM., MANDYA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL JUDGMENT
The appellant was the defendant in O.S. No. 242/2003 filed
by the respondent as plaintiff for recovery of a sum of Rs.3,32,432/-
together with interest at 18% p.a. and for other reliefs. The said
suit having been contested by the appellant-defendant, the trial
Court proceeded to pass a judgment and decree dated 29.02.2016
dismissing the suit of the respondent-plaintiff who approached the
first appellate Court in R.A. No. 27/2016 which was partly allowed
by the first appellate Court which set aside the judgment and
decree of the trial Court and partly decreed the suit of the plaintiff
by directing the appellant-defendant to pay a sum ofRs.1,32,022.15
together with interest at 8% p.a. from the date of the suit till
realisation. Aggrieved by the impugned judgment and decree
passed by the fist appellate court, the appellant-defendant is before
this Court by way of the present appeal.
2. Heard learned counsel for the appellant and perused the
material on record. The respondent having been served with
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notice of the appeal has chosen to remain unrepresented and has
not contested the appeal.
3. Learned counsel for the appellant would reiterate the various
contentions urged in the appeal and refer to the material on record
in order to contend that the first appellate Court committed an error
in decreeing the suit of the respondent-plaintiff in part by coming to
the incorrect conclusion that the tender application at Ex.D.1 filed
by the plaintiff and accepted by the defendant was not an
agreement between the parties and that there was no written
agreement between them thereby erroneously upholding the claim
of the plaintiff. It was contended that the first appellate Court erred
in holding that the terms and conditions of Ex.D.1 were not
applicable for the purpose of partly decreeing the suit in favour of
the respondent-plaintiff by improper and erroneous appreciation of
the material on record and as such the impugned judgment and
decree of the first appellate Court deserves to be set aside and the
appeal filed by the respondent was liable to be dismissed.
4. As stated supra, the respondent-plaintiff who was the
appellant before the first appellate Court having been served with
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notice of the present appeal has chosen to remain unrepresented
and has not contested the appeal.
5. A perusal of the material on record will indicate that the
plaintiff claims to be a merchant and commission agent dealing in
business of jaggery and pursuant to a tender called for by the
appellant, the contract was awarded to a merchant at Davanagere
who did not make the requisite supply to the appellant-defendant
who approached the plaintiff in pursuance of which an oral
agreement was entered into between the plaintiff and defendant
pursuant to which the plaintiff consigned and delivered 49 loads of
jaggery during the period 26.09.2000 to 15.02.2001 and towards
the said supply made by the plaintiff to the defendant, a sum of
Rs.1,87,747.15 was due to be paid by the defendant to the plaintiff
and since the said payment was not made, the defendant was
liable to pay interest at 18% p.a. together with other charges
totaling to Rs.3,32,432/- payable by the defendant to the plaintiff
who instituted the aforesaid suit.
6. Per contra, the defendant disputed and denied the various
allegations and claim made by the plaintiff and contended that
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there was no agreement between the plaintiff and defendant in
respect of the suit transaction. It was contended that the plaintiff
had agreed to supply jaggery to the defendant at Rs.950/- per
quintal inclusive of all freight charges, entry charges, transportation
charges, hire charges, loading and unloading charges, etc. in
respect of which payment had already been made by the defendant
to the plaintiff. It was also contended that in order to avoid losses
in production, defendant had purchased 126.840 metric tons of
jaggery worth about Rs.1,11,100/- and Rs.19,442.15 was deducted
on account of loss in the weight of quantity of consignment
supplied by the plaintiff in accordance with law and the entire
amount due to the plaintiff having been paid, the defendant was not
due to any sum nor interest whose suit was liable to be dismissed.
7. It is a matter of record and an undisputed fact that the power
of attorney holder of the plaintiff was examined as PW1 and
documentary evidence at Exs.P.1 to P.56 were marked while DW1
was examined on behalf of the defendant and documentary
evidence at Exs.D.1 to D.334 were marked on its behalf in
pursuance of which the trial Court dismissed the suit of the plaintiff
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despite the material on record clearly indicating that after taking
accounts and scrutiny of the records produced by both sides, a
sum of Rs.1,32,022.15 was due by the defendant to the plaintiff. It
is under these circumstances, that the first appellate Court
considered and appreciated the pleadings and evidence of the
parties and examined, appreciated and scrutinized the material on
record and recorded a finding of fact that the aforesaid sum of
Rs.1,32,022.15 was due by the defendant to the plaintiff by holding
as under:
8. On the basis of above pleadings, the trial court has framed the
following issues;
1. Whether the plaintiff proves that defendant corporation
illegally with held Rs.1,87,747.15/- under 5 different heads as
narrated in para 6 of the plaint?
