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Judgment
N. Kumar, J.
The defendant''s Regular First Appeal against the Judgment and Decree passed by the trial Court decreeing the suit of the plaintiff for a sum of Rs. 47,17,655/- with future simple interest at 12% p.a. from the date of suit till the date of realization.
For the purpose of convenience, the parties are referred to as they are referred to in the suit.
Plaintiff is a company incorporated under the provisions of Indian Companies Act and carrying on business of manufacture and sale of cements primarily under three brands namely, Sankar, ''Coromandel'' and ''Raasi''. Its registered office is at Chennai. Defendant No. 1 is a partner of firm engaged in the engineering contract work and belongs to URC Group of companies. Their registered office is situated at Tamilnadu and its branch office is situated at Bengaluru at Plot No. 810, 1st Cross, 7the Main, HAL 2nd Stage, Indira Nagar, Bengaluru-08.
Defendant No. 1 approached the plaintiff company for supply of cement to their construction project site at Fowler, Westrup Project at Malur, Near Kolar on credit basis and on such request, the plaintiff company sold and delivered Coromandel cement to defendant No. 1 from 27.4.2011. The plaintiff used to raise invoice-cum-delivery challans in the name of first defendant firm and sent it to the defendants for making payment. The defendants made payments on account.
The plaintiff had maintained running accounts of the defendants in the books of accounts maintained in the usual course of its business in the name of defendant No. 1. The plaintiff has debited the account of the first defendant as and when the goods were sold and delivered and credited in to the account of the first defendant as and when payments were made. The defendants have acknowledged the receipt of a copy of statement of account to the plaintiff. A sum of 47,17,655/- was due from defendant No. 1 as on 15.10.2012 in respect of the purchase of cements. Defendants have confirmed the balance due on the statement of account furnished by the plaintiff company and promised to clear the entire dues at the earliest.
Subsequently, the plaintiff came to know from reliable source that the cement supplied by them to defendant No. 1 for the use of construction activities at Malur site was getting diverted and sold in the open market without the knowledge of the plaintiff which was against the contract of sale between the plaintiff and defendant No. 1. On coming to know of the same, they were constrained to stop further supplies to defendant No. 1 to their Malur site on 15.10.2012 and requested defendants to clear their dues. Inspite of several phone calls and personal meetings, the defendants did not make payment. The defendants made payment of Rs. 15,00,000/- on 29.9.2012 on running account just 15 days before stopping further supplies of cement. The balance amount due is Rs. 47,17,655/-. The defendants did not pay the said amount inspite of repeated requests and demands made by the plaintiff. The defendants are liable to pay interest at the rate of 21% p.a. as per the provisions of Sale of Goods Act and conditions of Sale and Trade usage and customs. Therefore, the plaintiff filed a suit for recovery of the said amount with interest at 21% from the date of suit till the date of realization.
On service of summons, defendants entered appearance and filed their written statement. The case of the defendant is, it is undertaking a construction project at Fowler Westrup (India) Pvt. Ltd., in the KIADB Industrial Area at Malur near Kolar. For requirement of cement for said construction, defendant No. 1 raised its purchase orders on various dates with the plaintiff for supply of cement. The cement supplied under such purchase orders and delivered to defendant No. 1 have been acknowledged by defendant No. 1 as per terms and conditions contained in the purchase orders. The plaintiff is responsible for packing, forwarding, freight and insurance, unloading charges up to the site. Plaintiff was also responsible for engaging the transporter to deliver cement to the project site of defendant No. 1.
From April 2011 till 15.10.2012, the plaintiff claims to have supplied 71,200 bags of cement to defendant No. 1 at the aforesaid project site. Defendant No. 1 had made payment for all the quantities of cement supplied by the plaintiff to defendant No. 1 in pursuance of purchase orders and utilized by defendant No. 1. Despite making full payment, the plaintiff persisted in making demands on defendant No. 1 for payment of certain amount which the plaintiff claimed was due against the supplies of cement made by the plaintiff to defendant No. 1. In order to satisfy the plaintiff, defendant No. 1 had made full payment for the cement delivered pursuant to the purchase order placed by defendant No. 1 on the plaintiff. Defendant No. 1 had made a detailed check of the stocks of cement lying at its Godown at its project site against the quantity of cement utilized by defendant No. 1 in its construction activity till that time and defendant No. 1 also reconciled its accounts to determine the payments made by defendant No. 1 to the plaintiff.
