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Madras High CourtCS/76/2012decreed

D.Mahendra Kumar Jain v. R.Damodaran

2020-01-22Honourable Mr Justice M. Sundar16 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 22.01.2020

CORAM

THE HON'BLE MR.JUSTICE M.SUNDAR D.Mahendra Kumar Jain .. Plaintiff Vs.

1. R.Damodaran

2. G.Sethu Madhavan Asst. Vice President, JLL, P&D.S Level - 8, Tower II, TVH Belisca Tower, Block No.94, MRC Nagar, Chennai - 600 028.

3. The Official Assignee, Office of the Official Assignee, City Civil Court Buildings, Chennai - 600 104.

.. Defendants (The 3rd defendant impleaded as per order dated 25.01.2019 in A.No.15/2019 and time extended as per order dated 11.12.2019) This Civil Suit is preferred, under Order VII Rule 1 CPC read with Order IV Rule 1 O.S. Rules to a) pass a judgment and decree directing the 1st defendant to pay the plaintiff a sum of Rs.1,09,95,994/- and further interest from the date of filing this suit @12% p.a. until realization; and b) pass such further or other orders as may be deem fit and proper. 1/16

For Plaintiff : Mr.E.Senthil Kumar For Defendants : Set ex-parte (D1 & D2) No appearance (D3)

JUDGMENT

In instant suit, contesting defendants 1 and 2 remained ex-parte. The Hon'ble Predecessor Judge had set defendants ex-parte and sent the matter to learned Additional Master - III for recording ex-parte evidence. To be noted, the Official Assignee attached to this Court has been added as third defendant vide order in A.No.15 of 2019. There is no prayer against the third defendant. The third defendant has been so added solely owing to the reason that first respondent was adjudicated as an insolvent in I.P. No.12 of 2018 owing to not satisfying an interim decree dated 20.07.2015 made by this Court in this suit vide A.No.2533 of 2012.

2. Before learned Additional Master - III, plaintiff Mr. D. Mahendra Kumar Jain was deposed as PW1 and 97 exhibits i.e., Exs.P1 to P97 had been marked.

3. When the suit was listed before this Court, learned counsel for plaintiff made a request to mark two more documents, namely,certified copies of interim decree dated 20.07.2015 and the order dated 23.07.2018 in I.P. 2/16

No.12 of 2018 adjudicating the first defendant as insolvent.

4. Exercising inherent powers of this Court, request was acceded to and plaintiff was permitted to mark the aforesaid two documents as exhibits. To be noted, both documents sought to be marked are certified copies which in any case form part of the case file and therefore, this course was adopted by this Court.

5. Plaintiff Mr. D.Mahendra Kumar Jain who deposed as PW1 before learned Additional Master-III deposed before this Court and aforesaid two certified copies were marked as Exs.P98 and P99 respectively.

6. This Court now proceeds to examine the suit claim.

7. The burden of song qua plaintiff is that the second defendant introduced first defendant to plaintiff and thereafter, the plaintiff made certain supplies to first defendant. Payments for such goods sold and supplied were not forthcoming resulting in exchange of communications and suit notice.

8. To be noted, it is the case of plaintiff that he is carrying on business 3/16

in the name and style of Sri Venkateshwara Enterprises as a proprietor in Electrical Wires and other accessories at No.56, Strotten Muthia Mudali Street, Sowcarpet, Chennai - 600 079.

9. It is also the case of the plaintiff that with regard to goods sold and supplied over a period of time, several invoices were raised and the invoices were not honoured by the first defendant.

10. Plaintiff also proceeds to say that the plaintiff enquired with second defendant and realised that second defendant has actually colluded with first defendant. It is also the further burden of song that the materials procured by first defendant from plaintiff were by stating that first defendant has got a contract from Bank of America i.e. B.A. Continum Private Limited for electrical work to be executed in 7th Floor, Acendas I.T. Park, Phase III, Taramani Road, Taramani.

11. In the course of hearing of the suit, plaintiff took out an application inter alia under Order XII Rule 6 of 'The Code of Civil Procedure, 1908', (hereinafter 'CPC' for the sake of brevity) with a prayer for interim decree inter alia on the ground that first defendant has admitted its liability in reply 4/16

notice. Accepting the case of plaintiff, this Court passed an interim decree on 20.07.2015 in A.No.2533 of 2012 which has been alluded to supra and marked today as Ex.P98. This interim decree is for a sum of Rs.70,77,066/-(Rupees Seventy Lakhs Seventy Seven Thousand and Sixty Six only).

