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High Court of Judicature at Madras
R. MAHADEVAN, J.
Madras Cements Limited represented by its Assistant Manager
Versus
T.M.T. Kannammal Educational Trust, represented by its Chairman, T. Nagar & Another
S.A. No. 163 of 2008
Decided on: 27-11-2014
Arbitration Act - Section 8 - Indian Evidence Act - Section 34 - Civil Procedure Code, 1908 - Order 8 - Transfer of Property Act, 1882 – Section 7 and 8 – Jurisdiction - Whether plaintiff is entitled to receive outstanding dues from defendants for supply of cements - Supply of cements and acknowledged their liability - Case of plaintiff before Trial Court was that plaintiff is carrying on business of Manufacture and distribution of cement and its allied products and is in business for several decades in brand name of Cement - First defendant is Trust running various institutions and is having running account with plaintiff in respect of supply of cement - Plaintiff supplied cement on credit basis to second defendant college which is run by first defendant Trust and there is outstanding dues on running account as on April payable by defendants to plaintiff as per statement of accounts - Defendants never disputed supply of cements and acknowledged their liability - Plaintiff supplied goods for construction at second defendant college only upon assurance given by first defendant to clear dues - Defendants continuously defaulted in payment of outstanding dues – Hence notices were sent to first defendant and same were received by defendants respectively - After receipt of notices defendants paid a sum of which were adjusted towards interest - They failed and neglected to clear outstanding dues - Present suit had been filed - Since transaction between plaintiff and defendants is a commercial transaction plaintiff is entitled to interest – Held, In case on hand one has been examined as P.W.1 who has nothing to do with accounts and payments received and there is also no explanation for not examining person who wrote accounts and received payments and therefore it could not be held that requirements of Section 34 of Evidence Act have been satisfied - At this juncture it is pertinent to note here that Section 101 of Evidence Act, 1872 defines burden of proof which clearly lays down that - Burden of Proof Whoever desires any court to give judgment as to any legal right or liability dependent on existence of facts which he asserts must prove that those facts exist - When a person is bound to prove existence of any fact it is said that burden of proof lies on that person - Evidence Act has clearly laid down that burden of proving a fact always lies upon person who asserts it - Until such burden is discharged other party is not required to be called upon to prove his case - As discussed above in light of decisions cited which are relied upon by defendants when plaintiff themselves have miserably failed to prove their case by examining person who wrote accounts and received payments in support of their statement of accounts and unless such burden is discharged on their part defendants cannot be expected to prove case of plaintiff which is settled position of law and therefore inevitable answer to substantial questions of law is to be in favor of respondents/defendants – Further in second appeal normally as against concurrent findings of courts below this Court would not interfere under Section 100 of Civil Procedure Code unless findings of courts below are perverse and any failure to consider evidences both oral and documentary which will pave way for miscarriage of justice - For foregoing reasons this Court does not find any reasons to interfere with concurrent findings of Courts below - Appeal is dismissed
1. This second appeal is directed against the judgment and decree dated 27.07.2007 and made in A.S.No.248 of 2006 on the file of the III Additional Judge, City Civil Court, Chennai, confirming the judgment and decree dated 07.07.2005 and made in O.S.No.3105 of 2002 on the file of the VII Assistant City Civil Court, Chennai.
2. Plaintiff, who lost its case before both the courts below is the appellant in the second appeal.
3. The case of the plaintiff before the Trial Court was that the plaintiff is carrying on the business of Manufacture and distribution of cement and its allied products and is in the business for several decades in the brand name of ''Ramco Cement''. The first defendant is the Trust running various institutions and is having running account with the plaintiff in respect of the supply of cement from the year 1997. The plaintiff suplied cement on credit basis to the second defendant college, which is run by the first defendant Trust, and there is outstanding dues of Rs.1,76,640/-on the running account as on April 1999, payable by the defendants to the plaintiff, as per the statement of accounts. The defendants never disputed the supply of cements and acknowledged their liability. The plaintiff suplied the goods for construction at the second defendant college only upon the assurance given by the first defendant to clear the dues. The defendants continuously defaulted in payment of the outstanding dues. Hence, notices dated 08.06.2001 and 11.12.2001 were sent to the first defendant and the same were received by the defendants on 11.06.2001 and 14.12.2001 respectively. After the receipt of notices, the defendants paid a sum of Rs.4,000/- (Rs.2,000/- each on two occasions), which were adjusted towards interest. Thereafter, they failed and neglected to clear the outstanding dues. Hence, the present suit had been filed. Since the transaction between the plaintiff and the defendants is a commercial transaction, the plaintiff is entitled to interest at the rate of 24% per annum.
4. The suit was resisted by the defendants denying the running account from the year 1997 for the purchase of cements from the plaintiff and contended that the defendants have made payments to the plaintiff as and when they received the materials from them. The defendants verified their accounts and found that there was no balance outstanding towards the plaintiff's account and they did not owe any money to the plaintiff, that too with 24% usurious interest and therefore, the suit is not maintainable, since it is barred by limitation. At no point of time, the defendants have acknowledged any alleged liability with the plaintiff. Hence, they prayed for dismissal of the suit with costs.
5. The Trial Judge framed the following issues:-
i) Whether the plaintiff is entitled to receive the outstanding dues from the defendants for the supply of cements?
ii) Whether the suit is barred by limitation?
iii) To what relief, the plaintiff is entitled?
6. Before the Trial Court, Mr. T. Mathivanan, Assistant Manager (Legal) of the plaintiff company examined himself as PW1 and marked nine documents as Exs.A1 to A9. No oral and documentary evidence was adduced on the side of the defendants. The Trial Court, on analysis of oral and documentary evidence on the side of the plaintiff, dismissed the suit with costs. On appeal, the appellate court, confirmed the finding of the Trial Court and dismissed the appeal. Aggrieved against the concurrent judgment and decree of both the courts below, the present second appeal has been filed.
7. The second appeal has been admitted identifying the following questions to be the substantial questions of law involved in the second appeal:
i) When the defendant admitted that he had received the materials from the plaintiff, is not the onus on the defendant to prove that he had not received the materials as per the invoice filed by the plaintiff?
ii) When the defendant had stated that he has made the payment to the plaintiff in respec
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