1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION SUIT SUIT SUIT NO. NO. NO. 3048 OF 1995 3048 OF 1995 3048 OF 1995 Crest Crest Crest Papers Mills Ltd .. Papers Mills Ltd .. Papers Mills Ltd .. a Public Limited Public Limited Public Limited Company, Company, Company, duly incorporated duly incorporated duly incorporated underthe underthe underthe Companies Act 1956, Companies Act 1956, Companies Act 1956, having having having its Registered office and its Registered office and its Registered office and Mills Mills Mills situate at village situate at village situate at village Kalivali Kalivali Kalivali P.O.Apta, Dist. P.O.Apta, Dist. P.O.Apta, Dist. Raigadh Raigadh Raigadh (Maharashtra State) and (Maharashtra State) and (Maharashtra State) and having having having its Administrative offic its Administrative offic its Administrative office atatat Tarun Plastic Compnd, 2nd Tarun Plastic Compnd, 2nd Tarun Plastic Compnd, 2nd floor, floor, floor, Mogra, Andheri(E) Mogra, Andheri(E) Mogra, Andheri(E) Bombay-400069. Bombay-400069. Bombay-400069. ...... Plaintiffs Plaintiffs Plaintiffs vs vs vs Sharda Sharda Sharda Paper Paper Paper Craft Private Craft Private Craft Private Limited, Limited, Limited, a Private a Private a Private Limited Limited Limited Company, duly Company, duly Company, duly incorporated incorporated incorporated under the Companies under the Companies under the Companies Act, Act, Act, 1956 having its office 1956 having its office 1956 having its office situate situate situate at Post Box No.402, at Post Box No.402, at Post Box No.402, NAGPUR NAGPUR NAGPUR 440 010 and factory at 440 010 and factory at 440 010 and factory at M-7,MIDC, M-7,MIDC, M-7,MIDC, NAGPUR-532 410 NAGPUR-532 410 NAGPUR-532 410 (Maharashtra (Maharashtra (Maharashtra State). State). State). ...... Defendants Defendants Defendants Mr.G.S.Tripathi Mr.G.S.Tripathi Mr.G.S.Tripathi for Plaintiffs for Plaintiffs for Plaintiffs CORAM CORAM CORAM : : : A.S.OKA, A.S.OKA, A.S.OKA, J J J DATED DATED DATED : : : 10th 10th 10th September, 2007 September, 2007 September, 2007 JUDGMENT JUDGMENT JUDGMENT 1.1.1. The plaintiffs have filed this suit against the The plaintiffs have filed this suit against the The plaintiffs have filed this suit against the defendants defendants defendants for a money decree in the sum of for a money decree in the sum of for a money decree in the sum of Rs.2,30,423.69 Rs.2,30,423.69 Rs.2,30,423.69 together with further interest at together with further interest at together with further interest at the the the rate of 18 % p.a. on the sum of rate of 18 % p.a. on the sum of rate of 18 % p.a. on the sum of Rs.1,64,885.20. Rs.1,64,885.20. Rs.1,64,885.20. from the date of filing of the from the date of filing of the from the date of filing of the suit suit suit till realisation. till realisation. till realisation. 2.2.2. According to the case of the plaintiffs, they According to the case of the plaintiffs, they According to the case of the plaintiffs, they are are are the manufacturers and suppliers of various type the manufacturers and suppliers of various type the manufacturers and suppliers of various type of of of craft board papers and other allied materials craft board papers and other allied materials craft board papers and other allied materials produced produced produced relating relating relating to papers. It is stated that the to papers. It is stated that the to papers. It is stated that the plaintiffs plaintiffs plaintiffs in their regular course of business in their regular course of business in their regular course of business 2 during during during the period between 5th June, 1992 till 7th the period between 5th June, 1992 till 7th the period between 5th June, 1992 till 7th September September September 1992 1992 1992 sold and delivered to the defendants sold and delivered to the defendants sold and delivered to the defendants "craft "craft "craft board" papers under 6 different invoices. board" papers under 6 different invoices. board" papers under 6 different invoices. According According According to the plaintiffs, the total cost of the to the plaintiffs, the total cost of the to the plaintiffs, the total cost of the goods goods goods supplied and delivered to the defendants is supplied and delivered to the defendants is supplied and delivered to the defendants is Rs.6,34,875/-. Rs.6,34,875/-. Rs.6,34,875/-. It is stated that the goods were It is stated that the goods were It is stated that the goods were despatched despatched despatched through the transporters. Reliance is through the transporters. Reliance is through the transporters. Reliance is placed placed placed on various consignment notes issued by on various consignment notes issued by on various consignment notes issued by transporters. transporters. transporters. It