2. Whether plaintiff is entitled for interest at 18% p.a.
towards damages?
3. Whether this court has got territorial jurisdiction to try
the suit?
4. Whether plaintiff is entitled for suit claims?
5. What order or decree?
9. In order to prove plaintiff’s case, the plaintiff’s proprietress by
name Smt.Mumtaz Begum has got examined her Power of Attorney
Holder by name M.S.Nagaraju as PW.1 and got exhibited 56
documents viz., Ex.P1–Power of Attorney, Ex.P2-Letter, Ex.P3-Reply
notice, Ex.P4-Notice, Ex.P5-Statement, Ex.P6 to Ex.P52-47 Stock
Receipt Note, Ex.P53-Statement, Ex.P54-Reply notice, Ex.P55-Letter
and Ex.P56-Letter. Per contra, defendant got examined one
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M.K.Jayaramu as DW.1 and got exhibited 446 documents viz., Ex.D1-
Tender Notice, Ex.D2-Letter of Power of Attorney, Ex.D3-Purchase
Order dated 20/09/2000, Ex.D4-Purchase Order dated 29/09/2000,
Ex.D5-Purchase Order dated 09/11/2000, Ex.D6-Purchase Order
dated 13/11/2000, Ex.D7-Purchase Order dated 21/11/2000, Ex.D8-
Purchase Order dated 05/12/2000, Ex.D9-Purchase Order dated
20/12/2000, Ex.D10-Purchase Order dated 01/01/2001, Ex.D11-
Purchase Order dated 12/01/2000, Ex.D.12-Purchase Order dated
22/01/2000, Ex.D.13-Jaggery Supply Bill dated 27/09/2000, Ex.D14-
D.D for the supply of Jaggery, Ex.D15-Bank’s Counterfoil, Ex.D16-
Scan Receipt dated 27.09.2000, Ex.D17-Laboratory Report, Ex.D18-
Voucher, Ex.D19-Bill of Settlement, Ex.D20-Payment Letter dated
25/10/200, ex.D.21-Invoice dated 30/09/2000 for supply of Jaggery,
Ex.D.22-Xerox copy of D.D., Ex.D23-Counterfoil, Ex.D24-Stock
Receipt Note, Ex.D25-Laboratory Report, Ex.D26-Voucher, Ex.D27-
Statement of Bill Settlement, Ex.D28-Payment Letter dated
06/11/2000, Ex.D29-Invoice dated 04/10/2000, Ex.D30-Xerox Copy
of DD, Ex.D31-Counterfoil, Ex.D32-Letter dated 10/11/2000, Ex.D33-
Stock Receipt Note dated 04/10/2000, Ex.D34-Laboratory Report,
Ex.D35-Receipt, Ex.D36-Payment Letter, Ex.D37-Payment Letter
dated 10/11/2000, Ex.D38-Invoice dated 07/10/2000, Ex.D39-
Counterfoil, Ex.D40-Xerox copy of D.D., Ex.D41-D.D payment Letter,
Ex.D42-Stock Receipt Note, Ex.D43-Laboratory Report, Ex.D44-
Receipt, Ex.D45-Statement of Payment Receipt, Ex.D46-Payment
Letter dated 16/11/2000, Ex.D47-Invoice dated 18/10/2000, Ex.D48-
Counterfoil, Ex.D49-Xerox Copy of D.D, Ex.D50-D.D Payment letter,
Ex.D51-Stock Receipt Note, Ex.D52-Laboratory Report, Ex.D53-
Letter of Weight of Jaggery, Ex.D54-Letter of Bill Payment, Ex.D55-
Payment Letter dated 21/11/2000, Ex.D56-Invoice dated
13/11/2000, Ex.D57-Invoice dated 10/11/2000, Ex.D58-Invoice
dated 07/11/2000, Ex.D59-Counterfoil, Ex.D60-Xerox copy of D.D,
Ex.D61-Letter of Transfer of D.D, Ex.D62-Stock Receipt Note,
Ex.D63-Laboratory Report, Ex.D64-Letter of Weight of Jaggery,
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Ex.D65-Payment Details, Ex.D66-Stock Details, Ex.D67-Laboratory
Report, Ex.D68-Letter of Weight of Jaggery, Ex.D69-Payment Details,
Ex.D70-Stock Receipt note, Ex.D71-Laboratory Report, Ex.D72-
Receipt of Weight of Jaggery, Ex.D73-Payment Details, Ex.D74-
Payment Letter dated 30/12/2000, Ex.D75-Invoice dated
14/11/2000, Ex.D76-Invoice dated 17/11/2000, Ex.D77-Receipt of
weight of Jaggery, Ex.D78-Xerox copy of D.D, Ex.D79-Counterfoil,
Ex.D80-Stock Receipt Note, Ex.D81-Laboratory Report, Ex.D82-
