AI Structured Summary
Not yet generated for this judgment
Judgment
(PER: HON'BLE MR. JUSTICE D K SINGH)
This Regular First Appeal by the sole defendant, assailing the judgment and decree dated 30.10.2013 passed by the Principal Senior Civil Judge and Chief Judicial Magistrate, Ramanagara1 in O.S.No.434/2008.
The TC under the impugned order decreed the suit of the plaintiff with costs, directing the defendant by way of mandatory injunction to submit Form-C-Central Sales Tax Declaration2, in respect of sales of Rs.3,65,98,409/-, during the period between July 2007 to October 2007, lest the plaintiff is entitled to recover a sum of Rs.33,03,316/- being the differential amount from the defendant, while dismissing the counter claim of the defendant.
Parties are referred to as per their ranking before the TC.
The facts germane to file the present appeal are as under.
Before averting to the facts of the case on each and every contentions taken by both the parties in the suit, it is germane to mention here that both the parties in unison submitted that so far as the mandatory injunction claimed by the plaintiff that is, direction to submit CSD to the plaintiff concerned for the period between July 2007 to October 2007, the Form-C has been submitted and the direction has been complied. That apart the non-filing of the execution seeking to recover amount being Rs.33,03,316/- not filed, presupposes that the defendant already submitted Form-C, which has stated afore is not in dispute. In view of the same the scope of this appeal is narrowed down only to that extent of the counter claim of the defendant that to limited extent of amount of Rs.28,87,774/-.
The defendant filed counter claim placing reliance on Ex.D4 stating that the plaintiff under Ex.D4, voluntarily came forward and admitted that there is due of Rs.28,87,744/- Though the amount claimed by the defendant under counter claim is to a sum of Rs.1,01,19,138/-. However, in view of restriction of claim only to extent of Rs.28,87,744/-, the same is considered in this appeal narrowing down the lis between the parties. The defendant submits that under Ex.D4 as per the admission of the plaintiff, the defendant is entitled to a sum of Rs.28,87,744/- as against claim of Rs.63,54,189/-under Item No.9 of Ex.D4. The Item No.9 reads as under:
09 FMSC CSD 78,082 Nil TKM to CSD team Latest settle on requesting claim by behalf of for cheque Benara other details and Motors dealers as Benara team Rs.74,112/-has been to share the past details to CSD. Photocopies of the coupons to be submitted by Benara Motors within 27 April 2008. However inter dealer settlement issues no TKM role in this regard.
As per the chart appended to Ex.D4, Column No.3 states Benara Motors claim and the amount in due as per Column No.4 states stance of the plaintiff, i.e., the amount payable.
It is contented by the defendant in the counter claim that on 16.04.2008 and 17.04.2008, the officials of the plaintiff and those of defendant held a meeting at plaintiff's office in Bengaluru to settle the monetary claims. As per the minutes recorded, defendant raised claims to the tune of Rs.63,54,189/- on various issues such as incentive and marketing claims, infringement and warranty claims, interest, amounts payable as sales tax, FMSC (Free Maintenance Service Charges) etc., Column No.4 of the chart appended to Ex.D4, shows that plaintiff has agreed that it is due in an amount of Rs.28,87,744/-to the defendant. They acknowledged and accordingly signed the said documents. However, the fact remains that the officials of the defendants have not signed the said Minutes of the meeting, as the defendants have not agreed to the amount admitted, but holding on to the amount of Rs.63,54,189/-.
Whereas the learned counsel for the plaintiff submits that the amount stated to an extent of Rs.28,87,744/- is just a clarification/discussion and not an admission, since the same is subject to sharing of ledger details to CSD and other documents. Further that the document cannot be considered as a concluded document, since the official of defendant have not signed it and sought to dismiss the appeal.
Having considered the rival submission, we have perused the appeal papers along with trial Court record.
