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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 2^nd DAY OF DECEMBER, 2021

PRESENT

THE HON9BLE MR. JUSTICE ALOK ARADHE

AND

THE HON9BLE MR. JUSTICE ANANT RAMANATH HEGDE

COMAP. No.19/2019

BETWEEN:

1. SOUTHERN SALES & SERVICES

A PARTNERSHIP FIRM AT NO.7/1,

1^ST FLOOR, K H ROAD,

BENGALURU - 43.

2. SRI SHYAM GOENKA

PARTNER, SOUTHERN SALES &

SERVICES, AT NO.7/1,

1^ST FLOOR, K H ROAD,

BENGALURU - 43.

3. SRI C S KEDIA

PARTNER, SOUTHERN SALES &

SERVICES, AT nO.7/1,

1^ST FLOOR, K H ROAD,

BENGALURU - 43.

.. APPELLANTS

(BY SRI.PRAMOD N KATHAVI, ADV.)

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AND:

SAUERMILCH DESIGN & HANDELS GMBH

A COMPANY INCORPORATED AND

FUNCTIONING UNDER THE LAWS OF

GERMANY HAVING ITS OFFICE AT

KREUZGRUNDWEG 1

36100 PETERSBURG, GERMANY. ... RESPONDENT

(BY SRI.TEJAS, ADV. FOR M/S DUA ASSOCIATES, ADV. )

THIS APPEAL IS FILED UNDER SECTION 13(1-A) OF

THE COMMERCIAL COURTS ACT, 2015 PRAYING TO

SET ASIDE THE JUDGMENT AND DECREE DATED

07.08.2019 PASSED BY THE LXXXII ADDL. CITY CIVIL

AND SESSIONS JUDGE, BENGALURU (CCH 83) IN

COMMERCIAL O.S. No.6700/2003 TO THE EXTENT OF

THE

DECREE

IN

FAVOUR

OF

THE

PLAINTIFF/RESPONDENT ENTITLING THE RESPONDENT

TO RECOVER A SUM OF DM 414,432.80 (EURO

211,896.13)

(Rs.1,08,06,702.63)

TOWARDS

FREIGHT

COST OF RE-EXPORT OF GOODS AND SUM OF DM

213,325.1

(EURO

109,071.38)

(RS.

55,62,640.03)

TOWARDS BALANCE CLAIM AMOUNT OF ADMITTED

SUM OF DM 680,000.00 WITH FUTURE INTEREST AT

8.5% P.A. FROM THE DATE OF SUIT TILL REALISATION

OF AMOUNT FROM THE APPELLANTS HEREIN AND ETC.

THIS APPEAL BEING HEARD AND RESERVED ON

29^TH

NOVEMBER,

2021

AND

COMING

ON

FOR

PRONOUNCEMENT OF JUDGMENT THIS DAY, ANANT

RAMANATH HEGDE J., DELIVERED THE FOLLOWING:

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J U D G M E N T

In this appeal the challenge by the defendants is to

the part of the judgment and decree dated 07.08.2019

passed in Comm.O.S.No.6700/2003 on the file of the

LXXXII Addl. City Civil & Sessions Judge, Bengaluru

holding the defendants jointly and severally liable to pay

a

sum

DM

414,432.80

(EURO

211,896.13)

(Rs.1,08,06,702.63) along with interest @8.5% p.a.

2. The parties to this proceeding are referred to as

per their ranking in the original suit.

3. Facts in brief:

Plaintiff is a Company incorporated in Germany.

The 1^st defendant is a partnership firm registered in India

and the 2^nd and 3^rd defendants are its partners. The

quality and colour of some consignment of home

furnishing products supplied to the plaintiff by the

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defendants, did not conform to the specifications of the

plaintiff. This led to the dispute. After many discussions a

settlement was arrived at wherein the defendants agreed

to offer discount of DM 6,80,000.00 to the plaintiff to

compensate for the defective materials supplied. The

defendants were required to pay the said sum in 5

monthly equal installments commencing from March

2001. In addition to this, the plaintiff further made a claim

that it has supplied some raw materials to the defendants,

to expedite the delivery of products to the plaintiff and

claimed that defendants have not the paid price of said

raw materials. It is the further case of the plaintiff that

defective goods supplied by the defendants were re-

exported to the defendants in September 2001 and the

freight charges are to be borne by the defendants and

defendants failed to repay the said charges.

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4. The demand notice sent by the plaintiff was not

answered by the defendants. The plaintiff sued the

defendants for recovery of Rs.3,86,52,156.42 (Euro

757,885.42) (DM 184,265,169). The suit was registered as

O.S. No.6700/2003 and on establishment of Commercial

Court, same was renumbered as Com.O.S. No.6700/2013.

5. The claim of the plaintiff can be classified under

three different heads:

(a) Towards the cost of re-export of defective goods to the

defendants amounting to Rs.1,08,06,702.63;

(b) Towards balance due in respect of discount agr