Statement of Bill Settlement, Ex.D83-Stock Receipt Note, Ex.D84-
Laboratory Report, Ex.D85-Receipt of Weight of Jaggery, Ex.D86-
Payment Receipt, Ex.D87-Payment Letter dated 03/01/2001, Ex.D88-
Invoice dated 18/11/2000, Ex.D89-Counterfoil, Ex.D90-Xerox copy of
D.D, Ex.D91-Letter of Transfer of D.D, Ex.D92-Stock Receipt Note,
Ex.D93-Laboratory Report, Ex.D94-Receipt of Weight of Jaggery,
Ex.D95-Statement of Bill Settlement, Ex.D96-Payment Letter dated
11/01/2001, Ex.D97-Invoice dated 22/11/2001, Ex.D98-Invoice
dated 23/11/2000, Ex.D99-Invoice dated 23/11/2000, Ex.D100-
Invoice dated 27/11/2000, Ex.D101-Xerox Copy of D.D., Ex.D102-
Counterfoil, Ex.D103-Letter of Transfer of D.D, Ex.D104-Stock
Receipt Notice, Ex.D105-Laboratorty Report, Ex.D106-Letter of
Weight of Jaggery, Ex.D107-Statement of Bill settlement, Ex.D108-
Stock Receipt Note, Ex.D109-Laboratory Report, Ex.D110-Receipt of
weight of Jaggery, Ex.D111-Statement of Bill Settlement, Ex.D112-
Stock Receipt note, Ex.D113-Laboratory Report, Ex.D114-Report of
Weight of Jaggery, Ex.D115-Statement Bill Settlement, Ex.D116-
Receipt of Weight of Jaggery, Ex.D117-Stock Receipt note, Ex.D118-
Laboratory report, Ex.D119-Statement of Bill Settlement, Ex.D120-
Payment letter dated 12/01/2001, Ex.D121-Invoice dated
01/12/2000, Ex.D122-Invoice dated 04/12/2000, Ex.D123-Invoice
dated 04/12/2000, Ex.D124-Invoice dated 05/12/2000, Ex.D125-
Invoice dated 28/11/2000, Ex.D126-Xerox Copy of D.D, Ex.D127-
Counterfoil, Ex.D128-Stock Receipt Note, Ex.D129-Laboratory
Report, Ex.D130-Letter of Weight of Jaggery, Ex.D131-Statement of
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Bill Settlement, Ex.D132-Receipt of Weight of jaggery, Ex.D133-
Stock Receipt Note, Ex.D134-Laboratory Report, Ex.D135-Statement
of Bill Settlement, Ex.D136-Stock Receipt note, Ex.D137-Laboratory
Report, Ex.D138-Receipot for Weight of Jaggery, ex.D139-Statement
of Bill Settlement, Ex.D140-Stock Receipt Note, Ex.D141-Laboratory
Report, Ex.D142-Receipt for Weight of Jaggery, Ex.D143-Statement
of Bill Settlement, Ex.D144-Stock Receipt note, Ex.D145-Laboratory
Report, Ex.D146-Receipt for Weight of Jaggery, Ex.D147-Statement
of Bill Settlement, Ex.D148-Payment Letter, Ex.D149-Invoice dated
06/12/2000, Ex.D150-Xerox copy of D.D, Ex.D151-Counterfoil,
Ex.D152-Letter of D.D Transfer, Ex.D153-Stock Receipt note,
Ex.D154-Laboratory Report, Ex.D155-Receipt for Weight of Jaggery,
Ex.D156-Statement of Bill Settlement, Ex.D157-Payment Letter,
Ex.D158-Invoice dated 07/12/2000, Ex.D159-Xerox copy of D.D,
Ex.D160-Counterfoil, Ex.D161-Receipt for D.D Transfer, Ex.D162-
Stock Receipt Note, Ex.D163-Laboratory Report, Ex.D164-Receipt for
Weight of Jaggery, Ex.D165-Statement for Bill Settlement, Ex.D166-
Payment Letter, Ex.D167-Invoice dated 19/12/2000, Ex.D168-
Invoice dated 21/12/2000, Ex.D169-Invoice dated 21/12/2000,
Ex.D170-Xerox copy of D.D, Ex.D171-Counterfoil, Ex.D172 & 173-
Receipt for transfer of D.D, Ex.D174-Stock Receipt Note, Ex.D175-
Laboratory Report, Ex.D176-Receipt for Weight of jaggery, Ex.D177-
Statement of Bill Settlement, Ex.D178-Stock Receipt note, Ex.D179-
Laboratory Report, Ex.D180-Receipt for Weight of Jaggery, Ex.D181-
Statement of Bill Settlement, Ex.D182-Stock Receipt Note, Ex.D183-
Receipt for Weight of Jaggery, Ex.D184-Laboratory Report, Ex.D185-
