Ashwin Rajesh and Co. vs Sri Saravana Fabrics

AR. Ramalingam, J.—This appeal has been filed by the defendant against the judgment and decree passed by the Additional Sub Court,

Erode in O.S. No. 256 of 1986 wherein decree has been passed for Rs. 35,745.10. The plaint allegations in brief are as follows:-

The plaintiff viz., Sri Saravana Fabrics by its proprietor Manoharan is doing business in manufacture of textiles at Erode. The defendant viz.,

Ashwin Rajesh and Company by its proprietrix Smt.Radha Vanvaria is also doing business in textiles and exports at Madras. The defendant

placed order with the plaintiff for supply of some specified textile goods on 6.2.1986. The said order was placed and agreed between the parties

at Erode. The goods were agreed to be supplied on or before 19.3.1986. As per the understanding, the plaintiff supplied the goods to the

defendant on various dates. But, the defendant has taken a stand as if the goods were not supplied within the agreed date viz., 9.3.1986, but, in

fact, the agreed date was only 19.3.1986 and the order was also placed and agreed only at Erode. Inspite of demand made orally and through

letters and notice through the counsel, the defendant has sent a reply with false allegations and thereby the defendant is liable to pay the suit

amount. Hence the suit.

Brief allegations in the written statement are as follows:-

It is true that the defendant placed order on 6.2.1986 for supply of textile goods for the purpose of exporting. But, the goods were agreed to be

supplied on or before 9.3.1986 and the time is the essence of the contract. But, the plaintiff did not supply the goods within the agreed date viz.,

9.3.1986. In fact, the plaintiff has altered the said date 9.3.1986 as that of 19.3.1986 for his convenience and advantage. It is only the plaintiff who

failed to perform his part of the agreement as agreed between the parties. Therefore, the defendant is not liable to accept the goods or to pay the

price of the same as demanded by the plaintiff. Of course, the defendant took samples out of the goods sent by the plaintiff with the intention of

selling out the goods to third parties on humanitarian grounds. The defendant was not able to sell the goods to third parties. Consequently, the

defendant sent back all the goods to the plaintiff through M/s.Royal Transport Company on 7.4.1996 and thereby the plaintiff, instead of taking

back from the said lorry transport, has filed the suit against the defendant by claiming the suit amount without any basis. Accordingly, the suit is

liable to be dismissed.

After having considered the pleadings of either side, the Trial Court has framed necessary issues and after appreciating the oral and

documentary evidence on either side, has come to the conclusion that the defendant is liable to pay the suit amount and thereby decreed the suit.

Aggrieved against such judgment and decree, the defendant has preferred this appeal.

Points for consideration are:-

i) Whether the time for delivery of the goods agreed between the parties was till 9.3.1986 or 19.3.1986; and

(ii) whether the judgment and decree passed by the Trial Court viz., the 1 Additional Sub Court is correct and justified.

On the plaintiff''s side, the proprietor of the plaintiff company viz., Manoharan has been examined and two other witnesses have been examined

as P.Ws.2 and 3 apart from marking five documents as Exs.A1 to A5. On the side of the defendant, one Gururajan, an employee of the defendant

company has been examined as DVV1 apart from marking four documents as Exs.B1 to B4.

The specific evidence of the plaintiff as PW1 is to the effect that the order was made and agreed between the parties only at Erode and the

original of the said order has been marked as Ex.Al and the alleged copy of Ex.Al is marked as Ex.B3 on the side of the defendant. On perusal of

Ex.Al, it is clear that the same has been prepared on 6.2.1986 and the ultimate delivery date has been fixed as 19.3.1986 and the plaintiff himself

has put his signature for the plaintiff viz., Sri Saravana Fabrics and one Sheela has put her signature for the defendant company. At the same time,

Ex.Al says 19.3.1986 as the delivery date whereas Ex.B3 says it as 9.3.1986. The discrepancy of the said date is attempted to be explained by

the defendant through DW1 as if the plaintiff has altered ""9"" into ""19"". On the other hand, the explanation of the plaintiff is to the effect that there is

no material alteration; the time agreed was only up to 19.3.1986; the explanation of the defendant is not true and it is only made for the purpose of

defence.

