THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A NO.51 OF 2001 AND CROSS-OBJECTIONS (SR) 26683 OF 2001 JUDGMENT: Both the matters arise out of the judgment and decree in O.S.No.898 of 1990 on the file of the Court of Second Senior Civil Judge, City Civil Court, Hyderabad. The suit is one filed for recovery of Rs.1,38,708-04 paise with interest at 21% per annum. The allegations in the plaint are as under:- The plaintiff is a registered Company having registered office in Hyderabad and represented by its General Power of Attorney B.Ranga Reddy. The registered office of the plaintiff and works are at Hyderabad and there are several Area Offices which are under the control of the Head Office at Hyderabad. The finished goods will be despatched from Hyderabad. The first defendant is a partnership firm, of which defendant Nos.2 to 4 are partners and was appointed as a dealer for sale of the goods of the plaintiff and was doing business at Pune. When the defendants have disputed the correctness of the accounts, the plaintiff’s officials and the defendants sat together and verified the accounts and the balance was arrived at and confirmed by the defendants. As per the statement of accounts maintained by the plaintiff in the regular course of business, the defendants have to pay a sum of Rs.86,040-40 paise and inspite of repeated demands and legal notice, the defendants have not paid the money and therefore the claim was made for the above amount with interest at 21% per annum. Defendant No.2 is said to have died and defendant Nos.1, 3 and 4 filed a written statement raising several contentions. For the purpose of convenience, it is useful to refer to relevant and material contentions. The substance of the claim of the defendants is that the person who has filed the suit is not competent and the power of attorney is not legally valid and the plaint is not properly presented and therefore it is liable to be rejected. Further no part of cause of action has arisen at Hyderabad and the court at Hyderabad has no jurisdiction. The Area Office and the Zonal Office of the plaintiff are at Bombay and the agreement and transactions have taken through them and therefore the court at Hyderabad has no jurisdiction. According to the defendants, the alleged settlement of the accounts by the officials of the plaintiff and the employees of the defendants is confirmed thereof is also disputed. The statement of accounts is not correct. The plaintiff has not given credit to some of the payments which were made by the defendants. According to the defendants the following payments were made. Cheque No. Date Amount 165559 17-11-82 40,242-00 165574 20-11-82 8,398-00 176447 20-02-83 62,323-10 182815 25-03-83 22,307-25 Further more, on 16-08-1996 a sum of Rs.25,615-90 paise was paid but it was not adjusted to the accounts of the defendants. The debit entries made by the plaintiff are not correct. A proper reply was given to the plaintiff for the legal notice and also several letters were written disputing the correctness of the accounts and also the liability to pay the amounts by the defendants. The suit as filed by the plaintiff is not maintainable as an Unit of Voltas as it was taken over. There is no proper amalgamation of the two companies. Therefore, the suit is liable to be dismissed. On the basis of the pleadings, the following issues have been framed for trial. 1. Whether the suit claim is true and genuine? 2. Whether the suit is not properly framed and filed? 3. Whether this court has no territorial jurisdiction to entertain the suit? 4. Whether the plaintiff is not entitled to interest? 5. To what relief? On behalf of the plaintiff PW.1 was examined and marked Exs.A-1 to A-11. On behalf of the defendants DW.1 was examined and marked Exs.B-1 to B-44. After considering the evidence on record, the learned Senior Civil Judge has passed a decree for a sum of Rs.37,404-40 paise with interest at 12% per annum from 26-04-1990 till realisation. Aggrieved by the said judgment, CCCA 51 of 2001 was filed. As the lower court has refused the balance of the amount and the interest was reduced, Cross- objections were filed by the plaintiff claiming a sum of Rs.2,44,567-78 paise. Now the points that arise for consideration are:- 1. Whether the suit is properly instituted? 2. Whether the court at Hyderabad has got jurisdiction? 3. Whether the accounts and the amount claimed by the plaintiff are correct? 4. Whether the payments pleaded by the defendant are not properly accounted for? 5. Whether the plaintiff is entitled to the total amount as claimed in the cross-objections? 6. Whether the judgment and decree passed by the lower court is liable to be interfered? 7. To what relief? POINTS:- There is no dispute about the fact that the appellant/defendant was appointed as a dealer and he has got business transactions with the plaintiff since 1978. The learned counsel for the appellant strongly contends that the suit was filed by the G.P.A.Holder B.S.N.Reddy and the said document is not exhibited and therefore the suit is liable to be dismissed. He relied on the following decisions in support of his claim. 1. State Bank of Travancore Vs. M/s. Kingston Computers(I) P.Ltd. ([1]). 