IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.08.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.48 of 2001 M/s.aishnavi Leathers Carring n business at No.796, 12'A' Cross, 23rd Main J.P.Nagar, Bangalore-560 078. .. Appellant/Defendant -vs- Multizhip Pvt. Ltd. Rep by its Director Mrs.Vijaya W/o.Sashi Shekar Regd. Off. At 380 Mugappair Industrial Estate, Mugappair, Chennai – 600 050. .. Respondent/Plaintiff Prayer:- This Appeal has been filed under Section 96 of CPC against the judgment and decree dated 23.12.1998 in O.S.No.591 of 1996 on the file of the III Additional Judge, City Civil Court, Chennai. For appellant : Mr.T.E.Baskar, Advocate for M/s. Chitra Sampath For respondent : Mr.Ashok Kumar, Advocate JUDGMENT This appeal has been directed against the decree and judgment in O.S.No.591 of 1996 on the file of the Court of III Additional Judge, City Civil Court, Chennai. 2.Even though the appeal was posted under the caption 'For Dismissal', the learned counsel for the appellant present in the Court and argued the appeal, but there was no representation for the respondent. 3.The averments in the plaint in brief are as follows:- The plaintiffs are carrying on their business in zipper materials and based on the orders placed by their customers, the plaintiff/company supplied goods to them. The defendant's representative approached the plaintiff-company on various dates prior to the year 1992 and purchased zipper materials from the https://hcservices.ecourts.gov.in/hcservices/ petitioner-company. The defendant enjoyed credit facilities and had running credit for Multizip Pvt. Ltd., account with the plaintiff-company. The plaintiff-company sold and delivered goods to the defendant on various dates. As per the books of accounts maintained by the plaintiff-company, after giving credit to the payments made by the defendant, still there is a balance of Rs.3,40,115/16 due and payable by the defendant. The statement of account failed along with the plaint reflects the said amount. After adjusting the payments from the amount outstanding by the defendant towards the goods supplied by the plaintiff, the defendant-company is liable to pay to the plaintiff a sum of Rs.3,04,115/16 towards principal. Further as per the terms and conditions of sale, since the defendant has failed to pay the amount in respect of purchases made by them within the agreed time limit, they are liable to pay interest at 18% pa from 5.9.1992 on the principal sum of Rs.3,04,115/16 as on date which works out to Rs.1,59,660/84. This in all the amount due from the defendant to the plaintiff comes to Rs.4,63,776/-. In spite of the repeated demands, the defendant has failed to pay the suit amount to the plaintiff. Hence, the suit. 4.The defendant-company in their written statement would contend that the defendant concern was started 7 years back and is doing the business of manufacturing and exporting leather garments to several countries with turnover in crores of rupees. Through out our concern has been profitable and has strenuously built a strong reputation for quality and reliability internationally. The plaintiff company was one of several suppliers of small raw materials to the defendant viz., zip fastenrs, buttons etc. They supplied these small items between February-1992 and August-1992 to the tune of few lakhs of rupees. However, the supplies of the respondent were defective and of very poor quality. The defendant had continuously received the following remarks/complaints from their production technicians as listed below:- a)Zippers are black and no uniformity in teeth b)Slider cracks/demages c)Teeth gaps are more d)Teeth/tape alignment is not proper etc., These defects have been repeatedly intimated to the plaintiff and one such letter written to them on 16.09.1992 is also filed by the plaintiff. Several of the plaintiff's goods have been rejected and returned. Several consignments of the plaintiff were rejected and intimated to the plaintiff and they did not come and collect the same. Further several of the defendant's export consignments using the plaintiff's receipts were rejected by the defendant's overseas purchasers and the defendant had been put to heavy loss. Thus several calls made by the defendant to the plaintiff requesting them to come and check their defective supplies and replace the same had fallen into deaf ears. The plaintiff never visited the factory of the defendant. The plaintiff is bound to make good the loss incurred by the defendant due to the plaintiff's defective supply of zips. The plaintiff had filed complaint before the District Consumer https://hcservices.ecourts.gov.in/hcservices/ Redressal Forum, Chennai, in O.P.No.158 and 1158 of 1994 against the defendant. But the District Consumer Redressal Forum had dismssed both the complaints. That is why the plaintiff has filed this suit suppressing the above said facts. The defendants are no liable to pay any amount to the plaintiff much less the one claimed under the plaintiff. The suit is barred by limitation. Hence, the suit is liable to be dismissed with costs. 5.On the above pleadings the learned trial Judge has framed as many as five issues for trial. Before the Trial Court P.W.1 was examined and Ex.A.1 to Ex.A.67 were marked. The defendant has not examined any witness on his side, but has exhibited Ex.B.1 to Ex.B.16 through P.W.1 in his cross-examination. After going through the evidence both oral and documentary, the learned trial Judge has decreed the suit as prayed for with costs, which necessitated the defendant to approach this Court by way this appeal. 6.The points for consideration in this appeal are as follows:- 1)Whether the suit is barred by limitation? 2)Whether the interest claimed by the plaintiff is admissible? 