is stated that the plaintiffs It is stated that the plaintiffs It is stated that the plaintiffs claimed claimed claimed Rs.3520 as freight charges by raising a Rs.3520 as freight charges by raising a Rs.3520 as freight charges by raising a debit debit debit note. It is stated that on account of note. It is stated that on account of note. It is stated that on account of delayed delayed delayed payment of price of the goods, the payment of price of the goods, the payment of price of the goods, the plaintiffs plaintiffs plaintiffs were were were entitled to receive Rs.20,742.20 by entitled to receive Rs.20,742.20 by entitled to receive Rs.20,742.20 by way way way of interest on delayed payment. Debit note of interest on delayed payment. Debit note of interest on delayed payment. Debit note dated dated dated 10th September 1992 was issued accordingly. 10th September 1992 was issued accordingly. 10th September 1992 was issued accordingly. 3.3.3. By a letter dated 5th March 1993 sent by the By a letter dated 5th March 1993 sent by the By a letter dated 5th March 1993 sent by the plaintiffs plaintiffs plaintiffs to the defendants a statement of account to the defendants a statement of account to the defendants a statement of account as as as on 5th March 1993 was forwarded by the on 5th March 1993 was forwarded by the on 5th March 1993 was forwarded by the plaintiffs plaintiffs plaintiffs to the defendants showing that a sum of to the defendants showing that a sum of to the defendants showing that a sum of Rs.4,54,585.20 Rs.4,54,585.20 Rs.4,54,585.20 was was was payable by the defendants to the payable by the defendants to the payable by the defendants to the plaintiffs. plaintiffs. plaintiffs. It is stated that the defendants It is stated that the defendants It is stated that the defendants forwarded forwarded forwarded a cheque in the sum of Rs.25,000/- on a cheque in the sum of Rs.25,000/- on a cheque in the sum of Rs.25,000/- on 10th 10th 10th March 1993. It is stated that along with March 1993. It is stated that along with March 1993. It is stated that along with their their their letter dated 3rd May 1993 sent by the letter dated 3rd May 1993 sent by the letter dated 3rd May 1993 sent by the defendants, defendants, defendants, they forwarded a cheque in the sum of they forwarded a cheque in the sum of they forwarded a cheque in the sum of Rs.2,64,699/- Rs.2,64,699/- Rs.2,64,699/- purportedly in full and final purportedly in full and final purportedly in full and final settlement settlement settlement of the claim of the plaintiffs. Along of the claim of the plaintiffs. Along of the claim of the plaintiffs. Along with with with the said letter, a statement of account was the said letter, a statement of account was the said letter, a statement of account was forwarded forwarded forwarded by the defendants. by the defendants. by the defendants. 4.4.4. According to the plaintiffs, they accepted the According to the plaintiffs, they accepted the According to the plaintiffs, they accepted the 3 cheque cheque cheque in the sum of Rs.2,64,699/- without in the sum of Rs.2,64,699/- without in the sum of Rs.2,64,699/- without prejudice prejudice prejudice to their right to recover the balance to their right to recover the balance to their right to recover the balance amount amount amount and the same was communicted by the and the same was communicted by the and the same was communicted by the plaintiffs plaintiffs plaintiffs to the defendants as well as to one to the defendants as well as to one to the defendants as well as to one Sushil Sushil Sushil Pugaliya. It is stated that the said fact Pugaliya. It is stated that the said fact Pugaliya. It is stated that the said fact was was was telephonically communicated to one Mr.Prakash telephonically communicated to one Mr.Prakash telephonically communicated to one Mr.Prakash Agarwal, Agarwal, Agarwal, the concerned officer in charge of the the concerned officer in charge of the the concerned officer in charge of the defendants. defendants. defendants. The plaintiffs also made a request to The plaintiffs also made a request to The plaintiffs also made a request to return return return the rejected material. As there was no the rejected material. As there was no the rejected material. As there was no response response response from the defendants, by letter dated 1st from the defendants, by letter dated 1st from the defendants, by letter dated 1st October, October, October, 1993 the plaintiffs called upon the 1993 the plaintiffs called upon the 1993 the plaintiffs called upon the defendants defendants defendants to to to return the material as referred to in return the material as referred to in return the material as referred to in the the the defendant’s own statement of