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2019 DIGILAW 1550 (KAR)

Zodiac Clothing Company Ltd. v. R. J. Fashions

2019-07-03

H.B.PRABHAKARA SASTRY

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JUDGMENT : H.B. Prabhakara Sastry, J. The suit of the present appellant - Company in its capacity as a plaintiff against the present respondents arraigning them as defendants for recovery of a sum of Rs.5,10,799-17 came to be dismissed by the Court of the XXVI Additional City Civil Judge at Mayohall, Bangalore (CCH-20) (hereinafter for brevity referred to as "Trial Court") by its judgment and decree dated 01-02-2011 in O.S.No.15674/2004. It is against the said judgment and decree, the plaintiff - Company has preferred this appeal. 2. The summary of the case of the plaintiff - Company in the Trial Court was that, it is a Company manufacturing ready-made garments and accessories. Another Company by name M/s. Mayfair Limited had supplied certain goods to the defendant No.1 - M/s. R.J. Fashions represented by its partners who are defendant Nos. 2 to 4. At the relevant point of time, the defendants were due in a sum of Rs.2,99,457-45 to the said M/s. Mayfair Limited. Subsequently, the said M/s. Mayfair Limited under Company Petition No.326/2003 before this Hon'ble High Court was amalgamated with the present appellant - Company under Sections 391 and 394 of the Companies Act, as such, all the assets and liabilities and entitlement of the said Company - M/s. Mayfair Limited came to be converted in the name of M/s Zodiac Clothing Company Limited, which is the appellant (plaintiff - Company) herein. It is thereafter the said plaintiff - Company called for the defendants for repayment of the said principal amount together with interest thereupon for a sum of Rs.2,11,341-72, in total amounting to a sum of Rs.5,10,799-17. Since the defendants failed to repay the said amount, the plaintiff - Company was constrained to institute a suit against them. 3. In response to the summons received by them, the defendants 1 to 4 appeared through their counsel and filed their common Written Statement. In the said Written Statement, though the defendants submitted that they had transactions with M/s. Mayfair Limited, but, denied that they are in any manner, due in a sum of Rs.2,99,457-45 to the said Company. On the other hand, they contended that at different points of time, the defendant No.1 - firm has made payment to M/s. Mayfair Limited. In the said Written Statement, though the defendants submitted that they had transactions with M/s. Mayfair Limited, but, denied that they are in any manner, due in a sum of Rs.2,99,457-45 to the said Company. On the other hand, they contended that at different points of time, the defendant No.1 - firm has made payment to M/s. Mayfair Limited. They have given the details of the Demand Draft number and the amounts paid by them to the said M/s. Mayfair Limited and stating that they have made an excess payment than what was due to M/s. Mayfair Limited at the relevant time, the defendants had prayed for dismissal of the suit. 4. Based on the pleadings of the parties, the Trial Court framed the following issues:- "[1] Whether plaintiff proves that defendants No.2 to 4 had made business transaction with erstwhile M/s. Mayfair Ltd., Bangalore which was amalgamated with plaintiff company? [2] Whether plaintiff proves that under the different invoices purchases were made by defendants an amount of Rs.2,99,457-40 towards principal is due? [3] Whether plaintiff proves that it is entitled interest at the rate of 24% p.a. and an amount of Rs.2,11,341.72 is due towards interest? [4] Whether defendants proves that they have paid the suit claim to M/s. Mayfair Ltd.,? [5] Whether the suit of the plaintiff is barred by time? [6] Whether defendant proves that adjustment of payments made by plaintiff is incorrect? [7] Whether plaintiff is entitled for the relief's claimed in the plaint? [8] What decree or order?" In support of its suit, the plaintiff got examined one Sri.Dinesh N.K., the then Accounts Assistant and Power of Attorney and authorised signatory of the plaintiff Company as PW-1 and through him got marked Exs.P-1 to P-30 and the defendants neither examined any witnesses from their side nor produced and got marked any documents as Exhibits. 5. After hearing both side, the Trial Court in its judgment dated 01-02-2011 answered issue Nos.1, 4 and 6 in the 'affirmative' and issue Nos.2, 3, 5 and 7 in the 'negative' and proceeded to dismiss the suit of the plaintiff. It is against the said judgment and decree, the plaintiff has preferred this appeal. 6. The Lower Court records were called for and the same are placed before this Court. 