The defendant in O.S.No.111/2010 is before this

Court aggrieved by the judgment dated 23.06.2016

passed by the Principal Senior Civil Judge and CJM.,

Gadag.

In the said matter, by way of aforesaid judgment the

said Court had partly decreed the suit with costs

holding that plaintiff is entitled for the recovery of a

sum of Rs.13,39,720/- from the defendants along

with future interest at the rate of 12% p.a., from the

date of instituting the suit till the realisation of the

entire decretal amount. The Trial Court by the said

judgment also dismissed the counterclaim which had

been filed by the defendants for a sum of

Rs.9,03,197/-.

3.

Sri Jagadish Patil, learned counsel appearing for the

appellant would submit that

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3.1. The judgment passed by the Trial Court is not

proper. The Trial Court has misapplied itself and

has purely gone on legal notice which has been

issued without adverting to the documents in

relation thereto inasmuch as it is on the basis

of the legal notice that the Trial Court has come

to a conclusion that there is an admission on

the part of the defendants in relation to

amounts due.

3.2. The

Trial

Court

has

not

considered

the

documents that have been produced by the

defendants

more

particularly,

the

account

statement which disclose that there are no

amounts which are due from the defendants

but there are amounts which are due from the

plaintiff to the defendants.

3.3. In a suit for recovery of money, it is for the

plaintiff to categorically establish by cogent

evidence, the amounts due, supported by

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documentary evidence produced in said suit.

Without necessary documents being placed on

record, no claim for any amounts could be

made by the plaintiff.

3.4. The Trial Court has erred by considering the

contents of the legal notice in conjunction with

the invoices and has come to a conclusion that

the defendant had admitted the due amounts

when in fact no such admission has been made.

3.5. The transaction between the plaintiff and the

defendants has been going on from the year

2007. A consolidated statement of accounts

having been produced by the defendants, which

disclose both the credit and debit in terms of

the iron ore supplied and the amounts paid, by

virtue of which the total supply of iron ore

made by the plaintiff was for a sum of

Rs.1,38,63,016.60/- as regards which payment

of a sum of Rs.1,47,66,240/- has been made.

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Thus, there is an excess payment made of

Rs.9,03,197.40/-, that was claimed in the

counter claim.

3.6. These facts not having been taken into account

by the Trial Court, an error has been committed

by the Trial Court in partly decreeing the suit

and rejecting the counter claim.

4.

Per contra, Sri C. N. Harlapur, learned counsel

appearing for the respondent would support the

judgment passed by the Trial Court by contending

that

4.1. The due amount which has been claimed by the

plaintiff

is

for

supply

of

iron

ore

from

24.02.2008 to 26.09.2008 and as such the

reference

being

made

to

the

accounts

statement from the year 2007 to 2009 is

misplaced.

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4.2. The details of the supply made and amounts

received have been furnished in para 5 of the

plaint.

The

supply

is

to

the

tune

of

Rs.71,85,960/-

as

regards

which

the

defendants have paid Rs.58,47,748/- leaving a

balance of Rs.13,38,220/-, that amount was

claimed by the plaintiff in the suit.

4.3. The conduct on part of the defendants company

who claims to be an ISO certified company is

completely unconscionable and unfair inasmuch

as the defendants in its written statement has

denied the transaction itself but had laid a

counterclaim.

4.4. The defendants have completely denied the

supply and the transaction, which is contrary to

the documents produced in evidence, as also

the admission made by the witnesses of the

defendants and as such on that basis an

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inference has to be drawn that the amount

claimed by the plaintiff is in fact due.

4.5. By referring to the cross examination of DW1,

who is the Legal Manager