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IN THE HIGH COURT OF KARNATAKA BENGALURU
JYOTI MULIMANI, J.
Trident Architectural Aluminium Private Limited & Ors. - Appellants
Versus
Messrs. Jindal Steels & Ors. - Respondents
Regular First Appeal No. 500 of 2017 (MON)
Decided On : 22-10-2021
Indian Partnership Act, 1932 Section 69 - Indian Contract Act, 1872 – Section 63 - Indian Evidence Act, 1872 - Sec.115 - Contract Act, - Section 63 – Civil Procedure Code,1908 - Order 6, Rule 2 – Principle of waiver - Pleading shall mean plaint or written statement - Every suit must include - It is stated that first defendant has got business association with plaintiff partnership firm Steels and as per purchase orders placed by first defendant, plaintiff supplied goods to first defendant - As per terms of agreement, it was mutually agreed that first defendant has to pay invoice amount within thirty days from date of receipt of goods from plaintiff and in failure, first defendant was liable to pay interest at rate of 21% per annum calculated from date of respective materials supplied till date of payment.
Finding of the Court:
Where one party voluntarily accedes to a request by other that he should not insist on precise mode of performance fixed by contract, Court will hold that he has waived his right to insist that contract be performed in respect according to its original tenor.- Genesis of doctrine of waiver is attributable to difficulties which arose out of a strict application of provisions of Statue of Frauds 1677. It has been noticed that any variation of a contract required to be evidenced by writing must itself be in writing. If it is merely oral, it is of no effect - Thus, any oral forbearance or concession made by one party to the other should also strictly be unenforceable. Nevertheless, courts showed themselves reluctant to apply rule in its full severity - Accordingly they established a distinction between a variation (for which writing will be necessary in case of a contract required by Statute to be evidenced by writing) and a waiver (which may be oral in any event) - Court distinction is most difficult to apply in practice, although it has become much less important since almost total repeal of Statute by Law Reform (Enforcement of Contracts) Act 1954 - Court is unable to accept it for simple reason that a waiver may be oral or written or any be inferred from conduct even though provision waived is found in a contract required to be evidenced by writing - Further, law on Court point is well settled by Hon’ble Apex Court in JAGAD BANDHU CHATTERJEE’s case referred to supra that, Under Indian Law neither consideration nor an agreement would be necessary to constitute waiver - Therefore, a written agreement discharging liability is not a mandate of law, hence contention fails - Counsel for appellants and respondent have cited a number of cases, but Court do not think that law is in doubt - Each decision turns on its own facts. - Present case is also tested in light of aforesaid decisions - Court is of view that there is no justification in confirming judgment and decree of Trial Court.
Result: Appeal Allowed
JUDGMENT :
Sri. Sibu Gopinathan learned counsel on behalf of Sri. Balaram M.L. for appellants and Sri. Madhukar Deshpande learned counsel for respondent No.1 have appeared in person.
This is an appeal from the Court of IX Additional City Civil and Sessions Judge, Bangalore.
2. For the sake of convenience, the parties are referred to as per their rankings before the Trial Court.
3. The facts of the case are simply stated as under:-
It is stated that the first defendant has got business association with the plaintiff partnership firm Jindal Steels and as per purchase orders placed by the first defendant, the plaintiff supplied goods to the first defendant. As per the terms of the agreement, it was mutually agreed that the first defendant has to pay the invoice amount within thirty days from the date of receipt of goods from the plaintiff and in failure, the first defendant was liable to pay interest at the rate of 21% per annum calculated from the date of respective materials supplied till the date of payment.
The first defendant maintained a running account with the plaintiff.
The first defendant made a purchase worth Rs.52,50,755/-(Rupees Fifty-Two Lakhs Fifty Thousand Seven Hundred and Fifty-Five only) for the period commencing from August 2011 to February 2013 and defendants have also paid the major portion of outstanding amount to the plaintiff.
It is averred that when the plaintiff instructed that the defendants were liable to pay outstanding amount of Rs.9,13,952/-(Rupees Nine Lakhs Thirteen Thousand Nine Hundred and Fifty-Two only) as on 27.06.2014, the defendants returned long time retained beam-stalk purchased from other suppliers wherein plaintiff helped the defendants in recovery of Rs.7,36,095/-(Rupees Seven Lakhs Thirty-Six Thousand and Ninety-Five only). Accordingly, the defendants issued a cheque in favor of plaintiff for the remaining sum of Rs.1,77,857/-(Rupees One Lakhs Seventy-Seven Thousand Eight Hundred and Fifty-Seven only) on 25.11.2014 drawn on Bank of Baroda. The plaintiff presented the aforesaid cheque with its banker which came to be dishonored for want of sufficient funds in the first defendant’s account.
The fact that the cheque was dishonored, was brought to the notice of defendants over phone and also by way of legal notice. The defendants received the legal notice and they paid only the value of the cheque i.e., Rs.1,77,857/-(Rupees One Lakh Seventy-Seven Thousand Eight Hundred and Fifty-Seven only) but did not pay the entire outstanding amount as aforesaid.
The plaintiff sent legal notice on 07.01.2015 calling upon the defendants to pay the entire outstanding amount. The notice was received by the defendants but they did not pay the said amount. Therefore, plaintiff filed the suit for recovery of money, contending that the cause of action for the suit arose on the date of placing orders by the defendants for supply of goods, on the date of supplies of goods to the defendants, on the date of payments, on the date of issuance of cheque dated 25th November 2014, on the date of dishonor of the cheque, when the defendants have paid the value of cheque, on 7th January 2015 and 9th February 2015, 5th March 2015, 25th March 2015 when the plaintiff has issued legal notices, on the date of receipt of the legal notice, issuance of reply to the legal notice, the rejoinder and also on various dates where the parties are carrying their respective business within the territorial jurisdiction of this Hon’ble Court.
After the issuance of the suit summons, defendants 1 and 2 appeared through their counsel and filed written statement. They denied the plaint averments. They contended that there is no cause of action to file the suit and the suit is barred by time.
It is contended that the first defendant company had made the purchase worth of Rs.52,50,755/-(Rupees Fifty-Two Lakhs Fifty Thousand Seven Hundred and Fifty-Five only) for the period commencing from August 2011 to January 2013 and also paid the major portion of outst
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