2. Citibank N.A., New Delhi Vs. Juggilal Kamlapat Jute Mills Company Limited, Kanpur([2]) 3. Janki Vashdeo Bhojwani Vs. Indusind Bank Limited([3]) The question is as to whether the suit is liable to be dismissed for the reasons mentioned by the counsel for the appellant. Evidently, a General Power of Attorney was issued and at the time of filing of the suit it was verified and the court has numbered the same. The lower court has considered this aspect under issue No.II. Evidently the suit was filed by Sri B.Ranga Reddy, Deputy General Manager (Finance) through G.P.A dated 15-02-1989 which was accepted by the Company, but he could not be examined as he left the Company. The court at the time of filing the suit allowed the application under Rule 32 of Civil Rules of Practice and permitted to file the suit. The contention of the learned counsel for the appellant is that the resolution of the Company is not filed and the G.P.A is not exhibited and therefore the suit has to be dismissed. The fact B.Ranga Reddy was the Deputy General Manager of the plaintiff-company cannot be disputed in view of the fact that the defendant has also entered into the correspondence with the Deputy General Manager. The fact that the plaintiff is a registered Company and subsequently it was taken over by Voltas and when amendment was made the court has considered the objection and ordered the amendment is not in dispute. Under Additional Issue No.1 dated 30-08-1996 the court held that in I.A.No.1416 of 1995 the plaint was permitted to be amended after the amalgamation of Hyderabad Allwyn Company with Voltas and that order has become final and therefore any of the contentions raised by the appellant with regard to present maintainability of the suit cannot be accepted. The learned counsel for the respondent/plaintiff has relied on a decision reported in United bank of India Vs. Naresh Kumar and others([4]) wherein it was held that the court will not justify in non- suiting a plaintiff on a technical reason that the plaint was not signed by a competent person on technicality when the amount was due from a bank or public corporation and when public interest is involved. The procedural irregularities if any cannot defeat the purpose of justice. In fact in this case at the time of numbering of the suit, the court has applied its mind and seen the G.P.A and numbered the suit. However, the defendant has not asked for any decision as a preliminary issue on this aspect and subsequently even it shows that the rights of the plaintiff has originally instituted were taken over by Voltas and the Voltas was permitted to represent the suit claim and as such the plea raised by the defendant does not survive for consideration. The learned counsel for the appellant further contends that the court at Hyderabad has no jurisdiction to entertain and the business of the defendant was at Pune and the Zonal Office and Area Offices are in Maharastra and the entire delivery of the goods was at Maharastra and as such the jurisdiction of the court is ousted. Evidently, no document has been filed by the defendant to show that the dispute between the parties is subject to the jurisdiction of a particular court. Evidently, if a part of cause of action arises, a suit can be instituted at that place only. The business transaction between the parties is with regard to manufacture and supply of the Refrigerators for sale. Evidently, the Refrigerators were manufactured at Hyderabad and through different agencies the business is done and therefore the principal office of business and production being at Hyderabad. Unless the parties have specially covenanted for exclusion of the jurisdiction, the contention of the counsel for the appellant cannot be accepted. It is not a case of submission of jurisdiction by consent but it is a case where part of cause of action has arisen and in fact the agreement was forwarded to the Head office. The decision reported in Bank of India, CBD Belapur Branch, NaviMumbai Vs. U.A.N.Raju([5]) has no application to the facts of the case. In fact there is no prejudice to the appellant. The non- filing of the written agreement is also of no benefit to the defendant. As can be seen from Ex.A-9 dated 08-08-1990 and other documents the correspondence was between the defendant and Hyderabad branch. At no point of time the defendant has raised the objection about the correspondence by the Hyderabad Branch. Therefore, I find no substance in the contention of the appellant that the Court at Hyderabad has no jurisdiction. The lower court has rightly accepted the contention of the plaintiff. The learned counsel for the appellant contends that the plaintiff has failed to produce the original accounts, which were disputed and no presumption on correctness can be drawn to the accounts filed by the plaintiff and relied on the following decisions:- 1. Ishwar Dass Jain(dead) thr.Lrs. Vs. Sohan Lal([6]) 2. Chandradhar Goswami Vs. Gauhati Bank Limited([7]) 3. Shubh Shanti Services Ltd., Vs. Manjula S.Agarwalla ([8]) Evidently, in this case the suit was filed on the basis of running accounts between the parties. The contention of the counsel for the appellant may be tenable in cases where there is no settlement of the accounts and where the liability is