If really, as admitted by both the parties, the agreement was entered into on 6.2.1986 and it was signed by the concerned persons on behalf of

both the parties on one and the same date, there is no chance or possibility for discrepancy on the crucial date as 9.3.1986 or 19.3.1986. Ex.A 1,

infact, has been signed according to the defendant by one Sheela, Typist of the defendant company and the plaintiff himself viz., Manoharan. On

the other hand, Ex.B3 alleged to be the copy of Ex.Al also has been signed by the very same Sheela on behalf of the defendant company, but, it

has not been signed by any person on behalf of the plaintiff company. In such circumstances, we are of the view that Ex.Al, in all probabilities,

should be the original prepared at Erode and signed on behalf of both the companies at Erode at the time of agreement on 6.2.1986 and that at the

same time Ex.B3 as a copy of Ex.A 1 should have been prepared by the defendant signed by the very same Sheela by putting the date as

9.3.1986. Even on keen perusal, we are not able to see any difference or suspicious alteration in the date from ""9"" to ""19"". Further, this aspect is

also strengthened by the fact that the said Sheela who is alleged to have signed on behalf of the defendant company has not been examined as

witness on behalf of the defendant to explain the discrepancy, etc., and there is no acceptable reason for non-examination of the said Sheela on

behalf of the defendant that too when another signatory in Ex.Al viz., the plaintiff Manoharan himself has come to witness box as PW 1.

Another feature pointed out is that the order itself was placed by the defendant only for the purpose of export of the said goods and delivery

was made belatedly beyond 9.3.1986 and the intending purchaser from abroad was not in a position to get the goods from the defendant and

thereby the defendant was not in a position to accept the goods and obtain the price(this aspect is evident from the pleadings in the written

statement). In this context, it is also to be noted that if really the order placed under Ex.Al was for the purpose of export, there is no reason as to

why the defendant is not in a position to produce any documentary proof to show that the said goods were intended to be exported to a particular

person at abroad with very same specification within a particular date. So, the simple version of DW1 as if on account of delayed delivery, their

export itself became impossible and on that account, the defendant cannot accept the goods and pay the price is not acceptable.

Further, it is to be noted that if really time was the essence of the contract and the crucial date was 9.3.1986, there is no reason as to why the

defendant should accept the delayed two or three consignments sent by the plaintiff after the crucial date viz., 9.3.1986 instead of simply rejecting

the delivery immediately by saying that the goods cannot be accepted since it was supplied beyond 9.3.1986. Likewise, there is no reason as to

why the defendant should receive the goods even after 9.3.1986.and keep it for some time and even after taking samples and afterwards return the

goods by saying as if the goods cannot be accepted for the delay in supply. Further, an attempt has been made through DW1 to explain as if the

sample was taken and steps were made to sell the goods to third parties that too after getting instructions and consent from the plaintiff through

telephone. But, such an explanation is not only artificial but also not acceptable. It may be accepted if the defendant has contacted or intimated the

plaintiff through any notice or some written document. So, the contact by telephone is not believable in this case. Moreover, the attempt of the

defendant in having obtained signature of PW2 in Ex.B3 by making some endorsement as if the goods were delivered on 13.3.1986 and

17.3.1986 itself goes to say that there was ulterior motive on the part of the defendant in creating a defence in line with preparation of Ex.B3 with

the particular date as 9.3.1986. The said Sheela has not been examined as a witness and further the proprietrix of the defendant company or her

husband also have not been examined as witness for the defendant, who in turn may be in a position to explain the circumstances under which

Ex.Al and B3 came into existence and so on and there is no acceptable explanation for such non examination.

Of course, now, an attempt is being made by the appellant by filing C.M.P. No. 9027 of 1989 for getting permission of this court to examine

the husband of the proprietrix of the defendant company as additional witness before the Trial Court. Such an attempt cannot be accepted or

permitted at this stage in view of the ruling reported in N. Kamalam (Dead) and Another Vs. Ayyasamy and Another, wherein the Supreme Court

has held that examination of additional witness after ten years of filing of the appeal, even though with regard to an attestor to a Will cannot be

permitted. But, in this case, the witness proposed to be examined by way of additional witness is none other than the husband of the proprietrix of

the defendant company and so, he cannot be permitted to be examined and to fill up the lacunas in the appeal stage.

No doubt, the counsel appearing for the appellant has raised the question of territorial jurisdiction in this appeal by saying as if the contract was

entered into between the parties only at Madras. But, we are not able to accept that ground in view of the fact that there is enough evidence in this

case in support of the plaintiff that the contract was entered into only at Erode and that further the principle laid down in the ruling reported in

Nanak Chand Shadurain Vs. The Tinnelvely-Tuticorin Electric Supply Co. Ltd., Calcutta, to the effect that when once the parties, even after

having raised the plea of jurisdiction, allowed the trial to be completed, it amounts to waiver of such a plea and thereby the question of jurisdiction

cannot be raised at the stage of appeal before this court. Therefore, we hold that the ultimate date of delivery agreed was 19.3.1986 and the

judgment and decree passed by the Trial Court is correct and justified and we do not find acceptable and sufficient grounds in this appeal to

interfere with such judgment and decree and the points are answered accordingly. Consequently, the appeal is dismissed. The judgment and

decree of the Trial Court is confirmed.