During the course of such stock checking, defendant No. 1 was shocked to find that a large quantity of cement was missing and could not be accounted for. It was found that the quantity of cement said to have been delivered by the plaintiff to defendant No. 1 is far in excess of the aggregate of the actual quantity of cement utilized by defendant No. 1 till that date. Therefore, defendant No. 1 had lodged a complaint before Malur Police Station and a case was registered in Crime No. 243/2012. On investigation of the matter by the Police, it was found that about 25,000 bags of cement of the total value of about Rs. 75 lakhs were missing from the Godown of defendant No. 1. On further investigation, it was found that 2 security guards by name Ajith Bora and Pranab Bora who were employed by the agency by name Shashi Detective Services Pvt. Ltd., engaged by defendant No. 1 to provide security for its aforesaid project site, had colluded with another person by name M. Samuel and mis-appropriated certain quantities of cement.
Defendant No. 1 repeatedly called upon the plaintiff to furnish all the purchase orders that have been placed by defendant No. 1 on the plaintiff for the supply of cement in order to compare the same against the delivery notes and invoices said to have been raised by the plaintiff on defendant No. 1 so as to enable defendant No. 1 to reconcile its accounts and make payment of balance amount. But, inspite of the same, the plaintiff has not furnished the copies of purchase orders placed by defendant No. 1 and defendant No. 1 has made all the payments for the cement supplied by the plaintiff. Hence, no amount is due from the defendants. Further, the defendants denied that they are due in amount of Rs. 47,17,655/- and also deny that they are liable to pay interest at 21% p.a.
On the basis of aforesaid pleadings, the trial Court framed the following issues:
Whether the plaintiff proves that he had supplied cement to the defendants from time to time by raising invoices and debiting the amount in the account of the defendants as and when the amount was received and there was due of Rs. 47,17,655/- as on 15/10/2012?
Whether the plaintiff further proves that the defendants have not repaid the said amount and defendants have confirmed the balance due in the statement of account and plaintiff is entitled for interest at 21% p.a. from the date of suit till the date of realization.?
Whether the plaintiff is entitled for the suit claim amount?
What order or decree?"
The plaintiff in order to substantiate its claim, examined Sri. K.C.N. Reddy as PW. 1 and produced 137 documents which were marked as Ex. P1 to P137 and on behalf of defendants, no evidence either oral or documentary was adduced.
The Trial Court, on appreciation of oral and documentary evidence on record held that the plaintiff has proved that it had supplied cement to defendants from time to time by raising invoices and debited amount into the account of defendants as and when the amount was raised. There was due of Rs. 47,17,655/- as an 15.10.2012. It also recorded a finding that plaintiff is not entitled for interest at 21% p.a. and awarded only 12% p.a. Therefore, it decreed the suit of the plaintiff for a sum of Rs. 47,17,650/- with interest at 12% p.a. from the date of suit till realization.
Aggrieved by the said Judgment and Decree of the trial Court, the defendants have preferred this appeal.
The learned counsel for the defendant-appellants assailing the impugned order contended that the plaintiff has not produced all the purchase orders on the basis of which the suit claim is founded. Secondly, she contended, though the defendants acknowledged the account extract, it was categorically stated that amount claimed therein is subject to verification. Thirdly, it was contended that, when the defendant has not admitted the claim of the plaintiff, burden of proof is squarely on the plaintiff. Plaintiff has not discharged the said burden. The evidence on record do not substantiate the claim. Therefore, she submits, Court below committed a serious error in passing the impugned Judgment and Decree as such it requires to be set aside.