Statement of Bill Settlement, Ex.D186-Payment Letter, Ex.D187-
Invoice dated 06/01/2001, Ex.D188-Invoice dated 01/01/2001,
Ex.D189-Counterfoil, Ex.D190-Xerox copy of D.D, Ex.D191-Letter of
Transfer of D.D, Ex.D192-Stock Receipt Note, Ex.D193-Receipt for
weight of jaggery, Ex.D194-Laboratory Report, Ex.D195-Statement
of Bill Settlement, Ex.D196-Stock Receipt Note, Ex.D197-Receipt for
Weight of Jaggery, Ex.D198-Laboratory Report, Ex.D199-Statement
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of Bill Settlement, Ex.D200-Payment Receipt, Ex.D201-Invoice dated
22/12/2000, Ex.D202-Invoice dated 26/12/2000, Ex.D203-Invoice
dated 29/12/2000, Ex.D204-Invoice dated 29/12/2000, Ex.D205-
Counterfoil, Ex.D206-Xerox copy of D.D, Ex.D207-Letter of D.D
transfer, Ex.D208-Stock Receipt Note, Ex.D209-Laboratory Report,
Ex.D210-Receipt for Weight of Jaggery, Ex.D211-Statement of Bill
Settlement, Ex.D212-Stock Receipt Note, Ex.D213-Laboratory
Report, Ex.D214-Receipt for Weight of Jaggery, Ex.D215-Payment
Details, Ex.D216-Stock Receipt Note, Ex.D217-Laboratory Report,
Ex.D218-Receipt for Weight of Jaggery, Ex.D219-Statement of Bill
Settlement, Ex.D220-Stock Receipt Note, Ex.D221-Laboratory
Report, Ex.D222-Receipt for Weight of Jaggery, Ex.D223-Payment
Details, Ex.D224-Payment Letter, Ex.D225-Invoice dated
09/01/2001, Ex.D226-Counterfoil, Ex.D227-Xerox copy of D.D,
Ex.D228- Letter of D.D Transfer, Ex.D229-Stock Receipt Note,
Ex.D230-Receipt for Weight of Jaggery, Ex.D231-Laboratory Report,
Ex.D232-Receipt for Weight of Jaggery, Ex.D233-Payment Letter,
Ex.D234-Invoice dated 11/01/2001, Ex.D235-Invoice dated
10/01/2001, Ex.D236-Xerox copy of D.D, Ex.D.237-Counterfoil,
Ex.D238-Stock Receipt Note, Ex.D239-Laboratory Report, Ex.D.240-
Receipt for Weight of Jaggery, Ex.D241-Details of Bill Payments,
Ex.D242-Stock Receipt Note, Ex.D243-Laboratory Report, Ex.D.244-
Receipt for Weight of Jaggery, Ex.D245-Details of Bill Payments,
Ex.D246-Payment Letter, Ex.D247 to Ex.D249-Invoice date
11/01/2001, 12/01/2001 & 17/01/2001, Ex.D.250-Xerox Copy of
D.D, Ex.D.251-Counterfoil, Ex.D.252-Stock Receipt Note, Ex.D253-
Laboratory Report, Ex.D.254-Receipt for Weight of Jaggery, Ex.D256-
Receipt for Weight of Jaggery, Ex.D257-Stock Receipt Note, Ex.D258-
Laboratory Report, Ex.D259-Receipt for Weight of Jaggery, Ex.D.260-
Stock Receipt Note, Ex.D261-Laboratory Report, Ex.D262-Receipt for
Weight of Jaggery, Ex.D263-Payment report, Ex.D264-Payment
Letter, Ex.D265 to 270-Invoices dated 12/01/2001, 19/01/2001,
20/01/2001, 24/01/2001, 27/01/2001 & 31/01/2001, Ex.D271-Xerox
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copy of D.D, Ex.D272-Counterfoil, Ex.D273-Stock Receipt Note,
Ex.D274-Laboratory Report, Ex.D275-Receiot for Weight of Jaggery,
Ex.D276-Details of Bill payment, Ex.D277-Stock Receipt note,
Ex.D278-Laboratory Report, Ex.D279-Receiot for Weight of Jaggery,
Ex.D280-Details of Bill Payment, Ex.D281-Laboratory Report,
Ex.D282-Stock Receipt Note, Ex.D283-Receipt for Weight of Jaggery,
Ex.D284-Details of Bill Payment, Ex.D285-Stock Receipt note,
Ex.D286-Laboratory Report, Ex.D287-Receiot for weight of Jaggery,
Ex.D288-Details of Bill payment, Ex.D289-Stock Receipt Note,
Ex.D290-Laboratory Report, Ex.D291-Receipt for weight of Jaggery,
Ex.D.292-Details of Bill Payment, Ex.D293-Stock Receipt Note,
