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2024 DIGILAW 729 (AP)

V. M. Abdul Rasheed v. P. Pandurangaiah Chetty

2024-07-02

V.GOPALA KRISHNA RAO

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JUDGMENT : V. Gopala Krishna Rao, J. 1. This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellants/defendants challenging the Decree and Judgment, dated 08.06.2000, in O.S. No. 96 of 1993 passed by the learned Principal Senior Civil Judge, Chittoor [for short 'the trial Court']. The Respondents herein are the plaintiffs in the said Suit. 2. The respondent No. 1/plaintiff filed a Suit for rendition of true and correct accounts liable to be payable by the defendants with costs and future interest. 3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court. 4. The brief averments of the plaint, in O.S. No. 96 of 1993, are as under: The plaintiff is doing business in selling jaggery on commission basis in Chittoor. The first defendant is the managing partner of the defendant firm and in 1990-1991 the plaintiff firm agreed to sell the jaggery at the higher rate than the rate prevailing at Chittoor. During the year 1990 the medium quality jaggery price was between Rs. 400/-to Rs. 600/-per quintal at Chittoor. The plaintiff agreed to consign the goods as and when demanded by the defendants on phone in 1990. Three loads of 359 quintals and 88 kgs of medium quality jaggery was supplied to defendant on 20.04.1990, 10.07.1990 and 11.07.1990 respectively. The defendants sent demand draft for Rs. 18,000/-on 11.07.1990 towards payment for the three loads of jaggery. The defendants failed to pay the remaining amount inspite of repeated oral and written demands. As per the custom and usage, the plaintiff is entitled to charge interest at 24% p.a. As the defendants failed to account for the balance amount, the plaintiff had constrained to file the suit for rendition of true and proper accounts. 5. The defendants filed written statement by denying the averments mentioned in the plaint and further contended as follows: The defendant firm is having office at Calicut and at Coimbatore and running business on commission basis. The plaintiff sent two loads of jaggery on 20.04.1990 and on 10.07.1990 to Calicut branch, third load of jaggery referred by the plaintiff was supplied to Coimbatore branch office and the same was received by the brother of the first defendant on 07.07.1990. The load sent by the plaintiff on 20.04.1990 was sold by the defendant firm for Rs. The plaintiff sent two loads of jaggery on 20.04.1990 and on 10.07.1990 to Calicut branch, third load of jaggery referred by the plaintiff was supplied to Coimbatore branch office and the same was received by the brother of the first defendant on 07.07.1990. The load sent by the plaintiff on 20.04.1990 was sold by the defendant firm for Rs. 24,206/-and the second load was sold at Rs. 26,790.70 paise. The third load was sold at the rate of Rs. 37,535/-at Coimbatore office. After deducting lorry hire charges, commission etc., the defendants firm paid a total sum of Rs. 72,165.85 paise including the demand draft amount of Rs. 18,000/-. In the month of March 1990 and March 1991, the defendant firm sent sale patti to the plaintiff by post and after receiving the same the plaintiff kept quiet for long time and later filed this suit with malafide intention to gain wrongfully. 6. Based on the above pleadings, the trial Court framed the following issues: (i) Whether the defendants have totally paid Rs. 72,165.85 paise to the plaintiff? (ii) Whether the rate of jaggery in 1990 is between Rs. 400/-to Rs. 600/-per quintal? (iii) Whether the plaintiff is entitled to the suit claim? (iv) To what relief? 7. During the course of trial in the trial Court, on behalf of the Plaintiffs, PW1 was examined and Ex.A1 to Ex.A8 were marked. On behalf of the Defendants DW1 to DW3 were examined and Ex.B1 to Ex.B15 were marked. 8. After completion of the trial and on hearing the arguments of both sides, the trial Court decreed the suit vide its judgment dated 08.06.2000, against which the present appeal is preferred by the appellants/ defendants in the Suit questioning the Decree and Judgment passed by the trial Court. 9. Heard Sri Rajendra Bussa, learned counsel for the appellants and Sri P.V.Raghuram, learned counsel, on behalf of Sri K.S.Gopala Krishnan, learned counsel for the respondents. 10. The learned counsel for the appellants would contend that though the plaintiffs failed to prove the suit claim properly, the learned trial Judge decreed the suit, therefore, the appeal may be allowed by setting aside the decree and judgment passed by the trial Court. 11. 10. The learned counsel for the appellants would contend that though the plaintiffs failed to prove the suit claim properly, the learned trial Judge decreed the suit, therefore, the appeal may be allowed by setting aside the decree and judgment passed by the trial Court. 11. Having regard to the pleadings in the suit, the findings recorded by the trial Court and in the light of rival contentions and submissions made on either side before this Court, the following point would arise for determination: Whether the decree and judgment passed by the trial court needs any interference, if so, to what extent? 12. Point: The case of the plaintiff is that the plaintiff is doing business in selling jaggery on commission basis in Chittoor and the first defendant is the managing partner of the defendant firm and the plaintiff agreed to sell the jaggery at the higher rate than the rate prevailing at Chittoor, the plaintiff further pleaded that the plaintiff agreed to consign the goods as and when demanded by the defendants through phone in the year 1990, and three loads of 359 quintals and 88 kgs of medium quality of jaggery was supplied to the defendant on 20.04.1990, 10.07.1990 and 11.07.1990 respectively. The plaintiff further pleaded that the defendants send a demand draft for Rs. 18,000/-on 11.07.1990 towards payment for the three loads of jaggery and the defendants are liable to pay the remaining amount. 