7. It is against the said judgment and decree, the plaintiff has preferred this appeal. 6. The Lower Court records were called for and the same are placed before this Court. 7. Heard the arguments of the learned counsel for appellant and perused the material placed before this Court including the memorandum of appeal and the impugned judgment. 8. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively. 9. In view of the fact that the Trial Court has answered issue No.1 in the 'affirmative', the said issue need not be analysed again as to whether the defendants had made business transactions with erstwhile M/s. Mayfair Limited. It is only issue No.2 framed by the Court below as to whether the plaintiff has proved that a sum of Rs.2,99,457-40 is due from the defendants? requires a re-visit. 10. As such, the only point that arise for my consideration is, whether the Trial Court has committed an error by answering issue No.2 in the 'negative'? 11. Learned counsel for the plaintiff/appellant in his brief argument submitted that in view of the fact that the defendants have admitted the business transactions with the plaintiff Company and also in view of the fact that the invoices produced by them mention about the goods supplied to the defendants, the dues by the defendants towards the plaintiff stands established. Further relying upon Ex.P-29 which is a Ledger Account Extract, learned counsel for the plaintiff/ appellant submitted that the entries shown in the said document as on 31-03-2002 showing that a sum of Rs.2,92,034-27 is due would also further prove the case of the plaintiff - Company. 12. It is a settled principle that a person who approaches the Court praying for a relief has to prove that he is entitled for the said relief. In its averment, if the plaintiff has averred any particular transaction as against the defendants and claimed any amount as due from the defendants, under some invoices the defendants though admit such a transaction but not the liability, still the burden to prove both the alleged amount due would be upon the plaintiff. In that process, the plaintiff has to prove its case making it to stand on its own legs, rather than relying upon the alleged weaknesses in the case of the defendants. 13. In that process, the plaintiff has to prove its case making it to stand on its own legs, rather than relying upon the alleged weaknesses in the case of the defendants. 13. In the instant case, as already observed above, the Trial Court while answering issue No.1 has held that the plaintiff could able to prove that there was business transaction between the defendants - firm and the erstwhile Company, viz. M/s. Mayfair Limited. Since the present appeal is by the plaintiff itself, the issue which has already been answered in its favour need not be reconsidered or re-analysed again. 14. As such, the only point would be, whether the plaintiff could able to prove with cogent evidence that, as on the date of institution of the suit, the defendants were liable towards the principal amount of a sum of Rs.2,99,457-45? 15. The documents which the plaintiff has produced as invoice copies as per Exs.P-5 to P-14 would no way go to show that the defendants have admitted any amount mentioned therein as the amount due by them. Though the said documents would go to show that some quantity of goods are shown to have been mentioned as sold or agreed to be sold to the defendants, by that itself, it cannot be deduced that the amounts mentioned as against those goods are the amounts due for payment from the defendants to the plaintiff. It is in that regard from the defendants' side, PW-1 has been extensively cross-examined and the said witness could not show that the amounts shown therein are undisputed or agreed amount due from the defendants to the plaintiff. It is only thereafter the plaintiff at a belated stage has produced Exs.P-29 and P-30 as the Ledger Account extracts to show the alleged due of a sum of Rs.2,99,457-45 from the defendants towards the plaintiff - Company. The defendants have disputed the correctness of the entries shown in the said document. It is in that regard, in the crossexamination of PW-1, it was suggested to the witness that the said Ledger Account extract at Ex.P-29 which is for a period from 01-04-2001 to 31-03-2002 does not bear any reference about the Demand Draft No.964752 referred by PW-1 in his Affidavit evidence in the form of Examination-in-chief. The witness has admitted the said suggestion as 'true'. 16. The witness has admitted the said suggestion as 'true'. 