M/s. Ramesh Exports Limited vs Sri K.N. Vasantha

K.L. Manjunath, J.—The appellant, who was plaintiff in OS No 5090 of 2003 before the XXXIII Additional City Civil Judge, Bangalore, has come up in this appeal, aggrieved by the dismissal of its suit in terms of the judgment and decree dated 24-4-2009. According to plaint averments, the appellant-plaintiff placed orders with the respondent-defendant for supply of 50,051 kgs of coffee beans at the rate of Rs. 90/- per kg by paying 70% of the amount as advance on 17-10-1997. After supply of the coffee beans, the respondent raised a bill on 3-1-1998, demanding a total sum of Rs. 52,80,000/-. According to the plaintiff-appellant, without deducting the 70% advance amount paid by it on 17-10-1997, by oversight, the entire consideration was paid by the plaintiff to the defendant. Subsequently, the plaintiff corresponded with the defendant-respondent requesting him to refund the excess amount paid by the plaintiff. Contending that though the defendant agreed to settle the account, he has failed to do so. Hence, the suit came to be filed.

Though suit summons was served on the defendant-respondent, he did not contest the suit. One witness was examined on behalf of the plaintiff as PW1 and relied upon Ex. P1 to 66. The trial court formulated the following points for its consideration:

Whether the suit of the plaintiff is barred by time?

Whether the plaintiff is entitled to the relief sought for?

What order?

The trial court, after considering the evidence let in by the plaintiff-appellant, came to the conclusion that the suit filed by the plaintiff-appellant was barred by limitation and only on the said ground, the suit came to be dismissed. Challenging the said judgment and decree the present appeal is filed.

The main contention of the appellant before us is that the trial court did not consider the correspondence''s taken place between the parties, more particularly Ex. P55 and 56, and has erroneously dismissed the suit as barred by limitation. According to learned counsel for the appellant, if Ex. P55 and 56 had been considered by the trial court, the trial court would not have come to the conclusion that the suit filed by the plaintiff-appellant was filed beyond the period of limitation. According to him, the suit transaction took place between the parties in the year 1997. The order was placed by the plaintiff-appellant on 17-10-1997 for the supply of coffee beans at the rate of Rs. 90/- per kg by paying 70% of the total value of the purchase as advance and the plaintiff was due only 30% of the value. According to him, the bill was raised for the entire value of the coffee beans supplied and the same was paid by the appellant without deducting the advance amount paid earlier. It is also his case that on 10-10-2000, plaintiff sent a detailed letter giving the break-up of the outstanding amount due from the defendant-respondent as per Ex. P55. This letter was addressed by the plaintiff to the defendant in response to the letter dated 9-10-2000 [Ex. P52], requesting to settle the dues. In Ex. P56, the defendant agreed that the balance amount would be paid subject to verification of the accounts. According to learned counsel for, the appellant, Ex. P56 is dated 10-10-2000 and the suit, was filed on 18-7-2003 i.e. before three years from 10-10-2000. If this date is considered, the trial court would not have dismissed the suit as barred by limitation. In the circumstances, he requests to allow this appeal and remand the matter to the trial court to consider the claim of the plaintiff-appellant on merits.

Per contra, learned counsel for the respondent-defendant submits that since the respondent did not contest the case, there was no opportunity for him to admit or deny Ex. P56 and in the circumstance, he requests this court that without giving any finding on the genuineness or otherwise of Ex. P56, the matter may be remanded to trial court for fresh consideration in accordance with law by giving liberty to the defendant-respondent to file written statement in the suit.

Having heard the learned counsel for the parties, we are of the opinion that any views that may be expressed by us on Ex. P56 would not take away the rights of the respondent-defendant, since the respondent is yet to file his written statement. As rightly pointed out by the learned counsel for the respondent-defendant, the matter has to be remanded to the trial court to reconsider the matter afresh by providing opportunity to the respondent-defendant. In the circumstances, the judgment and decree dated 24-4-2009 passed in OS No 5090 of 2003, on the file of XXXIII Additional City Civil Judge, Bangalore, is hereby set aside and the matter is remanded to the trial court for fresh consideration. Both parties are directed to appear before the trial court on 7-4-2014 without issuance of any notice from the trial court. The respondent-defendant is directed to file his written statement within 30 days from 7-4-2014 and thereafter the trial court is directed to frame necessary issues and disposed of the suit on merits in accordance with law. Keeping all contentions, the appeal is disposed of. In view of remand of the matter to the trial court, the appellant is entitled for refund of full court fee.