THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A.NO.5 OF 2001 JUDGMENT The defendant in O.S.No.949 of 1993 on the file of the V Senior Civil Judge, City Civil Court, Hyderabad, is the appellant herein. The suit was filed for recovery of Rs.1,96,951.69 Ps. being the value of the goods supplied by the plaintiff to the defendant. The allegations in the plaint go to show that the plaintiff firm is a manufacturer of Poultry Feed Supplements. The defendant has got his business and on the basis of the invoices and on the request of the defendant the feed was supplied and a sum of Rs.1,42,165-50 Ps. was due by 28.10.1991. The particulars of the invoices were mentioned in the documents and they relate from 22.12.1989 to 28.10.1991. In spite of demands, the defendant did not pay the amount and the claim was made with interest at 21% p.a. The defendant filed a written statement admitting the transaction between the plaintiff and the defendant. It was pleaded that the goods were returned as they were of substandard quality and the acknowledgement on the reverse of the invoice was obtained from the representative and therefore, the suit is liable to be dismissed. There is no cause of action to file the suit and therefore, the suit is liable to be dismissed. On the basis of the above pleadings, the following issues have been framed for trial:- 1. Whether the plaintiff is entitled for the suit amount with interest and costs as prayed for? 2. To what relief? On behalf of the plaintiff, P.W.1 was examined and marked Ex.A.1 to A.4 and on behalf of the defendant, D.W.1 was examined and marked Ex.B.1 to B.11. After considering the evidence on record, the learned V Senior Civil Judge, City Civil Court, Hyderabad, decreed the suit of the plaintiff and aggrieved by the said judgment, the present appeal is filed. The points that arise for consideration are :- 1. Whether the defendant is not liable to pay the suit amount since the goods were returned, as they are of substandard? 2. Whether the judgment and decree passed by the learned V Senior Civil Judge, City Civil Court, Hyderabad, is legal and sustainable? POINT NO.1:- The claim of the plaintiff relates to the value of the feed, which is said to have been supplied by the plaintiff to the defendant. The suit claim relates to the invoices Ex.A.3 to A.11, which are as follows:- Sl.No. Exhibit Date Invoice No. Amount 1. Ex.A.3 21.05.1990 48 2045-00 2. Ex.A.4 22.12.1989 486 1022-50 3. Ex.A.5 14.08.1991 127 20541-00 4. Ex.A.6 23.07.1991 95 19839-60 5. Ex.A.7 30.08.1991 152 2250-00 6. Ex.A.8 10.09.1991 170 10332-00 7. Ex.A.9 21.09.1991 186 36810-00 8. EX.A.10 28.10.1991 NIL 49030-92 9. Ex.A.11 28.10.1991 230 49325-40 The statement of account is filed, which is marked Ex.A.13 showing the particulars of the invoices, which is as follows:- Date Particulars Amount 22.12.89 TO Inv. No.480 1022-50 19.05.90 TO Inv.No.48 2045-00 23.07.91 TO Inv.No.95 19839-60 17.08.91 TO Inv.No.127 20541-00 30.08.91 TO Inv.No.152 2250-00 10.09.91 TO Inv.No.170 10332-00 21.09.91 TO Inv.No.186 36810-00 28.10.91 TO Inv.No.230 49325-40 ____________ 142165-50 ____________ BALANCE (DEBIT) Rs.142165-50 All the invoices bear an acknowledgement of the defendant about the delivery of the items supplied to the defendant. Except Ex.A.11 dated 28.10.1991 all other endorsements contain the acknowledgement of receipt of the goods. Corresponding to these invoices, the defendant also filed the bills Exs.B.1 to B.7. Ex.B.1 pertains to the invoice dated 28.10.1991 though the corresponding endorsement was not there on Ex.A.11. This Ex.B.1 contains the acknowledgement of receipt of 335 packets. In fact, all the endorsements on Exs.B.1 to B.7 and Ex.A.1 to A.10 bear the signature of the same person. The learned counsel for the appellant strongly contends that the goods were rejected as they were of substandard quality and the endorsement of the driver or the cleaner were taken and therefore, there is no liability. Evidently, in case of sale of goods if the purchaser of the goods is to reject the supply on the ground of substandard nature of the case, the burden is on the said person to show that the goods were of substandard quality and before returning the same notice also should be given to the party about the rejection. But in this case, on Exs.A.1 to A.11 no endorsement of rejection of the goods were made. Evidently, Exs.B.1 to B.7 are in the custody of the defendant and therefore, the lower Court found that such endorsement cannot be taken into consideration without proof of actual return of the same to the plaintiff. One fails to understand as to how continuous supply was made for a period of more than one year if at the earliest point of time itself the defendant has rejected the goods as of substandard nature. It is to be noted that at no point of time, the defendant has complained in writing to the plaintiff about the substandard nature of supply of the goods. Therefore, mere endorsement contained on Exs.B1 to B.7, which are in the custody of the defendant cannot be taken as proof that they have been returned or rejected for want of quality. There is also no material evidence produced by the defendant to show that the goods were tested by a competent person and that he gave the opinion for the reasons of the goods being of substandard quality. In fact, the evidence of D.W.1 also does not show as to on what ground the goods were branded as substandard. Therefore, in view of the above circumstances, Exs.B.1 to B.7 cannot be given much credence. It is common knowledge when the goods are brought under invoice the acknowledgement of the receipt of the goods will be made on the copy of the invoice, which will be given to the supplier Exs.A.1 to A.11 are such invoices. Evidently, on such invoices, there is no endorsement corresponding to the endorsement contained on Exs.B.1 to B.7. Therefore, the plea of the defendant does not appear to be correct. According to the contention of the learned counsel for the defendant, there are three invoices and another invoice was suppressed for which there is no material. When an issue is in dispute the defendant should have summoned the cleaner or the driver, who has endorsed on Exs.B.1 to B.7 about the receipt of the goods. In common practice and when the transactions are done by the plaintiff and the defendant continuously one fails to understand as to how when once the goods are of substandard qualities the defendant could have asked for supply of the goods periodically. Therefore, the circumstances doesn’t show that the claim of the defendant about the rejection of the goods and return of the goods being of substandard quality is correct or real. The endorsement on Exs.A.1 to A.10 and Ex.B.1 clearly go to show that the goods were received by the defendant. Therefore, the learned V Senior Civil Judge, has no sufficient reasons to discard the contention of the defendant and I have no hesitation in holding that the defendant received the goods and the amounts were not paid. Ex.B.1 to B.7 cannot be given much credence about the endorsement of return. The learned counsel for the appellant pleaded that charging of interest at 21% per annum is on a higher side. Taking into consideration the nature of the transaction between the plaintiff and the defendant, the appeal is allowed in part and the suit of the plaintiff is decreed for a sum of Rs.1,42,165.50 Ps. with interest at 12% per annum from 28.10.1991 till the date of decree and at 6% per annum till the date of realisation. The plaintiff will be entitled to the proportionate costs in the lower Court. Each party do bear their own costs in the appeal. ______________________ N.R.L.NAGESWARA RAO,J 17th February 2011 bud