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Judgment
K.L. Manjunath
The appellant who was plaintiff being aggrieved by the order passed in O.S. No. 6829/2002 on the file of City Civil Judge, Bangalore, dt. 2nd September 2009, has filed this appeal. The suit was Instituted by the plaintiff for recovery of Rs. 6,72,278/- together with interest at 13% p.a. and for the costs. It Is the case of the appellant-plaintiff that it is a registered company incorporated under the provisions of the Companies Act and is recognised as a small scale Industry from the Department of Industries and Commerce. The plaintiff has supplied PVC rigid pipes to the defendants-2 and 3 pursuant to the order placed by the 1st defendant between 1995-96 to 1999-2000. The total value of the pipes supplied worth Rs. 59,94,674/-and after deducting the amount paid by the defendants, the defendants were due In a sum of Rs. 25,486/- towards the value of the pipes supplied and In terms of the provisions of Interest on delayed payments. Under Small Scale and Ancillary Industrial Undertaking Act, the Plaintiff Is enacted to claim Interest on the delayed payment. Therefore a suit was filed for recovery of Rs. 6, 67,278/- as on 31.3.2002.
The defendants contested the suit on the ground that there is no agreement to pay the Interest and that the suit filed by the plaintiff Is not maintainable.
Based on the above pleadings the following issues were framed by the court below:
1) Whether plaintiff proves that there was an contractual obligation between Itself and the defendants for supply of PVC pipes and the plaintiff has supplied the same is entitled to recover the cost which defendant felled to pay to the tune of Rs. 6,67,278/-?
2) Whether the plaintiff further proves, that the defendants are due in a sum adjudged and they are entitled to recover the same together with interest @ 18.5% p.a. from the date of the filing of the suit till the realization?.
3) Whether the defendants prove, that the suit is bad for mis-joinder and non-joinder of necessary parties?.
4) To what order and decree?
In order to prove their respective contentions, the Managing Director of the Plaintiff was examined as PW1 and he relied upon Ex. P1 to P26. One witness was examined on behalf of the defendants as DW1 and they relied upon Ex. D1 to D13, The Trial court held Issues-1 and 2 In partly affirmative, issue-3 in affirmative and suit of the plaintiff came to be decreed only for Rs. 25,486/- with interest at 18% p.a. from the date of suit till the date of realisation.
Being not satisfied with the Judgment and decree of the court below, the present appeal is filed.
We have heard the counsel for the parties.
According to the appellant even though there is no agreement between One parties to pay interest at 18% on the belated payment, as per the provisions of the Act, the appellant is entitled to claim interest for the belated payment. Therefore, the Trial Court is erred in decreeing the suit only for a sum of Rs. 25,486/- towards the balance value of the supply of the pipes with interest at 18% p.a. In the circumstances, he requests the court to reconsider the entire evidence and decree the suit as prayed for.
Per contra, the learned counsel for the respondents submits that the plaintiff is in the habit of making claim after receipt of the consideration towards the material supplied by him and this is the modus-operands to file the suit after receipt of the entire sale consideration. It is also contended by the respondents-defendants that the plaintiff cannot be permitted calculate the interest in respect of the supply made by him three years prior to the date of filing the suit because those claims are barred by limitation. It is also contended by the defendants that as per the agreement, the plaintiff was liable to pay 2% commission to the 1st defendant since the same is not paid, the said amount is also required to be adjusted. It is contended that interest awarded at 18% p.a. on the decretal amount from the date of suit till the date of payment is on higher side and it cannot be more than 6% and lastly contends that the plaintiff has failed to prove how he is entitled for Rs. 6,67,278/- since no material is placed before the court. In the circumstances, the respondents requests the court to dismiss the appeal.
Having heard the counsel for the parties, what is required to be considered in this appeal is:
1) Whether the plaintiff is entitled to claim interest for belated payment?
2) Whether the plaintiff has proved the suit value?
Admittedly, the plaintiff is supplying materials to the respondents. immediately after supply when the amount is not paid within 45 days in terms of the bill, he has not claimed any interest. He has waited for years together and after receipt of the major portion of the value of the material supplied, by issuing a notice in 2002, relying upon the provisions of the Act, has filed the suit.
As rightly contended by the counsel for the respondents even if the plaintiff Is entitled to claim interest in terms of the statute, the same is barred by limitation and the plaintiff has not let in separate evidence by producing calculation sheet in respect of the amount which he is entitled to, if the same is well within time. In the absence of positive evidence let in by the plaintiff, the plaintiff is not entitled for a decree as a matter of right because he has failed to prove the claim. It has also come in the evidence that he had agreed to pay 2% commission which has not been paid by him as could be seen from the admission of PW1 - Managing Director. The suit is Instituted on 7.10.2002. Therefore, at best the plaintiff was entitled to claim interest in respect of the supply made by him 3 years prior to the said date and as could be seen from Ex. 24 legal notice got Issued by the plaintiff from 7.11.99 all 4.8.2000 he has made supply on four different dates and similarly he has also received payment in 2000-01. The balance was only Rs. 25,000/-. He has not let in evidence to show each of the supply made by him and the amount received by him and the interest which he is entitled to. When such an evidence is not let in by the appellant, we are of the view that the Trial Court is justified in rejecting the claim made by the appellant to award interest based on the statute.
The plaintiff was required to let in evidence in respect of each of the supply and the amount received and the amount of interest he is entitled to. Further perusal of the evidence of PW1, no such evidence is let in. Therefore, we do not see any error committed by the court below in rejecting the claim for interest for the belated payment as the plaintiff has failed to prove the same in accordance with law. Accordingly, we dismiss the appeal.