account. By a defendant’s own statement of account. By a defendant’s own statement of account. By a further further further letter dated 24th September, 1994 sent by letter dated 24th September, 1994 sent by letter dated 24th September, 1994 sent by the the the plaintiffs to the defendants, the plaintiffs plaintiffs to the defendants, the plaintiffs plaintiffs to the defendants, the plaintiffs called called called upon the defendants to pay the balance upon the defendants to pay the balance upon the defendants to pay the balance amount amount amount of Rs.1,64,886.20. It is alleged that of Rs.1,64,886.20. It is alleged that of Rs.1,64,886.20. It is alleged that though though though the said letter was received by the the said letter was received by the the said letter was received by the defendants, defendants, defendants, there was no response from the there was no response from the there was no response from the defendants. defendants. defendants. It is stated in the plaint that as per It is stated in the plaint that as per It is stated in the plaint that as per the the the books of accounts maintained by the plaintiffs books of accounts maintained by the plaintiffs books of accounts maintained by the plaintiffs a sum sum sum of Rs.1,64,84,620/- was found due and payable of Rs.1,64,84,620/- was found due and payable of Rs.1,64,84,620/- was found due and payable by by by the defendants. It is stated that even the defendants. It is stated that even the defendants. It is stated that even according according according to the case of the defendants, they are to the case of the defendants, they are to the case of the defendants, they are liable liable liable to return the material worth Rs.1,10,892/- to return the material worth Rs.1,10,892/- to return the material worth Rs.1,10,892/- toto to the plaintiffs. However, the defendants have the plaintiffs. However, the defendants have the plaintiffs. However, the defendants have failed failed failed to return the material. to return the material. to return the material. 5.5.5. The suit was contested by the defendants by The suit was contested by the defendants by The suit was contested by the defendants by filing filing filing the written statement. The defendants the written statement. The defendants the written statement. The defendants denied denied denied their their their liability to pay the amount as claimed liability to pay the amount as claimed liability to pay the amount as claimed by by by the plaintiffs. According to the defendants, the plaintiffs. According to the defendants, the plaintiffs. According to the defendants, 4 some some some of of of the goods received from the plaintiffs were the goods received from the plaintiffs were the goods received from the plaintiffs were inin in wet wet wet condition. When this was pointed out by the condition. When this was pointed out by the condition. When this was pointed out by the defendants defendants defendants to the plaintiffs, on the request made to the plaintiffs, on the request made to the plaintiffs, on the request made by by by the plaintiffs, the goods were got surveyed by the plaintiffs, the goods were got surveyed by the plaintiffs, the goods were got surveyed by the the the defendants and the survey report was forwarded defendants and the survey report was forwarded defendants and the survey report was forwarded toto to the plaintiffs. It is stated that there is no the plaintiffs. It is stated that there is no the plaintiffs. It is stated that there is no dispute dispute dispute between the parties that goods worth between the parties that goods worth between the parties that goods worth Rs.1,10,892/- Rs.1,10,892/- Rs.1,10,892/- were found to be defective. The were found to be defective. The were found to be defective. The defendants defendants defendants denied that the cheque in the sum of denied that the cheque in the sum of denied that the cheque in the sum of Rs.2,64,699/- Rs.2,64,699/- Rs.2,64,699/- was encashed by the plaintiffs was encashed by the plaintiffs was encashed by the plaintiffs without without without prejudice to their rights and contentions. prejudice to their rights and contentions. prejudice to their rights and contentions. ItItIt is contended that the material received by the is contended that the material received by the is contended that the material received by the defendants defendants defendants was in wet condition and the survey was in wet condition and the survey was in wet condition and the survey report report report disclosed 100 % loss. Lastly, it is disclosed 100 % loss. Lastly, it is disclosed 100 % loss. Lastly, it is contended contended contended that it was for the plaintiffs to take that it was for the plaintiffs to take that it was for the plaintiffs to take back back back the defective goods worth Rs.1,10,897/- and the defective goods worth Rs.1,10,897/- and the defective goods worth Rs.1,10,897/- and inspite inspite inspite of repeated communications, the plaintiffs of repeated communications, the plaintiffs of repeated communications, the plaintiffs have have have failed to take back the goods. failed to take back the goods. failed to take back the goods. 