The respondent must prove the existence of a special business practice, and mis-description in the plaint does not necessarily result in non-suit.

JUDGMENT

(Prayer: First Appeal filed under Section 96 of Civil Procedure Code, R/w Order 41 Rule 1 of CPC, praying to set aside the judgement and decree dated 06.11.2014 passed in O.S.No.109 of 2011 on the file of the Principal District Court, Namakkal.)

S. Sounthar, J.

1. The unsuccessful defendant in a suit for recovery of money is the appellant.

Plaint Averment:

2. The respondent/plaintiff filed a suit for recovery of Rs.20,14,155/- equivalent to 44,758.70 UD dollars together with interest at the rate of 24% from 28.12.2010 till the date of realisation. According to the respondent/plaintiff, it is engaged in import and export business for more than 15 years at Srilanka and India. The appellant/defendant is doing a rice bran business in India and the appellant/defendant used to purchase rice bran from the respondent/plaintiff for his business transaction. During the course of business transaction in the month of December 2010, the appellant/defendant ordered 208.18 metric tons of rice bran from the respondent/plaintiff at the rate of 215 U.S. Dollars per metric ton. As per the telephonic order, the respondent/plaintiff dispatched 208.18 metric tons of rice bran in 5751 bags from Srilanka to the appellant on 21.12.2010, under Invoice No. PORT/EXP/06/2010-2011. On 28.12.2010, the appellant executed all the customs formalities for taking delivery of the said consignment through his clearing agent G.Sreenivasan. The said consignment was taken delivery by the appellant at Thoothukudi Port. The respondent/plaintiff specifically pleaded that at the time of placing order, the appellant/defendant promised to pay the cost of the consignment at the time of taking delivery of the goods. Believing the words of the appellant/defendant, the respondent/plaintiff had dispatched all the original invoices and other shipment related documents directly to the appellant/defendant to enable him to take delivery of the goods from Thoothukudi Port. According to the respondent/plaintiff, by using the above documents the appellant/defendant had taken delivery of the consignment. But he failed to pay the invoice amount of Rs.44,758.70 US dollars. It was further averred in the plaint that the inspite of several demands, the appellant/defendant failed to pay the price of consignment and hence, a complaint was made to the High Commissioner of India at Colombo and he also sent a letter dated 09.02.2011 requesting appellant to make payment without any delay. Thereafter, the respondent/plaintiff sent a legal notice to the appellant/defendant on 27.01.2011 and inspite of the same, the appellant/defendant failed to make any payment and hence, the respondent/plaintiff was constrained to file the above suit for recovery of money.

Averment found in the written statement:

3. The appellant/defendant in his written statement mainly contended that the respondent/plaintiff dispatched the consignment only after receiving the cost of the consignment and hence, in the invoice dated 21.12.2010 in the delivery and payment column, it was clearly mentioned as “Advance Payments”. Therefore, the respondent/plaintiff is estopped from claiming that the appellant/defendant failed to pay the cost of the consignment. It was further averred by the appellant/defendant in his written statement that when the plaintiff came down to India earlier on 21.04.2010 a sum of Rs.21,00,000/- was paid to him at his request as the appellant/defendant enjoy a close business relationship with the respondent/plaintiff. The said payment was made to the respondent/plaintiff in the presence of Chellaiah Balakrishnan and Hariharan and only due to receipt of the said amount by the respondent/plaintiff, he prepared invoice stating that “Advance Payments” in the delivery and payment column of invoice. The appellant/defendant also raised a plea that framing of the suit was bad because the capacity of the respondent/plaintiff was not clearly mentioned whether it is a proprietary concern or firm or co