Ex.D294-Laboratory report, Ex.D295-Receipt for Weight of Jaggery,
Ex.D296-details of Bill payment, Ex.D297-Payment letter, Ex.D298 to
300-Invoices dated 03/02/2001, 03/02/2001 & 06/02/2001,
Ex.D301-Xerox copy of D.D, Ex.D302-Coujnterfoil, Ex.D303-Stock
Receipt Note, Ex.D304-Laboratory Report, Ex.D305-Receipt for
Weight of Jaggery, Ex.D306-Payment Details, Ex.D307-Stock Receipt
Note, Ex.D308-Laboratory report, Ex.D309-Receipt for Weight of
Jaggery, Ex.D310-Payment Details, Ex.D311-Stock Receipt Note,
Ex.D312-Laboratory Report, Ex.D313-Report for Weight of jaggery,
Ex.D314-Payment Details, Ex.D315-Payment Letter, Ex.D316 to 318-
Invoices dated 16/02/2001, 15/02/2001 & 12/02/2001, Ex.D319-
Xerox copy of D.D, Ex.D320-Counterrfoil, Ex.D321-D.D Transfer
letter, Ex.D322-Stock Receipt Note, Ex.D323-Lab Report, Ex.D.324-
Receipt for Weight of Jaggery, Ex.D325-Payment Details, Ex.D326-
Stock Receipt Note, Ex.D327-Lab Report, Ex.D328-Report for Weight
of Jaggery, Ex.D329-Payment Details, Ex.D330-Stock Receipt Note,
Ex.D331-Lab Report, Ex.D332-Details for Weight of Jaggery,
Ex.D333-Payment Details, Ex.D.334-Payment Letter, Ex.D335-Letter
from Syndicate Bank, Ex.D336-Letter dated 26/09/2000, Ex.D337-
Letter dated 28/09/2000, Ex.D338-Letter dated 28/09/2000,
Ex.D339-Letter dated 29/09/2000, Ex.D340-Letter dated
30/09/2000, Ex.D341-Letter dated 06/10/2000, Ex.D342-Letter
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dated 09/10/2000, Ex.D343-Letter dated 11/10/2000, Ex.D344-
Letter dated 30/10/2000, Ex.D345-Letter dated 08/11/2000,
Ex.D346-Letter dated 10/11/2000, Ex.D347-Letter dated
14/11/2000, Ex.D348-Letter dated 16/11/2000, Ex.D349-Letter
dated 16/12/2000, Ex.D350-Letter dated 22/12/2000, Ex.D351-
Purchase Order dated 22/09/2000, Ex.D352-Purchase Order dated
24/10/2000, Ex.D353-Purchase Order dated 27/10/2000, Ex.D354-
Purchase Order dated 24/10/2000, Ex.D355-Purchase Order dated
24/10/2000, Ex.D356-D.D. Transfer Letter dated 13/11/2000,
Ex.D357-Stock Receipt Note, Ex.D358-Laboratory Report, Ex.D359-
Weight Receipt dated 11/10/2001, Ex.D360-Letter dated
11/10/2000, Ex.D361-Statement of Bill Settlement, Ex.D362-Challan,
Ex.D363-Payment Letter dated 13/11/2000, Ex.D364-D.D Transfer
Letter dated 10/11/2000, Ex.D365-Bank Challan, Ex.D366-Stock
Receipt Note dated 09/10/2000, Ex.D367-Lab Report dated
09/10/2000, Ex.D.368-Weight Receipt, Ex.D369-Challan dated
09/10/2000, Ex.D370-Statment of Bill Settlement, Ex.D371-Payment
Letter dated 10/11/2000, Ex.D372-Letter dated 10/10/2001,
Ex.D373-Payment Letter dated 11/10/2000, Ex.D374-Challan,
Ex.D375-D.D. Transfer Letter dated 21/11/2000, Ex.D376-Transfer
Notice, Ex.D377-Lab Report, Ex.D378-Weight Bill, Ex.D379-Letter
from Shakthi Traders dated 12/10/2000, Ex.D380-Statment of Bill
Settlement, Ex.D381-Letter from Shakthi Traders dated 11/10/2000,
Ex.D382-Letter dated 21/11/2000, Ex.D383-Transfer Letter dated
04/12/2000, Ex.D384-stock Receipt Note dated 24/10/2000,
Ex.D385-Laboratory Report, Ex.D386-Bill dated 23/10/2000,
Ex.D387-Statement, Ex.D388-Stock Receipt Note dated 31/10/2000,
Ex.D389-Laboratory Report dated 31/10/2000, Ex.D390-Weight Bill,
Ex.D391-Bill dated 30/10/2000, Ex.D392-Bill, Ex.D393-Bank Challan
dated 04/12/2000, Ex.D394-Payment Letter dated 04/12/2000,
Ex.D395-Transfer Letter dated 04/12/2000, Ex.D396-Letter dated