From the aforesaid facts, the evidence on record and the submissions, it is clear that the contract between the parties for supply of cement is not in dispute. According to the plaintiff, they have supplied in all 71,200 bags of cement from April 2011 till 15.10.2012. The defendants who were paying on account have paid Rs. 15,00,000/- on 29.9.2012 and balance amount due was Rs. 47,17,655/-. The evidence on record shows, the defendants used to place purchaser orders with the plaintiff for supply of cement. Thereafter, the plaintiff used to raise invoice to supply the same. The defendants, at the time of delivery, issue acknowledgement for having received the delivery as demanded. It is also on record, some of the supplies have been made on the basis of oral orders made by the defendants. Probably, that is the reason why when the suit is filed or even before that the defendant was insisting on the plaintiff to furnish purchase orders. The purchase orders are generated by the defendants and sent to the plaintiff for supply. If the case of the defendants is, the entire supply is not supported by purchase orders, it was open to the defendants to produce those purchase orders which according to them is placed. No effort is made to place on record the purchase orders placed by the defendants to the plaintiff. In fact, no witness is examined. No oral or documentary evidence is adduced in this regard. Further, there is categorical admission in the written statement that defendants put-forth the claim for a sum of Rs. 47,17,655/-. The defendants undertook a detailed check of the stocks of the same lying at its godown and at its project site against the quantity of cement utilized by defendant No. 1 in its construction activity. In the course of such stock checking, defendant was shocked to find that large quantity of cement was missing and could not be accounted for. They found that 25,000 bags of cement amounting to Rs. 75 lakhs were missing from the godown of defendant No. 1. On further investigation, they found that two security guards by name Ajith Bora and Pranab Bora who were employed by the agency by name Shashi Detective Services Pvt. Ltd., engaged by defendant No. 1 to provide security for its aforesaid project site, had colluded with the store keeper by name M. Samuel and misappropriated certain quantities of cement. Therefore, they lodged a complaint before Malur Police Station and a case was registered in Crime No. 243/12. This unequivocal admission in the written statement shows, because of stock verification, 25,000 bags of cement was missing. The defendant has contended that it has not received the cement sent by the plaintiff as it has failed to produce the purchase orders. In fact, the evidence on record shows, the plaintiff has produced totally 99 invoice-cum-delivery challans which are marked as Ex. P34 to 132 which clearly reveal that the plaintiff had supplied cement to defendant No. 1 and some authorities of Devi Construction Company had acknowledged for having received the same. The said invoice-cum-delivery challan are produced at Ex. P34 to P132 and statement of supply of materials made to the defendant vide Ex. P33, Ex. P31-Ledger extract of statement of account of defendant for having confirmed the balance to the defendants.
It is by looking into plaintiffs evidence, the Court below has recorded a finding that the plaintiff has proved supply of cement and delivery of the same to the defendant or to his agent. It was contended, even though the defendants signature is found in Ex. P34, defendants have not admitted the correctness of the same as they have clearly stated that it is subject to stock verification. If they had any grievance against the statement of account, it was open to the defendants to show as to what is the error. It was open to them to produce their account. Plaintiffs records cannot be acted upon. On the contrary, the defendants have not stepped into the witness box and they have not adduced evidence to substantiate their claim. The cross-examination of PW. 1 has not suggested anything worthwhile. On the other hand, the claim of the plaintiff is based on documents which are maintained in its regular course of business. The plaintiff has also produced totally 99 invoices-cum-delivery challans vide Ex. P34 to Ex. P. 132 which clearly reveal that plaintiff had supplied cements to defendant No. 1 and some authorities of Devi Construction Private Ltd., i.e. defendant No. 1 had acknowledged for having received the cements shown in the said invoices-cum-delivery challans. There is nothing to show that the said documents cannot be believed.
Under the circumstances, the trial Court committed no error in decreeing the suit of the plaintiff on the basis of legal evidence and the plaintiffs claim for 24% p.a. interest is negatived and has awarded 12% which is just and proper.
For the aforesaid reasons, we do not find any merit in this appeal. Accordingly, it is dismissed at the stage of admission. Applications filed for delay and stay are also dismissed.
No order as to costs.