13. The admitted facts by both the parties are the plaintiff company supplied three loads of jaggery in the year 1990 to the defendants' firm. The case of the defendants is that they are doing commission business in jaggery at Calicut and Coimbatore. The supply of jaggery by the plaintiff company to the defendants' firm in the relevant period of time is not at all disputed. The entrustment of jaggery to the defendants' firm by the plaintiff is not at all disputed by the defendants. The plea taken by the defendants is that they have paid an amount of Rs. 72,165.85 paise to the plaintiffs towards the cost of jaggery supplied by the plaintiff. 14. The entrustment of goods to the defendants' firm is admitted by the defendants. Therefore, it is for the defendants to prove that they have paid an amount of rs.72,165.85 paise to the plaintiff. 72,165.85 paise to the plaintiffs towards the cost of jaggery supplied by the plaintiff. 14. The entrustment of goods to the defendants' firm is admitted by the defendants. Therefore, it is for the defendants to prove that they have paid an amount of rs.72,165.85 paise to the plaintiff. It is in the evidence of DW1 that the market value of the black jaggery per quintal during the relevant period was Rs. 200/-and he paid Rs. 18,000/-to the deceased first plaintiff towards the cost of first load of jaggery by way of demand draft and also paid Rs. 72,750/-and odd in respect of three loads of jaggery supplied by way of demand draft. As stated supra, the burden is heavily lies on the defendants to show that they paid the cost of jaggery supplied to them by the plaintiff firm. It is an admitted fact by the plaintiff firm that the deceased first plaintiff received Rs. 18,000/-sent by the defendants' firm by way of demand draft. The defense put forth by the defendants in the written statement is that they have paid in all an amount of Rs. 72,165/-and odd in respect of 3 loads which includes the amount of Rs. 18,000/-already paid earlier. As stated supra, an amount of Rs. 18,000/-was sent by the defendants by way of demand draft. The same is also acknowledged by the plaintiff. 15. To prove the defense, Ex.A1 to Ex.A5 are marked through DW1. Ex.A1 is the office copy of legal notice dated 09.01.1993 sent by the plaintiff. Ex.A2 is the reply notice to Ex.A1 sent by the defendants. Ex.A3 to Ex.A5 are the letters addressed by the plaintiff firm to the defendants company with regard to consignment. 16. To prove the defense, Ex.B1 to Ex.B15 are marked. In cross examination DW1 admits that he is having documentary evidence to show that he paid Rs. 72,165.85 paise in respect of 3 loads of jaggery supplied to them by the plaintiff. But the defendants did not evince any interest to produce the said proof. Admittedly, the defendants have not adduced any evidence to show that they discharged their burden and they paid the amount in full towards the jaggery supplied by the plaintiff on three occasions. 72,165.85 paise in respect of 3 loads of jaggery supplied to them by the plaintiff. But the defendants did not evince any interest to produce the said proof. Admittedly, the defendants have not adduced any evidence to show that they discharged their burden and they paid the amount in full towards the jaggery supplied by the plaintiff on three occasions. As per the evidence of DW3, the account books produced in the Court relates to Coimbatore branch only and the entire amount for 3 loads of jaggery was paid by both the branches at Calicut and Coimbatore branch offices and the Coimbatore branch paid money in cash and he pleaded ignorance about the mode of payment made by Calicut and Coimbatore branch offices. The evidence of DW1 to DW3 fails to prove the defense pleaded by the defendants in the written statement, moreover, there is no pleading in the written statement that the Coimbatore branch failed to pay an amount of Rs. 34,214.50 paise on 22.09.1990. As stated supra, it is for the defendants to prove that they have paid an amount of Rs. 72,165.25 paise towards the jaggery supplied by the plaintiff on credit. It was admitted by DW1 in his evidence in cross examination that there is a documentary evidence to show that the first plaintiff received Rs. 72,165.25 paise, but no documentary evidence was adduced by the defendants to prove the said defense. By giving cogent reasons, the trial Court rightly came to conclusion that the defendants failed to prove the alleged discharge of amount to the plaintiffs as pleaded by the defendants in the written statement. The alleged discharge of the amount to the plaintiff as pleaded by the defendants is not at all proved by the defendants. On appreciation of the entire evidence on record the trial Court rightly arrived a conclusion that the defendants 1 to 4 are jointly and severally liable to pay the amount in respect of true and correct account. The material on record reveals that the trial Court awarded interest of 18% from 12.07.1990 till the date of realization. Admittedly there is no contract in respect of interest of 24% as claimed by the plaintiff. The material on record reveals that the trial Court awarded interest of 18% from 12.07.1990 till the date of realization. Admittedly there is no contract in respect of interest of 24% as claimed by the plaintiff. The trial Court came to conclusion in its judgment that there is no contract in between the plaintiff and defendants about the payment of interest and the trial Court awarded an interest of 18% p.a. till the date of realization. It is settled law that the use of the word may "in Section 34 of Civil Procedure Code confers a discretion of the Court to award or not to award interest or to award interest at such rate as it deems fit". Admittedly, there is no contract in between the plaintiff and defendants. Therefore, on considering the material available on record, I am of the considered view that the interest of 18% awarded by the learned trial judge is excessive. Therefore, the said interest of 18% p.a. has to be scale down to 12% p.a. For the foregoing reasons the finding arrived at by the trial Court on appreciation of the evidence in this case is, therefore, correct and does not call for interference, except the rate of interest as indicated above. Accordingly the point is answered. 17. In the result, the appeal is allowed in part by modifying the rate of interest from 18% p.a. to 12% p.a. from 12.07.1990 till the date of realization. The rest of the judgment of trial Court holds good. Considering the facts and circumstances of the case, I order that each party do bear their own costs. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.