No doubt the document at Ex.D4 has not been subscribed by the defendant as signatory, however, the fact remains that the plaintiff signed the document. The column Nos.3 and 4 indicates regarding the claim by the defendant and the amount in due as per the plaintiff. There is a categorical admission of the plaintiff in their evidence. In that regard the admissions given by the PWs-1 and 2 in their cross-examination is very apt to consider this lis which reads as under:
In PW-1:
"I do not remember whether on 16 and 17th April was a meeting called by plaintiff and defendant settled differences. I did not participate in the meeting. I informed about meeting. Several representatives of plaintiff had participated in the meeting. They were participated authorized them. It is not true to suggest that their binds on me. What I would say is decisions have been taken by marketing branch, I deal with finance branch, so the decision taken by marketing branch do not binds on me. It is true to suggest that I represent management unit too. It is true to suggest that decision taken by the marketing branch binds on marketing branch, however it has to be approved by managing director or deputy manager. It is true to suggest that if the papers are correct and clear managing direct would make will approve payments.
It is true to suggest that we have reached to some understanding in connection to this transaction when the meeting was held. It is true to suggest that some minutes of meeting has been wrong but the defendant did not signed.
It is true to suggest that plaintiff's company is asking C Forms from the defendant, if the defendant furnishes C. forms plaintiff company is ready to make payment if there is due. It is true to suggest that defendant is ready to furnish C forms If Plaintiff Company makes payment.
I do not know whether there was any corresponds between Plaintiff Company and defendant after the minutes of the meeting.
The plaintiff company is ready to make payments if there is due and if defendant furnishes C form. It is true to suggest that if there is no any terms and conditions in dealership agreement and policies we go by general trade practice to settle any issues or correspond."
In PW-2:
"7.I state that, in order to settle amicably the issues, the executives of the plaintiff and the Defendant Company, held a meeting on 16th and 7th April 2008 and had recorded their stance and claims by the way of minutes. In the said minutes of meeting, the Plaintiff Company had clearly stated its stance and had agreed to hohour only the part of the claim made by the defendant subject to condition that the defendant furnishes all the relevant ad sufficient proof/evidence/documents towards its claim ad had rejected the rest of the claim make by the defendant. The defendant did not furnish any such proof documents in support of its clam which indicated that its claims were baseless.
xxxx
It is true to suggest that on 16 and 17th April 2008 there was a meeting between representative of Plaintiff and Defendant Company. The said meeting was held in Bangalore city. The said meeting was held on mutual consent of both parties. However, we initiated to call the said meeting, I was also present in the said meeting. The said meeting was held to identify the problems of the defendant and also to try resolved the problems. It is true that exhaustive discussions were taken place in the said meeting. In the said meeting minutes of the meeting were recorded but defendant have not signed the said minutes, It is true that as per Ex. D-4 minutes are recorded. It is true to suggest that representatives of plaintiff have signed Ex. D-4. I am not aware that after said meeting, several correspondence took place between the parties."
The plaintiff in the cross-examination of defendant had elicitated certain statements, which goes against the plaintiff which reads as under:
"I do not know whether a case was filed before court Aghra after termination of dealership agreement. The contents of the Ex.D-4 is admitted by Plaintiff Company and not by our company. I say that the plaintiff company has not admitted the contents of Ex.D-4 in its whole. It is true to suggest the plaintiff as accepted the part of defendant claim subject to the production of proof as stated in column No.7 (Stance of TKM of Ex.D-4). It is true to suggest that I have not complied column No.7 (Stance of TKM of Ex.D-4). In this regard I would like to say that Satisfaction mutual settlement was not there. So we did not complied column No.7 (Stance of TKM of Ex.D-4). I do not know whether the defendant with in the 3 months date of the dealership agreement. It is not true to suggest that only to avoid furnishing I have made false claim. It is not true to suggest that there was no impediment for the defendant to pass on the C Form to the plaintiff when it was demanded."