12. It is submitted that the aforesaid interim decree has attained finality. In other words, aforesaid interim decree has been given legal quietus and has not been carried on by way of appeal by any one. Based on the aforesaid interim decree, plaintiff filed an insolvency petition under Presidency Towns Insolvency Act against first defendant inter alia stating that first defendant is a debtor and has committed the act of insolvency. This plea was made on the basis of aforesaid interim decree (Ex.P98) that was not satisfied. Accepting the case of plaintiff, insolvency petition was allowed vide order dated 23.07.2018 which has been marked as Ex.P99 today. This Court is informed that Ex.P99 has also attained finality and has been given legal quietus.

13. It is in the aforesaid backdrop that the instant suit is being heard out qua decree.

5/16

14. A perusal of the prayer paragraph reveals that the suit has been laid claiming Rs.1,09,95,994/- (Rupees One Crore Nine Lakhs Ninety Five Thousand Nine Hundred and Ninety Four only) with future interest at the rate of 12% per annum. Learned counsel for plaintiff, Mr.E.Senthil Kumar, points out that in the light of interim decree Ex.P98, now a decree has to be passed for the remaining suit claim which is Rs.39,18,928/-(Rupees Thirty Nine Lakhs Eighteen Thousand Nine Hundred and Twenty Eight only).

15. A perusal of the evidence of plaintiff, deposed as PW1, reveals that the evidence is cogent. To be noted, the evidence i.e., examination in chief is by way of a proof affidavit dated 17.07.2018. The deposition obviously remains uncontroverted.

16. As already alluded to supra, before learned Additional Master - III, Exs.P1 to P97 were marked.

17. Ex.P1 to P85 are various invoices. Ex.P87 is a deed of partnership qua a firm in the name of M/s. Lakshmi Electricals wherein first defendant is one of the partners. However, first defendant has been arrayed in his individual capacity and shown as proprietor of M/s.Lakshmi Electricals in the 6/16

suit. Therefore, this is only a buttressing document. Ex.P88 series are various correspondences exchanged between parties with regard to suit claim. Ex.P95 is suit notice dated 31.01.2012, which did not evoke any reply or response. Exs.P96 and 97 are also part of the correspondences between the parties.

18. As alluded to supra, Ex.P98 is the certified copy of interim decree and Ex.P99 is the certified copy of the order made by this Court in Insolvency Petition. For the sake of convenience, list of exhibits are set out and the same are as follows:

S.No. Date Description of Document Nature of Documents Exhibit Nos.

18/08/2011 Invoice No.A216 delivered to Assendas, Taramani Road, Chennai for Rs.99996.60 Original 19/08/2011 Invoice No.A221 delivered to Assendas Phase -3, 7th Floor, Taramani Road, Chennai for Rs.1094621.00 Original 20/08/2011 Invoice No.A226 delivered to Taramani for Rs.121890.00 Original 20/08/2011 Invoice No.A227 delivered to for Rs.64197.00 Original 20/08/2011 Invoice No.A234 delivered to Taramani Road for Rs.6615.00 Original 25/08/2011 Invoice No.A266 for Rs.8955.00 Original 26/08/2011 Invoice No.A271 delivered to Assendas Phase -III, 7th Floor, Original 7/16

S.No. Date Description of Document Nature of Documents Exhibit Nos.

Taramani Road, Chennai for Rs.87373.00 29/08/2011 Invoice No.A285 for Rs.60843.00 Original 31/08/2011 Invoice No.A.296 delivered to Tambaram for Rs.115078.00 Original 02/09/2011 Invoice No.A.299 delivered to Chengalpet for Rs.82504.00 Original 02/09/2011 Invoice No.A.300 delivered to Taramani for Rs.292875.00 Original 02/09/2011 Invoice No.A301 delivered to Nandanam for Rs.5689.00 Original 03/09/2011 Invoice No.A302 delivered to Tambaram for Rs.131951.00 Original 03/09/2011 Invoice No.A303 delivered to Tambaram for Rs.1081.00 Original 05/09/2011 Invoice No.A309 delivered to Taramani for Rs.47958.00 Original 07/09/2011 Invoice No.A321 delivered to Nandanam for Rs.2382.00 Original 07/09/2011 Invoice No.A322 delivered to Taramani for Rs.599930.00 Original 08/09/2011 Invoice No.A327 delivered to Taramani for Rs.101480.

00 Original 12/09/2011 Invoice No.A341 delivered to Taramani for Rs.159628.00 Original 12/09/2011 Invoice No.A342 delivered to Chengalpet for Rs.76131.00 Original 13/09/2011 Invoice No.A347 delivered to Asendas IT Park Taramani for Rs.151700.00 Original 13/09/2011 Invoice No.

S.No. Date Description of Document Nature of Documents Exhibit Nos.

