M/s Vivek Industries vs M/s Yash Furnitures

Jawad Rahim

Revision u/s 18 of the Small Causes Courts Act is directed against the judgment in S.C.528/09 dated 2.3.2010 on the file of Judge, Small Causes Court, Bangalore. Heard.

From what is urged by both sides, it is seen petitioner filed a suit against the respondent for recovery of Rs. 51,750/- with interest thereon at 18% p.a. from the date of suit till realisation on the basis that there were business transactions between it and the respondent for supply of furniture. Respondent-defendant had placed an order for supply of 14 small tables and 7 big tables and accordingly plaintiff manufactured and supplied it under invoice No. 31 dated 16.12.2008, valuing it at Rs. 51,750/- on credit. Defendant was obliged to pay the amount in two weeks. Defendant did not comply with the demand and postponed payment on one pretext or the other. It necessitated issuance of notice to make good the amount which was duly served. Defendant sent a reply on 7.2.2009 which was untenable. Thus, he filed the suit.

Defendant resisted the suit contending the claim was frivolous, imaginary and untenable. Through a detailed written statement, defendant brought out that he had placed the order for supply of tables, small and big, under invoice No. 31 dated 16.12.2008 but when the goods were received, they were found to be damaged and not as per the specifications. Therefore, the defendant had sent back the damaged items which were received by the plaintiff. Since the plaintiff has taken back the goods supplied, there was no question of making payment and hence, defendant was not liable. It is further contended, defendant visited plaintiff''s office and requested them to send the furniture in perfect condition in terms of the order placed. In the alternative, defendant requested the plaintiff to send 50 chairs in lieu of tables. Believing the plaintiff that changes will be brought about, he issued a cheque bearing No. 761194 for Rs. 25,000/- dated 25.12.2008 and another cheque bearing No. 761195 for Rs. 31,350/- dated 1.1.2009.

Plaintiff received the said amount towards value of 50 chairs to be supplied. Later, plaintiff sent certain chairs which, on verification, were found to be defective. It is further urged instead of sending 50 chairs, plaintiff sent 41 chairs and 14 tables, value of which is shown as Rs. 84,000/-. Since defendant had not accepted the order, they were returned. Meanwhile, plaintiff had encashed the cheque for Rs. 25,000/-and enriched itself.

Pointing out to the value of invoice nos.31 and 32 as Rs. 1,08,100, defendant has clearly mentioned that after giving deduction to Rs. 84,000/-, the value of the goods taken back by the plaintiff, still it (plaintiff) is liable to pay Rs. 25,000/-.

In answer to all these grounds in the written statement, plaintiff did not file any rejoinder. Instead it went to trial and tendered evidence through one Lakshmi Shantha (PW1) and produced 5 documents marked as Exs.P1 to P5. Defendant on its part examined its proprietor as DW1.

The learned trial judge examined the evidence and found, firstly that the suit was based on accounts and secondly, that there was no sufficient material to show plaintiff had supplied the goods as per the invoice referred to in the plaint. It was held defendant had substantiated he had placed orders which was not complied. Entertaining a doubt about completion of the transaction, the suit was dismissed.

It is interesting to note plaintiff has simultaneously initiated action u/s 138 of the Negotiable Instruments Act on the dishonour of cheque for Rs. 31,350/-and has already obtained an order of conviction. It is further noticed that in criminal proceedings, though action has been initiated on the same cheque, the contention of the plaintiff is, it relates to a different transaction. In this manner, plaintiff has created a new case in two proceedings.

In this revision, when clarification was sought, learned counsel reiterates that the cheque relates to a different transaction and that is not covered by the suit claim. If that is so, it was incumbent on the plaintiff to have produced accounts relating to the transaction between the parties. For unexplained reasons, plaintiff has not produced the accounts though the suit is based on accounts. In the circumstances, no fault could be found with the order passed by the learned trial judge. I find no merit in the revision. It is dismissed.