6.6.6. On 29th July, 2004 following issues were framed On 29th July, 2004 following issues were framed On 29th July, 2004 following issues were framed 1.1.1. Whether the plaintiffs prove that the Whether the plaintiffs prove that the Whether the plaintiffs prove that the plaintiffs plaintiffs plaintiffs sold and delviered the "Kraft sold and delviered the "Kraft sold and delviered the "Kraft Board" Board" Board" goods to the defendants and the same goods to the defendants and the same goods to the defendants and the same were were were duly accepted and acknowledged by the duly accepted and acknowledged by the duly accepted and acknowledged by the defendants defendants defendants ? ? ? 2.2.2. Whether the defendants prove that "Kraft Whether the defendants prove that "Kraft Whether the defendants prove that "Kraft Board" Board" Board" goods were received by them in wet goods were received by them in wet goods were received by them in wet conditioned conditioned conditioned and not in accordance with the and not in accordance with the and not in accordance with the order order order ? ? ? 3.3.3. Whether the defendants prove that the Whether the defendants prove that the Whether the defendants prove that the suit suit suit is is is barred by law of limitation ? barred by law of limitation ? barred by law of limitation ? 4.4.4. Whether the defendants prove that this Whether the defendants prove that this Whether the defendants prove that this Hon’ble Hon’ble Hon’ble Court Court Court have no jurisdiction ? have no jurisdiction ? have no jurisdiction ? 5.5.5. Whether the plaintiffs are entitled for Whether the plaintiffs are entitled for Whether the plaintiffs are entitled for decree decree decree as as as prayed for and interest ? prayed for and interest ? prayed for and interest ? 6.6.6. What order as to costs ? What order as to costs ? What order as to costs ? 5 7.7.7. The plaintiffs led evidence of Rajendra Singh The plaintiffs led evidence of Rajendra Singh The plaintiffs led evidence of Rajendra Singh its its its Managing Managing Managing Director by filing his affidavit dated Director by filing his affidavit dated Director by filing his affidavit dated 25th 25th 25th August, 2004 in lieu of evidence. On 10th August, 2004 in lieu of evidence. On 10th August, 2004 in lieu of evidence. On 10th January, January, January, 2005 Advocate for the defendants cross- 2005 Advocate for the defendants cross- 2005 Advocate for the defendants cross- examined examined examined the the the said witness for sometime and the suit said witness for sometime and the suit said witness for sometime and the suit was was was adjourned to 17th September, 2005 for further adjourned to 17th September, 2005 for further adjourned to 17th September, 2005 for further cross cross cross examination. On 17th September, 2005 examination. On 17th September, 2005 examination. On 17th September, 2005 Advocate Advocate Advocate for for for the defendants cross examined the said the defendants cross examined the said the defendants cross examined the said witness witness witness for sometime and suit was adjourned to 31st for sometime and suit was adjourned to 31st for sometime and suit was adjourned to 31st January, January, January, 2005 for further cross examination. 2005 for further cross examination. 2005 for further cross examination. 8.8.8. The Order dated 9th March, 2005 was passed by The Order dated 9th March, 2005 was passed by The Order dated 9th March, 2005 was passed by this this this Court Court Court records that advocate for the defendants records that advocate for the defendants records that advocate for the defendants was was was absent on that day and by way of last chance, absent on that day and by way of last chance, absent on that day and by way of last chance, suit suit suit was adjourned till 21st March, 2005 for was adjourned till 21st March, 2005 for was adjourned till 21st March, 2005 for completing completing completing the the the cross examination. Order dated 25th cross examination. Order dated 25th cross examination. Order dated 25th April, April, April, 1995 records that the defendants and their 1995 records that the defendants and their 1995 records that the defendants and their advocates advocates advocates were absent. Therefore, the witness of were absent. Therefore, the witness of were absent. Therefore, the witness of the the the plaintiffs