Asendas IT Park Taramani for Rs.994160.00 14/09/2011 Invoice No.A349 delivered to Asendas IT Park Taramani for Rs.97975.00 Original 16/09/2011 Invoice No.A358 delivered to Asendas IT Park Taramani for Rs.13235.00 Original 17/09/2011 Invoice No.A360 delivered to Taramani for Rs.232033.00 Original 17/09/2011 Invoice No.A361 delivered to Tambaram for Rs.88044.00 Original 17/09/2011 Invoice No.A363 delivered to Taramani for Rs.277095.00 Original 19/09/2011 Invoice No.A364 delivered to Taramani for Rs.1213.00 Original 21/09/2011 Invoice No.A375 delivered to Taramani for Rs.65069.00 Original 22/09/2011 Invoice No.A377 delivered to Taramani for Rs.16492.00 Original 22/09/2011 Invoice No.A380 delivered to Taramani for Rs.96381.00 Original 22/09/2011 Invoice No.A381 delivered to Sharada Motor Mahindra City Chengalpet for Rs.164264.00 Original 24/09/2011 Invoice No.A382 delivered to Mount Road for Rs.80558.00 Original 24/09/2011 Invoice No.A393 delivered to C.I.T. Nagar for Rs.3989.00 Original 27/09/2011 Invoice No.A397 delivered toTaramani for Rs.14774.00 Original 9/16

S.No. Date Description of Document Nature of Documents Exhibit Nos.

27/09/2011 Invoice No.A398 delivered to Sharada Motors Maraimalai Nagar for Rs.42986.00 Original 27/09/2011 Invoice No.A401 delivered to Taramani for Rs.292060.00 Original 29/09/2011 Invoice No.A406 delivered to Taramani for Rs.125099.00 Original 30/09/2011 Invoice No.A413 delivered to Taramani for Rs.206937.00 Original 30/09/2011 Invoice No.A414 delivered to Taramani for Rs.347500.00 Original 30/09/2011 Invoice No.A415 delivered to Taramani for Rs.379816.00 Original 01/10/2011 Invoice No.A418 delivered to Maraimalai Nagar for Rs.44745.00 Original 01/10/2011 Invoice No.A420 delivered to Maraimalai Nagar for Rs.28838.00 Original 04/10/2011 Invoice No.A422 delivered to Taramani for Rs.275877.00 Original 04/10/2011 Invoice No.A426 delivered to Taramani for Rs.71295.00 Original 04/10/2011 Invoice No.A427 delivered to Taramani for Rs.166069.

00 Original 05/10/2011 Invoice No.A430 delivered to Taramani for Rs.150216.00 Original 07/10/2011 Invoice No.A438 delivered to Taramani for Rs.25724.00 Original 12/10/2011 Invoice No.A446 delivered to Taramani for Rs.304247.00 Original 12/10/2011 Invoice No.A447 delivered to Taramani for Rs.90250.

S.No. Date Description of Document Nature of Documents Exhibit Nos.

12/10/2011 Invoice No.A450 delivered to Taramani for Rs.271745.00 Original 12/10/2011 Invoice No.A454 delivered to Nandanam for Rs.2197.00 Original 12/10/2011 Invoice No.A458 delivered to Taramani for Rs.923008.00 Original 14/10/2011 Invoice No.A467 delivered to Taramani for Rs.389188.00 Original 15/10/2011 Invoice No.A471 delivered to Taramani for Rs.136640.00 Original 17/10/2011 Invoice No.A478 delivered to Taramani for Rs.97769.00 Original 19/10/2011 Invoice No.A482 delivered to Taramani for Rs.59463.00 Original 19/10/2011 Invoice No.A487 delivered to Maraimalai Nagar for Rs.143651.00 Original 19/10/2011 Invoice No.A488 delivered to Maraimalai Nagar for Rs.3383.00 Original 20/10/2011 Invoice No.A497 delivered to Taramani for Rs.100430.00 Original 21/10/2011 Invoice No.A503 delivered to Taramani for Rs.319840.

00 Original 21/10/2011 Invoice No.A504 delivered to Maraimalar Nagar for Rs.3921.00 Original 21/10/2011 Invoice No.A506 for Rs.5670.00 Original 21/10/2011 Invoice No.A507 delivered to Taramani for Rs.44192.00 Original 22/10/2011 Invoice No.A518 delivered to Taramani for Rs.93157.00 Original 25/10/2011 Invoice No.A523 delivered to Taramani for Rs.23612.

S.No. Date Description of Document Nature of Documents Exhibit Nos.

