Pan Office Systems Private Limited vs Blow Plast Limited

T.N. Vallinayagam, J.—The Defendant in a suit for recovery of money based on two invoices is questioning the decree passed by the trial Court in favour of the Plaintiff-company. The fact that the supply was made under two invoices by the Plaintiff-company is not in dispute.

On the other hand, in the written statement, the points that are raised are:

(1) The suit is based on account and account copy is not produced;

(2) The fabricated frames were not up to expected standard. The Defendant was prepared to return the copies as sub-standard goods;

(3) The suit was not verified by person authorised in law to verify and sign the pleadings;

(4) The question of payment of interest does not arise, as there is no question of payment of principal dues.

The trial Court considering the evidence adduced by PW-1 and the documents filed by the Plaintiff Exts.P-1 and P-5 and also taking into consideration the evidence of DW-1 with no documents to file as exhibit came to the conclusion that the Plaintiff is entitled to a decree as prayed for and also granted interest at 18% p.a.

Mr. Sampath Kumar, appearing for the Petitioner submitted that the company has not been represented by the rightful person within the meaning of Order 29, Rule 1. According to him, no Director nor any Secretary is assigned to verify the pleadings and even power of attorney produced at Ext. P-1 has been executed subsequent to the filing of the plaint. Therefore, it cannot retrospectively operate. The third contention was that he was a dealer and more or less in the position of an agent and therefore in between principal and agent when the goods were not sold in the market he is entitled to return it back and no liability can be fallen on the Defendant. The final submission was that PW-1 himself admitted that there is no condition for payment of interest, consequently interest is not payable.

On the other hand, the learned Counsel for the Respondent pointed out that Ext.P-1 is dated 30.12.1992 in favour of Mr. K.V. Lakshmanan, the person who has signed and verified the plaint and therefore the contentions contra cannot be entertainable. Heard the respective Counsel.

Before e going into other aspects of the case, I find the evidence of DW-1 in the cross examination break the back of the contentions now raised before me by the learned Counsel for the Petitioner. This is what he says:

It is true that I have received the goods as noted in Exts.P-3 and P-4, the frames manufactured are my property.

In the light of this admission of having received the goods, it is too late for the day, for the Defendant to deny the liability and it is too biggest pill to swallow the contention that he is not liable to pay the price of such goods received by him. Once it is admitted that under Exts.P-3 and P-4 the goods have been received, then it comes a transaction within the meaning of Sale of Goods Act and all the provisions of law will automatically follow. In fact, in Ext.P-3, there is a clear acknowledgement dated 24.7.1991 with the company''s seal on the sale of goods on the invoice. In Ext.P-4 also, on 5.8.1991 the receipt of the goods is acknowledged. I am really surprised if not shocked to know the attitude of the Defendant-company of the total denial of the receipt of goods or about the contention regarding non-payment in the sale. In fact, it is seen under Ext.P-5 a notice was issued by the Plaintiff- company to the Defendant-company calling upon them to pay the amount due. No reply was admittedly marked which should make anybody appreciate the stand now taken by the Defendant. Therefore, there can be no dispute nor any contention that can be entertained as to the liability of the Defendant/Petitioner for payment of the amount due.

Evidently, to avoid such payment, contention in the form of legal technicalities are raised. His contention is under Order 29, Rule 1, which reads as follows:

Subscription and verification of pleading:

In suits by or against a Corporation, any pleading may be signed and verified on behalf of the Corporation by the secretary or by any director or other principal officer of the Corporation who is able to depose to the facts of the case.

But this contention cannot have a stand as I find the plaint is signed by one K.V. Lakshman who has been described as Branch Commercial Officer. The word ''other principal Officer'' occurring in Order 29, Rule 1 shall include such Branch Commercial Officer in the absence of any contention called on. Even otherwise, if according to the Defendant, there has been ratification of the power of attorney of later point of time, the dictum of the Supreme Court in the case of Turner Morrison and Co. Ltd. Vs. Hungerford Investment Trust Ltd., comes to the aid of the Plaintiff. The law laid down is as follows:

Where under the Articles of Association of a Company a suit on behalf of the Company has to be filed with the consent of the directors, a suit filed by the Secretary holding a general power of attorney from the Company would be maintainable even if the action taken by the Secretary is approved by the Directors subsequently.

But on facts, I find as rightly pointed out by the Respondent/Plaintiff that Ext.P-1 is a power of attorney granted in favour of K.V. Lakshman under which he has been empowered to represent the company. This power of attorney was signed on 14.12.1992 and notarised on 13.12.1992. Probably, the Defendant was mistaken of saying the Ext.P-2 which ratified the filing of the suit by Lakshman by resolution on 25.7.1995 which was also followed by another power of attorney notarised on 31.7.1995 and signed on 27.5.1995. This objection of the Defendant also falls to ground. On the question of interest, it is true that PW-1 has stated that according to him, there was no condition for payment of interest. Interest has been claimed under Ext.P-5 at 18% p.a. In the absence of any reply available on record, it has got to be taken that there is a tacit admission on the part of the Defendant to the demand made for payment of interest. Even otherwise, u/s 61(2)(a) of the Sale of Goods Act which reads as follows:

In the absence of a contract to the contrary, the Court may award interest at such rate as it thinks fit on the amount of the price-

a) to the seller in a suit by him for the amount of the price- from the date of the tender of the goods or from the date on which the price was payable.

the Court is entitled to award interest at such rate as it thinks fit on the amount of price. In this suit, the trial Court has granted interest at 18% p.a., which in my opinion, is less than bank commercial rate and is very much fair and reasonable. There is no reason to either deny interest or reduce rate of interest granted by the trial Court. In the light of the admission made by the Defendant, I feel that the defence raised and contention now carried over are cantankerous.

Civil Revision Petition is dismissed with exemplary costs of Rs. 1,000/-. The amount deposited by the Petitioner in the Civil Revision Petition before this Court is directed to be withdrawn by the Respondent/Plaintiff. On an application for payment, office shall issue a cheque in favour of the Plaintiff in the hands of the Counsel without any further reference or notice to anybody.