24/10/2000, Ex.D397-Stock Receipt Note dated 25/10/2000,
Ex.D398-Laboratory Report dated 25/10/2000, Ex.D399-Weight Bill
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dated 25/10/2000, Ex.D400-Report, Ex.D401-Payment Letter dated
04/12/2000, Ex.D402-Challana Dated 04/12/2000, ExD403-Transfer
Letter dated 04/12/200, Ex.D404-Stcok Receipt Note, Ex.D405-Letter
dated 30/10/2000 Ex.D.4065-Weight Bill dated 31/10/2000,
Ex.D407-Laboratory Report dated 31/10/2000, Ex.D408-Report,
Ex.D409-Bank Challan dated 20/12/2000, Ex.D410-Payment Letter
dated 20/12/2000, Ex.D411-Transfer Letter dated 04/12/2000,
Ex.D412-Stock Receipt Note, Ex.D413-Laboratory Report, Ex.D414-
Weight Bill dated 31/10/2000, Ex.D415-Cash Bill dated 03/11/2000,
Ex.D416-Payment Details, Ex.D417-Challan dated 04/12/2000,
Ex.D418-Payment Letter dated 04/12/2000, Ex.D419-Transfer Letter
dated 21/11/2000, Ex.D420-D.D dated 21/11/2000, Ex.D421-Stock
Receipt Note, Ex.D422-Lab Report dated 23/10/2000, Ex.D423-
Weight Bill, Ex.D424-Bill dated 25/10/2000, Ex.D425-Payment
Report, Ex.D426-Stock Receipt note, Ex.D427-Weight Note, Ex.D428-
Lab Report dated 24/10/2000, Ex.D429-Bill dated 24/10/2000,
Ex.D430-Payment report, Ex.D431-Stock Receipt Note dated
25/10/2000, Ex.D432-Laboratory Report dated 25/10/2000,
Ex.D433-Bill dated 27/10/2000, Ex.D434-Weight Bill dated
25/10/2000, Ex.D435-Payment Report, Ex.D436-Payment Letter
dated 21/11/2000, Ex.D437-Letter dated 08/10/2000, Ex.D438-
Payment Letter dated 09/10/2000, Ex.D439-Bank Challan dated
10/11/2000, Ex.D440-Transfer Letter dated 10/11/2000, Ex.D441-
Stock Receipt Notice, Ex.D442-Laboratory Report dated 10/10/2000,
Ex.D443-Weight Bill dated 10/10/2000, Ex.D444-Letter dated
09/10/2000, Ex.D445-Bill Settlement Statement and Ex.D446-
Payment Letter dated 10/11/2000.
10. The trial court on appreciating the oral and documentary
evidence on record, and hearing the learned counsel for parties, has
answered the issue No.3 in the Affirmative, issue Nos.1, 2 & 4 in the
Negative, and on issue No.5 passed the final order and thereby
dismissed the suit with costs.
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11. Aggrieved plaintiff has challenged the judgment and decree
before this court on the following material grounds;
I. The trial court having clearly held that the contract
between the parties is based upon Ex.P1 to P3 letters
ought to have decreed the suit so far as the payments
may beyond the agreed 25 days. Though the trial court
held that the plaintiff is entitled to have interest for the
delay period, should have decreed the suit on this head
only,
II. The learned trial court having upheld the fact that the
plaintiff is entitled for the interest as damages, failed to
award the same while passing the final order,
III. The trial court having upheld that the plaintiff is
entitled to have the deductions made by the defendant
towards quality of the goods supplied, failed to pass the
final order accordingly,
IV. The trial court having upheld the fact that the
Ex.D1/the tender application cannot be treated as terms
and conditions for this contract, erred in not applying
this fact in the final order, and
V. Though the trial court had upheld all the
contentions of the plaintiff in the body of the judgement,
it had erroneously recorded its findings negatively on the
issue Nos.1, 2 & 4.