was discharged and on 13th June, plaintiffs was discharged and on 13th June, plaintiffs was discharged and on 13th June, 2005 2005 2005 suit was kept for passing ex parte order. suit was kept for passing ex parte order. suit was kept for passing ex parte order. When When When the suit was listed before this Court for the suit was listed before this Court for the suit was listed before this Court for directions, directions, directions, none appeared for the defendants. none appeared for the defendants. none appeared for the defendants. Learned Learned Learned counsel counsel counsel for the plaintiffs made a statement for the plaintiffs made a statement for the plaintiffs made a statement that that that the plaintiffs were not desirous of examining the plaintiffs were not desirous of examining the plaintiffs were not desirous of examining any any any other witness and hence, the suit was kept on other witness and hence, the suit was kept on other witness and hence, the suit was kept on 6th 6th 6th September, 2007 for recording the evidence of September, 2007 for recording the evidence of September, 2007 for recording the evidence of the the the defendants. None appeared for the defendants defendants. None appeared for the defendants defendants. None appeared for the defendants on on on that day. Therefore, arguments were heard on that day. Therefore, arguments were heard on that day. Therefore, arguments were heard on that that that day. Today, the suit is kept for dictation day. Today, the suit is kept for dictation day. Today, the suit is kept for dictation judgment. judgment. judgment. Today, when the suit is called out, none Today, when the suit is called out, none Today, when the suit is called out, none appear appear appear for the defendants. for the defendants. for the defendants. 6 9.9.9. I have perused the notes of evidence, I have perused the notes of evidence, I have perused the notes of evidence, the he he documents documents documents produced by the plaintiffs and the produced by the plaintiffs and the produced by the plaintiffs and the pleadings pleadings pleadings of of of the parties. In view of the averments the parties. In view of the averments the parties. In view of the averments made made made in the written statement, I find that there is in the written statement, I find that there is in the written statement, I find that there is no no no dispute dispute dispute about supply of goods under six invoices about supply of goods under six invoices about supply of goods under six invoices set set set out in para 2 of the plaint by the plaintiffs out in para 2 of the plaint by the plaintiffs out in para 2 of the plaint by the plaintiffs toto to the defendants. The witness examined by the the defendants. The witness examined by the the defendants. The witness examined by the plaintiff plaintiff plaintiff Mr.Rajendra Singh has set out in Mr.Rajendra Singh has set out in Mr.Rajendra Singh has set out in his affidavit affidavit affidavit in lieu of evidence the details of the in lieu of evidence the details of the in lieu of evidence the details of the various various various payments made by the defendants. The payments made by the defendants. The payments made by the defendants. The plaintiffs plaintiffs plaintiffs have produced a letter dated 14th have produced a letter dated 14th have produced a letter dated 14th December, December, December, 1992 sent by the defendants. The said 1992 sent by the defendants. The said 1992 sent by the defendants. The said letter letter letter has has has been marked as Exhibit P-5. The witness been marked as Exhibit P-5. The witness been marked as Exhibit P-5. The witness has has has referred to a letter dated 18th December, 1992 referred to a letter dated 18th December, 1992 referred to a letter dated 18th December, 1992 sent sent sent by the plaintiffs to the defendants enclosing by the plaintiffs to the defendants enclosing by the plaintiffs to the defendants enclosing therewith therewith therewith a statement of account maintained by the a statement of account maintained by the a statement of account maintained by the plaintiffs. plaintiffs. plaintiffs. The said letter has been marked as The said letter has been marked as The said letter has been marked as Exhibit Exhibit Exhibit P-6. In the letter dated 14th December, P-6. In the letter dated 14th December, P-6. In the letter dated 14th December, 1992 1992 1992 the defendants expressed various difficulties the defendants expressed various difficulties the defendants expressed various difficulties encountered encountered encountered by by by them. In reply dated 18th December, them. In reply dated 18th December, them. In reply dated 18th December, 1992 1992 1992 the plaintiffs pointed out that they were the plaintiffs pointed