3)Whether the decree and judgment in O.S.No.591 of 1996 on the file of the III Additional Judge, City Civil Court, Chennai, is liable to be set aside for the reasons stated in the memorandum of appeal? 7.Point No.1:- The learned trial judge has framed Issue No.3 for the purpose of deciding the question whether the suit is barred by limitation? At paragraph 7 of his judgment, the Trial Judge has observed that the suit being based on a running account maintained between the plaintiff and the defendant and as per the statement of accounts last cheque payment was made by the defendant on 6.7.1992 under Ex.A.137 for a sum of Rs.1 lakh, the suit is not barred by time since the suit has been filed as early as on 22.08.1995. But the reasoning stated in the lower Court's judgment at para 7 cannot be sustainable because there was no exhibit as Ex.A.137 exhibited in this suit. On the side of the plaintiff only upto Ex.A.67 have been marked. A perusal of Ex.A.67 – statement of accounts will go to show that a sum of Rs.1 lakh was received and credited by the plaintiff between 30.6.1992 and 15.7.1992. But even subsequent to that, on 25.7.1992 a sum of rs.14,086/29 under Ex.B.12 has been given credit to. Subsequently on 12.08.1992 also another sum of Rs.17,201/73 has been given credit to. Subsequently under Invoice No.982 dated 3.9.1992 a sum of Rs.4,534/48 has been given credit to by the plaintiff and under Invoice No.988 dated 5.9.1992 another sum of Rs.5,667/88 has been credited in the accounts maintained by the plaintiff. Ex.A.49 is the Invoice dated 3.9.1992 for a sum of Rs.4,534/48. Ex.A.50 is the Invoice No.988 dated 05.09.1992 for a sum of Rs.5,667/86. Even though during cross-examination of P.W.1 it was suggested on behalf of the defendant that he has not receive the goods under Ex.A.50 and https://hcservices.ecourts.gov.in/hcservices/ Ex.A.49, the same was denied by P.W.1. Under Ex.A.53 the defendant has accepted that the goods under Invoice No.982 dated 3.9.1992 (Ex.A.49) was delivered to them under Delivery Note NO.2190 dated 2.9.1992. The plaint was originally filed before the Court on 22.08.1995 itself. It is seen from Ex.A.49 under Invoice No.982 dated 3.9.1992 that the goods were delivered to the defendant as per Ex.A.53 as per Delivery Note No.2190 on 2.9.1992. So from the last Delivery Note dated 2.9.1992 the suit has been filed within three years. Under the Limitation Act, 1963, under Article 47 as per Ex.A.53 even after delivery of the goods under Invoice NO.982 dated 3.9.1992, which was delivered as per Delivery Note No.2190 dated 2.9.1992, the plaintiff has filed the suit within three years from the date of failure of payment on the running account maintained by the plaintiff under Ex.A.67. So under such circumstance, even though the learned trial Judge has wrongly mentioned the exhibit as Ex.A.137 and also wrongly mentioned the payment of cheque of Rs.1 lakh on 6.7.1992, as per Exs.A.49 & 53 the suit is not barred by limitation. Hence, I hold on Point No.1 that the suit is not barred by limitation. 8.Point No.2 :- The plaintiff has claimed 18% interest for the suit amount. Admittedly there is no agreement for payment of interest between the plaintiff and the defendant for the goods supplied. Only under Ex.A.63 - suit notice the plaintiff has demanded 18% interest for the suit amount. In the written statement the defendant would contend that there is no delay in payment of the dues. The learned counsel for the appellant relying on Section 34 of CPC would contend that even though the defendant is liable to pay interest he is liable to pay only 6% interest in the absence of contract to the contrary. But admittedly the suit transaction is a commercial transaction. Even though there is no agreement for payment of any interest, under Sale of Goods Act the plaintiff is entitled to 9% interest for the suit amount and not 18% interest as claimed by them in the plaint. Hence I hold on Point No.2 that the plaintiff is entitled to claim only 9% interest for the amount due from the defendant and not 18% interest. Point No.2 is answered accordingly. 9.Point No.3 :- In the written statement the defendant would contend that he had rejected the supply made by the plaintiff during February-1992 and August-1992 on the ground that the goods supplied by the plaintiff were defective and on very poor quality. But to substantiate this contention the defendant has not chosen to enter into the box. Admittedly the defendant has not made any counter claim in the suit for the alleged defective supply of goods by the plaintiff during February-1992 and August0-1992. The plaintiff has filed Ex.A.67 – statement of accounts to show that on the date of filing of the suit a sum of Rs.3,04,115/16 is the amount due from the defendant under the suit transaction. For the said amount the plaintiff is entitled to claim only 9% interest per annum and not 18% interest per annum, in the absence of any agreement to pay any interest. Hence, I hold on Point No.3 that the decree and judgment in https://hcservices.ecourts.gov.in/hcservices/ O.S.No.591 of 1996 on the file of the III Additional Judge, City Civil Court, Chennai, is to be modified in respect of interest portion. Point No.3 is answered accordingly. 10.In fine, the appeal is allowed in part and the suit is decreed for Rs.3,04,115/16 with 9% interest per annum from the date of suit till the date of the decree and with future interest at the rate of 6% per annum from the date of decree till the date of realization with proportionate costs. In other respects the appeal is dismissed. Ssv Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Registrar, City Civil Court, Chennai. 2.The Section Officer, VR Section, High Court, Madras. + 1 cc to M/s. Chitra Sampath, Advocate SR No.46361 A.S.No.48 of 2001 TEJ(CO) SR/2.2.2009 https://hcservices.ecourts.gov.in/hcservices/