totally disputed. In this case, from the several correspondence between the parties and also the letters written by the defendant there was verification of the accounts and by 09-02- 1989 a sum of Rs.1,17,659-83 ps is found due. In Ex.A-8 letter the defendant has specifically stated that the conciliation for the years 1985- 86, 1986-87 and 1987-88 was done in a hurry and there are some totalling mistakes and they have to be rectified and the balance may be paid. In Ex.B-19 it was informed by the defendant that the entries and figures in the statement of reconciliation is not correct and the reconciliation was done in the office by the accounts staff of the plaintiff Mr.Das and Mr.Nagabhushan Rao and the defendant after thorough checking and going through the each and every entry from the books, a sum of Rs.1,18,316-77 paise was arrived at as being due. It was pleaded that some payments were made and the balance will come only to Rs.92,700-87 paise, which is to be again checked. Therefore, from the above circumstances and the admission of the defendant, it is quite clear that reconciliation of the accounts was done by the plaintiff and the defendant and a figure was arrived at. In view of the above circumstances, it is for the defendant to prove if there are any errors in the accounts and the failure to give credit to the payments. In fact Ex.B- 6 letter dated 05-03-1990 it was specifically stated by the plaintiff by 16- 12-1989 a sum of Rs.1,17,659-84 paise was due. In fact under Ex.A-4 legal notice also the verification of the accounts was done. In Ex.A-9 dated 08-08-1990 it was specifically pleaded by the defendant that the dispute in the books of accounts is for the year 1982 and after this period they have agreed and made the payments as per the reconciliation statement. It was also further admitted that in November-1988 the staff of the plaintiff has visited the office of the defendant and the accounts were verified. Therefore, in view of the above circumstances, it is not open for the defendant to contend that there was no proof of proper liability and that the accounts maintained by the plaintiff and claimed as due by 09-12-1989 as in correct. The defendants are disputing the accounts only with reference to the year 1982. As seen from the earlier letter, according to the case of the defendant, two cheques were issued on 17-11-1982 and 20-11-1982 and they were encashed by the plaintiff and the letter of the Bank of Maharastra dated 05-09-1991 is filed as Ex.B-21. It goes to show that on 17-11-1982 an amount of Rs.40,242-50 paise was realised under cheque and on 20-11-1982 a sum of Rs.8,393-50 paise was realised. The lower court has given to these two amounts and gave decree for the balance of the amount. Evidently, the suit is based on running of the accounts. It is the objection of the defendant from the beginning that these two amounts were not given credit. The learned counsel for the respondent tried to contend that since these payments is of the year 1982, they cannot be taken into consideration. I do not find much force in the contention. If really these two payments were given credit, it is for the plaintiff to show that they were given credit and on that point the plaintiff has to produce the accounts about the adjustment of these two amounts. The failure of the plaintiff to produce the accounts is a point which has to be taken into consideration and it has to be inferred that these two payments were not given credit and in the running account the defendant will be entitled to reduction of these payments. In fact the lower court has considered this aspect only and deducted these two payments. As rightly contended by the learned counsel for the appellant from the beginning it is the contention of the appellant that the dispute is with regard to accounts of the year 1982 and evidently the plaintiff has not proved that these two amounts were credited. There is no reason to disbelieve Ex.B-21 certificate issued by a bank. So far as the other amount of Rs.25,615-90 paise said to have been paid under cheque dated 16-08-1986 is concerned, it was evidently realised but according to the case of the plaintiff the amount was adjusted as per Ex.A-11 in the account of M/s.K.M.Beheray and Company, Pune which is said to be a sister concern of the defendant and as per the instructions of the defendant only the supplies were made to the said company. Therefore, it cannot be said that the cheque amount was not adjusted and the lower court has rightly taken into consideration the above fact and did not give any further credit to the claim of the defendant. Therefore, from the material evidence on record I do not find any infirmity in the judgment and decree passed by the lower court and I do not find any merits in the appeal as well as in the cross- objections and both of them are liable to be dismissed. The points are accordingly answered. In the result, the Appeal and the Cross-objections are dismissed. Each party do bear their own costs. _______________________ N.R.L.NAGESWARA RAO,J 15-06-2011 TSNR [1] 2011(3) SCALE 33 [2] AIR 1982 DELHI 487 [3] AIR 2005 (SC) 439 [4] AIR 1997 S.C. 3 [5] 2004 ALD (1) 577 [6] 2000 AIR (SC) 426 [7] 1967 SCR-1-898 [8] 2005-CRIMES(S.C.)-2-284