The admissions given by the plaintiff pre-supposes that as per the plaintiff, the amount in due is Rs.28,87,744/-. The CSD team requests for cheque details, however in the stand of TKM at 6th Column they sought for certain ledger details to CSD. In the cross-examination. PW-1 and PW-2 unequivocally stated that if the defendant furnished Form-C, the plaintiff company is ready to make payment, if there is due and further it is elicitated as true that the defendant is ready to furnish the Form-C if plaintiff’s company makes payment. As per Ex.D4 though not resulted in a concluded contract, in the absence of signature by defendant No.2, but remains as an acknowledgment by plaintiff towards the dues with signature on their behalf.
In these circumstances now it is not open for the plaintiff to blow both hot and cold. At one stretch the plaintiff arrived at an accurate figure, but claims that documents required to be produced by the defendant. If there were no documents available with the plaintiff, it really sounds strange how the plaintiff has arrived at the accurate figure. The figure arrived at is not an approximate figure, but an accurate figure with all numbers, specifically "Rs.28,87,744/-".
The plaintiff in the absence of any documents to that effect could not have reached the accurate figures of Rs.28,87,744/-. The conjoint perusal of the admissions in the evidence by the witnesses of the plaintiff and the Ex.D4 indicates that the documents which is sought for payment of admitted amount of Rs.28,87,744/- perhaps in all probabilities the Form-C to claim the tax benefit.
In view of admissions by the plaintiff with respect to the amounts as per the records, which is reflected in the Minutes recorded in Ex.D4, the plaintiff cannot be now permitted to argue that the same would not enure to the benefit of defendant, as they are not signatories.
The trial Court has lost sight of the fact that the claim made by the defendant was Rs.63,54,189/-. However, as per the plaintiff it was not the said sum, but accurately it is Rs.28,87,744/-. If there are no documents available with the plaintiff, the said sum could not have been arrived at, merely because the documents were not signed by the defendant, it cannot be taken against the defendant. At the very same time the defendant cannot take the same to contend that the amount due is Rs.63,54,189/- since the same is not signed by the defendant. But so far as amount arrived at by the plaintiff as against the claim of defendant to Rs.63,54,189/- is Rs.28,87,744/- and is admitted and countersigned the minutes. In that view of the matter, the same required to be considered against the plaintiff.
The trial Court weighed much on the signature and conclusion of the contract, but failed to consider that the amount in due when read along with the oral admissions in the cross-examination clearly gives a picture that plaintiff is in due of amount of Rs.28,87,744/- to the defendant. This has been missed by the trial Court. The trial Court has given much weightage on the evidence of the defendant. However, failed to consider the admission given by the plaintiff. It is not the case of the plaintiff that neither the defendant nor the plaintiff signed the document, but the Minutes entered in Ex.D4 are just discussions. In view of the admissions and as the documents itself speaks that the participants on behalf of the plaintiff’s company signed the Minutes, as such, the same cannot now be argued as just clarifications/discussions. The same requires to be construed as a statement with respect to the due by the plaintiff.
The trial Court failed to consider this important aspect of the matter. In that view of the matter, we are of the considered opinion that the plaintiff in view of their admissions in the cross-examination, stated supra and in view of document at Ex.D4 are liable to clear a sum of Rs.28,87,744/- along with interest at the rate of 6% per annum from the date of the judgment and decree rejecting the counter claim till realization.
In view of the same, we proceed to pass the following:
ORDER
The appeal is allowed in part, setting aside the judgment and decree dated 30.10.20x13 passed by the Principal Senior Civil Judge and Chief Judicial Magistrate, Ramanagara, in O.S.No.434/2008, rejecting the counter claim of the defendant.
The plaintiff is directed to pay a sum of Rs.28,87,744/- along with interest at the rate of 6% per annum from the date of judgment and decree passed by the TC dated 30.10.2013 rejecting the counter claim till realization, within a period of three months from the date of receipt of copy of this order, failing which the defendant is at liberty to file execution and recover the same in accordance with law.
The plaintiff is directed to make good the cost through out incurred by the defendant in this appeal as well as counter claim before the trial Court.
Draw a modified decree accordingly.