28/10/2011 Invoice No.A529 delivered to Taramani for Rs.110451.00 Original 29/10/2011 Invoice No. A535 delivered to Taramani for Rs.176000.00 Original 02/11/2011 Invoice No.A553 delivered to Taramani for Rs.38623.00 Original 03/11/2011 Invoice No.A560 delivered to Taramani for Rs.181504.00 Original 03/11/2011 Invoice No.A561 delivered to Taramani for Rs.159183.00 Original 04/11/2011 Invoice No.A565 delivered to Taramani for Rs.40874.00 Original 05/11/2011 Invoice No.A566 delivered to Taramani for Rs.94155.00 Original 10/11/2011 Invoice No.A589 delivered to Taramani for Rs.31935.00 Original 10/11/2011 Invoice No.A593 delivered to Taramani for Rs.83604.00 Original 10/11/2011 Invoice No.A594 delivered to Taramani for Rs.29369.00 Original 14/11/2011 Invoice No.A602 delivered to Taramani for Rs.81018.00 Original 18/11/2011 Invoice No.

A623 delivered to Taramani for Rs.11065.00 Original 19/11/2011 Invoice No.A626 delivered to Taramani for Rs.4850.00 Original 25/11/2011 Invoice No.A642 delivered to Taramani for Rs.9211.00 Original 25/11/2011 Invoice No.A645 delivered to Taramani for Rs.21630.

S.No. Date Description of Document Nature of Documents Exhibit Nos.

30/11/2011 Invoice No.A653 delivered to Ascendas IT Park Taramani for Rs.437765.00 Original 30/11/2011 Invoice No.A654 delivered to Ascendas IT Park Taramani for Rs.14679.00 Original 03/12/2011 Invoice No.A659 delivered to Taramani for Rs.199237.00 Original 10/12/2011 Invoice No.A679 delivered to Ascendas IT Park Taramani for Rs.462895.00 Original The compilation of various purchase orders in various Invoice Nos. delivered by the plaintiff from 18.08.2011 to 10.12.2011 Xerox 01.04.2009 Deed of Partnership executed between the 1st defendant and other two partners.

Xerox 11.01.2012 E-mail issued by plaintiff to the 2nd defendant and the Officer of Garnishee bank attaching the letter dated 11.01.2012 to the 1st defendant requesting to ensure payment due to the plaintiff.

Xerox 11.01.2012 Letter issued by plaintiff to the 1st Xerox defendant demanding the outstanding sum of Rs.1,08,15,732/- within 7 days.

Proof of acknowledgment towards service of the letter dated 11.01.2012 issued to the 1st Xerox defendant Proof of acknowledgment towards Xerox 13/16

S.No. Date Description of Document Nature of Documents Exhibit Nos.

service of the letter dated 11.01.2012 issued to the 2nd defendant Proof of acknowledgment towards service of the letter dt.11.01.2012, issued to one Mr.Rajah-Vice President of BACPL.

Xerox 19.01.2012 E-mail issued by plaintiff to 2nd Xerox defendant and the Officer of Garnishee Bank to pay atleast 75% of the materials supplied by the plaintiff.

28.01.2012 Letter issued by the 1st defendant to the Garnishee requesting to forward all payments due and payable to the plaintiff.

Xerox 31.01.2012 Legal Notice sent by the counsel for plaintiff to the defendant Xerox Extract of SMS sent by Sethumadhanvan Ph.9884011669 to Plaintiff Ph.9444100305 Xerox 19.12.2011 Statement of accounts relating to the outstanding due to the plaintiff as against the 1st Xerox defendant which is admitted by the 1st defendant.

20.07.2015 Certified copy of the interim decree in C.S.No.76 of 2012 and A.No.2533 of 2012 Certified copy 23.07.2018 Certified copy of the order passed in I.P. No.12 of 2018 Certified copy

19. A careful perusal of deposition of PW1, plaint averments and 99 exhibits reveal that the evidence of plaintiff is cogent. The suit claim is well 14/16

corroborated by the exhibits and the cogent evidence remains unrebutted. In other words, the suit claim has been proved. As already alluded to supra, suit claim is for a future interest at the rate of 12% per annum. Therefore, this Court has no difficulty in acceding to the request.

20. In the result, suit is decreed for a balance sum of Rs.Rs.39,18,928/- (Rupees Thirty Nine Lakhs Eighteen Thousand Nine Hundred and Twenty Eight only) with future interest at the rate of 12% per annum from the date of filing of the suit in addition to Rs.70,77,066/-(Rupees Seventy Lakhs Seventy Seven Thousand and Sixty Six only) with future interest at the rate of 12% per annum vide Ex.P98 being an interim decree made by this Court dated 20.07.2015 in A.No.2533 of 2012.

21. The suit is decreed. There shall be no order as to costs. 22.01.2020 Speaking/Non-Speaking order Index : Yes/No Internet : Yes/No sli 15/16

M.SUNDAR, J.

sli 22.01.2020 16/16