12. Trial court records are secured. I have heard the learned
counsel appearing for the appellant/plaintiff and respondent /
defendant, and perused the records in detail.
13. Now the following points would arise for my determination.
: P O I N T S :
1. Whether the plaintiff/appellant has proved that it
has entitled for the entire amount as claimed?
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2. Whether the impugned judgment and decree calls
for interference by this court?
3. To what decree or order?
14. My findings to the above said points are as follows:
Point No.1 : Partly in the affirmative,
Point No.2 : In the affirmative, &
Point No.3 : As per final order, for the following;
R E A S O N S
15. Point Nos.1 & 2 :- For the sake of convenience, these two
points are taken up together for discussion.
16. Prior to discussion on these two points, it is pertinent to note
that the trial court has territorial jurisdiction to try the suit.
Accordingly, the trial court has given its finding on issue No.3. I do
concede with the observations made by the learned trial judge on
this issue. Admittedly, there is no cross-appeal or cross-objection by
the respondent/defendant on this issue, and hence, the finding of the
learned trial judge regarding territorial jurisdiction reaches finality.
17. Though the testimonies of PW.1-M.S.Nagaraj for
appellant/plaintiff and DW.1-M.K.Jayaramu for respondent
/defendant are available on record, both are in confusion during their
cross-examination by the opposite party. So, their oral evidence
cannot be taken into consideration.
18. Ex.D1-Tender notification No.KSACP/CDM/TENDER/ 2000-01
dated 25/08/2000 is not an agreement between the
appellant/plaintiff and respondent/defendant. For the reasons best
known to the respondent/defendant, there are no materials on record
as to who is the successive bidder and with whom it has entered into
agreement finally. But, on the basis of Ex.D1-Tender Notification,
transaction had been taken place between the appellant/plaintiff and
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respondent/defendant. As said earlier, Ex.D1 is not at all an
agreement and it does not bind the parties. So, it cannot be looked
into to decide the controversy between the parties. Besides, Ex.D345
and D346-Letters written by the respondent/defendant to the
appellant/plaintiff also indicate, there was no agreement between the
parties regarding the suit transaction.
19. The courts of law in our country do not recognize oral
agreement. So, any agreements entered into between the plaintiff
and defendant orally, does not merit any discussion. On this score
itself, the case of the plaintiff as well as defence of the defendant
appears to be not fair. In detail, the defendant being a unit of the
Government, how it had proceeded to deal with the plaintiff without
any written-agreement, why it had not disclose the
successive/highest bidder on the basis of Ex.D1, why it had dealt
with the appellant/plaintiff and what is the idea behind it, are all in
the darkness. Likewise, there are no explanation for these
questions/doubts from the appellant/plaintiff’s side also. Anyhow, one
thing is clear, when the differences arose between the parties, the
appellant/plaintiff approached the court. Unfortunately, both parties
conduct in dealing with the transaction is not fair. Even though, I
feel, it is the duty of the court to solve controversy on the basis of
relevant documents which appear material and dispose this appeal.
20. It is not in dispute that the statement of
respondent/defendant dated 07/02/2002 shows the deductions which
is due for the appellant/plaintiff as under:
Sl. No. Particulars Amount
1. Payment of entry tax 46,471.00
2. Quantity deduction 19,442.15
3. Bank charges 9,354.00
4. Freight handling 27,025.00
5. Remarks 85,455.00
Total 1,87,747.15
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Though the appellant/plaintiff admits this calculation of
Rs.1,87,747.15/- approximately, its contention is that deduction of
this amount by the respondent/defendant is illegal. So, it claims
balance as under;
1. Balance of amount deducted 1,87,654.65
2. Interest for the delayed payment
made by the defendant towards
the bills
69,813.25
3. Interest on Rs.1,87,654.65 @ 18% 75,364.06
till date
4. Typing and Miscellaneous expenses 100.00
Total 3,32,432.00
21. Ex.P1 is the Special Power of Attorney executed by
Smt.Mumtaz Begum, Proprietress of appellant/plaintiff in favour of
one M.S.Nagaraj in order to conduct this suit and it is not in dispute.
Ex.P2 is the letter of indication by the appellant /plaintiff indicating
its willingness to supply jaggery at Rs.950/- per quintal and it also
says amount should be made within 25 days. Ex.P3 is the acceptance
of the offer made by the appellant / plaintiff by the
respondent/defendant as per Ex.P2. Against these three documents
and other documents, it is not possible to say that the
appellant/plaintiff has accepted to pay entry tax. However, in
general, it is the burden on the seller to bear the freight charges,
entry charges, transportation charges, loading and unloading charges
and other hire charges; in toto, all the charges until the delivery of
the goods to the possession of buyer. Against this backdrop, it can be
said that the appellant/plaintiff is not entitled for payment of entry
tax i.e., Rs.46,471/-.