16. Interestingly, it is not just in the Affidavit filed by PW-1, even at the earliest point of time in their plaint also, the plaintiff has clearly and categorically stated in para-11 of the plaint that it has received some amounts from the defendants through Demand Draft No.964752 on 22-09-2001. The very same averment has been reproduced by PW-1 in his Examination-in-chief in the form of Affidavit evidence. As such, had they really received some quantum of amount towards the alleged due payable by the defendants to the plaintiff in the form of Demand Draft No.964752 on 22-09-2001, then, it should have been necessarily reflected in the Ledger Account extract pertaining to the relevant year i.e. 2001-02 which is at Ex.P-29. As admitted by PW-1, there is no reference of the said Demand Draft No.964752 in the said Ex.P-29. Therefore, the very correctness and authenticity of the said Ex.P-29 becomes doubtful. 17. Added to the above, the very same PW-1 who has given evidence on behalf of the plaintiff as a sole witness has also answered a question in his cross-examination that, he does not know if under the said Demand Draft (No.964752) defendants had paid a sum of Rs.1,50,000/-. Thus, being a sole witness representing the plaintiff in this case, PW-1 apart from admitting that Ex.P-29 does not reflect the entries with respect to the Demand Draft No.964752 has also expressed his ignorance about the amount which the said Demand Draft was carrying with it. 18. Therefore, when it is the specific contention of the defendants that there are no due of any amount, much less a sum of Rs.2,99,457-45 and when it was the sole burden upon the plaintiff to prove that the defendants were due for that amount, then, the statement of PW-1 that the Ledger Account extract at Ex.P-29 omits certain entries and also he does not know what amount the said demand Draft was carrying, makes the said document unsafe to rely upon or to believe. 19. Learned counsel for the plaintiff/appellant in his argument, while drawing the attention of this Court to the entries at Ex.P-29 - Ledger Account extract as on 31-03-2002 submitted that, the entry shown in the debit column of the said ledger extract showing a debit entry for a sum of Rs.2,99,034-27 is the due amount payable by the defendants. 19. Learned counsel for the plaintiff/appellant in his argument, while drawing the attention of this Court to the entries at Ex.P-29 - Ledger Account extract as on 31-03-2002 submitted that, the entry shown in the debit column of the said ledger extract showing a debit entry for a sum of Rs.2,99,034-27 is the due amount payable by the defendants. I am not inclined to accept the said argument for the following reasons:- [i] According to the plaintiff, the total principal amount due as on the said date is Rs.2,99,457-45, whereas the alleged entry as on 31-03-2002 in Ex.P-29 is in a sum of Rs.2,92,034-27. As such, these two amounts do not tally; [ii] On the very same day, there is one more entry in the same Ex.P-29 in the name of the defendant No.1 - firm, showing the receipt of a sum of Rs.67,925/- by the plaintiff - Company. Thus, if the first entry as on 31-03-2002 is accepted, the second entry of credit made by the defendants in favour of the plaintiff admitted by the plaintiff by reflecting the same in their Ledger extract also to be taken into account. In such an event, the alleged outstanding liability would further reduce by a substantial amount which is much lower than the suit claim under the name of the principal amount of a sum of Rs.2,99,457- 45. As such also, when the very document which is nothing but a Ledger Account extract produced by the plaintiff solely relying upon the entries made upon by themselves does not reflect all the transactions in its correct form and certain transactions which are admitted have not been reflected therein, the very document cannot be relied upon. In that regard, the argument of the learned counsel for the plaintiff/appellant is not acceptable. 20. On the other hand, the Trial Court after appreciating the evidence placed before it, both oral and documentary, and by passing a reasoned order has answered issue No.2 in the 'negative' which has led in dismissal of the suit filed by the plaintiff. 21. In view of the above re-appreciation of the evidence and the materials made by me, I find no error in the said finding recorded by the Trial Court. 21. In view of the above re-appreciation of the evidence and the materials made by me, I find no error in the said finding recorded by the Trial Court. Accordingly, I proceed to pass the following: ORDER [i] The appeal is dismissed; [ii] The judgment and decree dated 01-02-2001 passed in O.S.No.15674/2004 by the XXVI Additional City Civil Judge at Mayohall, Bangalore (CCH-20), is hereby confirmed; [iii] There is no order as to costs. Registry to transmit a copy of this judgment along with the Lower Court records to the concerned Trial Court, without delay.