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2019 Supreme(Kar) 1425
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. SANDESH, J.
Karnataka State Agro Corn Products Ltd. - Appellant
Versus
M/s Kerala Agro Seeds – Respondent
Regular First Appeal No.554 of 2012(MON)
Decided on : 02-12-2019
Advocate Appeared:
For the Appellant :Sri. Nataraj Baba K, advocate for Sri. Shanmukhappa, advocate
For the Respondent:Sri. K.N. Mahabaleshwara Rao, Advocate
Headnote:
Constitution of India,1950 - Article 227 - Limitation Act - Section 14 - Civil Procedure Code, 1908 - Section 2 - Rule 10 - Order 7 - suit for Recovery of money- Goods supply - Whether plaintiff proves that defendant is due to it in a sum - Whether plaintiff is entitled for interest at 18% per annum on the suit claim - Whether suit claim is barred by time - Whether suit is not maintainable for want of cause of action as alleged by the defendant - Whether defendant proves that plaintiff is liable to pay to it together with interest at 18% per annum from date of amount due - What decree or order– Held, Counsel appearing for appellant defendant also would contend that clear reference was made at first instance with regard to loss suffered by defendant and also tried to convince Court that Kerala Court has no jurisdiction to decide suit - On ground of no territorial jurisdiction suit was transferred to City Civil Court at on account of order passed - It is to be noted that suit was filed in year and defendant for first time made counter claim before City Civil Court - It is also an undisputed fact that transaction was taken place in year plaintiff filed suit in year itself making claim against defendant and composite decree has been passed - It is contention defendant in this appeal that Court below has committed an error in rejecting counter claim on ground that same is time barred - Defendant did not seek counter claim when earlier suit was filed before Kerala Court contending that since issue with regard to jurisdiction was raised he kept quiet - Whether Kerala Court has got jurisdiction or not does not matter to make counter claim - Apart from the merits it is also contention of defendant before Trial Court that substandard materials were supplied by the plaintiff - It is also not in dispute that defendant has made use of the material supplied by plaintiff and did not return the goods alleged to be the substandard materials - When such being the case and also not returned goods of alleged substandard materials defendant is not entitled for the counter claim on merits also - Appeal dismissed
JUDGMENT :
Heard the learned Counsel appearing for the parties.
2. This appeal is filed by the defendant challenging the judgment and decree passed in O.S.No.2959/2005 dated 11.11.2011 by the XL Additional City Civil Judge, Bengaluru City (CCH-41) and to allow the counter claim made by the defendant.
3. The parties are referred to as per their original rankings before the trial Court as plaintiff and defendant in order to avoid confusion and for convenience of the Court.
4. Brief facts of the case are:
The plaintiff has filed the suit for recovery of money. Since there was an agreement between the parties for supply of 500 metric tones of Rice Bran Extraction at Rs.1677/-per metric tonne. The amount has to be paid within 45 days from the date of supply. A sum of Rs.50,000/- was deposited by the plaintiff as security with the defendant. The plaintiff alleged that it has sent six consignments to the defendant. It was further alleged that despite receipt of goods supplied by the plaintiff, the defendant has not paid the amount. Therefore, suit filed for recovery of Rs.1,75,013/- including a sum of Rs.50,000/which was deposited with the appellant.
It is further contended that the plaintiff at the first instance has filed suit in O.S.No.286/2000 before the Additional Sub Judge Court at North Paravur in Kerala State. In the said suit, the defendant appeared and filed written statement contending that there was an agreement for supply of the D.O. Oiled rice bran extract and plaintiff had deposited a sum of Rs.50,000/- with the defendant. The defendant has further contended that the total goods which was agreed to be supplied by the plaintiff was 500 Metric tonnes at Rs.1677/per metric tonne. As per the purchase order, the goods would be supplied within a week from the date of rising of the demand. The plaintiff has delayed in supplying the goods and further the plaintiff has not supplied the rice bran extract according to the quality specified in the purchase order. Since the goods supplied was not according to the standard ordered by the defendant, the defendant had to purchase goods in the open market, from the alternative source. In view of the specific clause in the purchase order that the defendant was made to purchase the goods in the open market, hence, the plaintiff is liable to make good the difference amount. It was further contended by the defendant that the Court at Paravur has no territorial jurisdiction to entertain the suit as there was an agreement between the parties that any dispute arises regarding the transaction between the parties, the same would be subject to the jurisdiction of the City Court at Bengaluru. Therefore, the Sub Judge at North Paravur, Kerala has partly decreed the suit of the plaintiff. Against which, the defendant and the plaintiff herein have filed A.S.No.203/2003 and A.S. 66/2004 before the District Court. The learned District Judge heard the appeal filed by both the [parties and by a common judgment dated 10.12.2004 comes to the conclusion that the suit itself is not maintainable for want of territorial jurisdiction, therefore allowed the appeal filed by the defendant and dismissed the suit filed by the plaintiff and held that the plaint should be returned to plaintiff for presentation before the Court at Bangalore.
It is further contended that the plaintiff herein without following the procedure contemplated under Order 7 Rule 10 of CPC has filed a fresh suit before the City Civil Court at Bengaluru. The defendant appeared through his counsel and filed his written statement reiterating the contentions urged earlier and prayed for dismissal of the suit. It is also contended by the defendant that on 19.4.2006 he had made a counter claim contending that the plaintiff has committed breach of contract entered into between the parties in not supplying the required quantity of goods of the quality ordered by the defendant.
Therefore, the defendant was forced to purchase remaining quantity of goods in the o