22. As far as the claim of bank charges are concerned, the
appellant / plaintiff claims Rs.9,354/-. According to its contention, it
has demanded to pay the amount through cheques, alternatively,
respondent/defendant has been paying the amount through DDs all
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along the transaction. On perusal of claim, one can understand that
while taking the DD at the bank for the appellant/plaintiff,
respondent/defendant has deducted the DD charges and send the
amount. Even if amount would have been sent through cheques,
some meager-amount was being deducted while honouring the
cheque amount. Such being the case, there is no difference in the
attitude of respondent/defendant. Anyhow, there is no agreement
about this point and hence, the appellant/plaintiff is not entitled bank
charges of Rs.9,354/-.
23. When the appellant/plaintiff had failed to supply the goods/
jaggery, respondent/defendant made arrangement to buy the same
from others. So, for inconvenience and for difference in rate, it has
deducted Rs.27,025/-. As said earlier, there is no agreement for this,
so, respondent/defendant has no right to deduct this amount.
Consequently, appellant/plaintiff is entitled for this amount.
24. On the head – “Quantity deduction”, the respondent /
defendant has deducted an amount of Rs.19,442.15. For this, it is
depending upon the laboratory report. Admittedly, lab-report was not
intimated earlier. Besides, it was not noted in the concerned
S.R.Notes. Hence, deduction of this amount by the
respondent/defendant is not fair. So, appellant/plaintiff is entitled for
this amount of Rs.19,442.15.
25. The respondent/defendant deducted an amount of
Rs.85,455/- under the head – “Remarks”. There are no reasons for
these remarks. So, deducting this amount under the head –‘Remarks’
appears to be ridiculous. So, the plaintiff is entitled for this amount of
Rs.85,455/-.
26. In view of my observations as supra, the plaintiff is entitled an
amount of Rs.1,31,922.15. In addition to this, the appellant/plaintiff
has claimed an amount of Rs.69,813.25 for delayed payment. For
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this calculation, there is no proper explanation in the plaint. So,
interest of Rs. Rs.69,813.25 for the delayed payment is ignored.
Moreover, the appellant/plaintiff has also claimed interest at the rate
of Rs.18% on its claim. Since, there is no agreement and hence, it
cannot be awarded. As claimed Rs.100/- is awarded towards typing
and miscellaneous expenses. So, in toto, the plaintiff is entitled for
Rs.1,32,022.15. In addition to this, as per Section 34 of the CPC, I
intend to award Rs.8% p.a. on this amount of Rs.1,32,022.15 from
the date of suit till its realisation in full. Besides, only for this amount
of Rs.1,32,022.15, the plaintiff is entitled for court costs. In other
words, plaintiff is entitled for proportionate costs on the amount of
Rs.1,32,022.15 before the trial court.
27. In view of my observations as supra, it is inevitable to
interfere with the observations and findings of the trial court.
Accordingly, I answer point No.1 partly in the affirmative and point
No.2 in the affirmative.
28. Point No. 3 :- In view of my finding recorded on point Nos.1 &
2, I proceed to pass the following;
O R D E R
The appeal is hereby allowed in part with costs.
Consequently, the suit is decreed in part with
proportionate costs. The appellant/plaintiff is entitled to
recovery of Rs.Rs.1,32,022.15 from the
respondent/defendant at the rate of 8% p.a. from the
date of suit till its realisation in full.
Office is required to draw the decree accordingly.”
8. As can be seen from the impugned judgment and decree of
the first appellate Court, the entire material on record comprising of
the pleadings and evidence of the parties including account
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statement, stock receipt notes, purchase orders, jaggery supply
bills, payment letters, laboratory reports, invoices, etc. were
correctly and properly considered and appreciated by the first
appellate Court which recorded a categorical finding of fact on the
basis of the pleadings, oral and documentary evidence of both
sides for the purpose of coming to the conclusion that the aforesaid
sum of Rs.1,32,022.15 was due by the defendant to the plaintiff.
The said findings of fact recorded by the first appellate Court based
on legal, admissible and acceptable evidence and without
overlooking or excluding any admissible evidence cannot be said to
suffer from any illegality and infirmity nor can the impugned
judgment and decree passed by the first appellate Court be said to
be capricious or perverse or contrary to law or facts so as to give
rise to any question of law, much less substantial question of law
warranting interference by this Court in this appeal. Accordingly, I
do not find any merit in the appeal and the same is dismissed at
the stage of admission itself.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
BMC/Bvv
List No.: 1 Sl No.: 34