S.U. Kamdar, J.
1. The present suit is filed by the National Textile Corporation Ltd. in respect of the debt due and payable by the defendants to M/s. Kohinoor Mills for the sum of Rs. 3,18,876/- with further interest @ 21% p.a. on Rs. 2,48,081.31 from the date of the suit till payment and/or realisation.
2. It is the case of the plaintiffs that pursuant to the provisions of the Textile Undertakings (Taking over of Management) Act, 1983 they have taken over the management of Textile Undertakings of M/s. Kohinoor Mills Ltd. and a custodian was appointed under Section 16 of the said Act. The said mill is subsequently nationalised and thus, the plaintiffs have acquired all the assets of the said undertaking known as M/s. Kohinoor Mills Ltd.
3. It is the case of the plaintiffs that prior to taking over of the said mill there were dealings between the said M/s. Kohinoor Mills Ltd. and the defendants and thereunder from time to time, M/s. Kohinoor Mills delivered cloth to the defendants. In respect of the said deliveries, the defendants placed orders and the said M/s. Kohinoor Mills issued invoices and delivery challans alongwith delivery of the said goods. It is the case of the plaintiffs that in respect of the said delivery of the goods, defendants have not made payment and thus, the plaintiffs are entitled to recover the said amount as debt due and payable to M/s. Kohinoor Mills in view of the vesting of the said undertaking with them. It is the case of the plaintiffs that subsequent to verification of the records of the said mill, it was found that the said amount was due and payable by the defendants. By a letter dt.20.12.83 addressed by the Advocates for the plaintiffs to the defendants calling upon them to make payment of aforesaid sum of Rs. 2,48,081.31ps with interest thereon @ 21% per annum from the due date of the said bill till payment and / or realisation. The defendants in their letter dt. 2.2.84 falsely contended that they are not liable to payment of the aforesaid amount to the plaintiffs. However, the plaintiffs by second notice of advocate dt.31.5.84 not only denied the various contentions of the defendants but once again called upon the defendants to make payment of the aforesaid amount. However, the amount was not paid and hence the plaintiffs has filed the suit for the recovery thereof.
4. The defendants have filed the written statement and it is interalia contended that the said amount is not due and payable. It has been contended that there was a firm known as M/s. Randhirsingh and Company who were appointed as agents of M/s. Kohinoor Mills. It has been further contended that one of the partner of M/s. Randhirsingh and Company was also a director of M/s. Kohinoor Mills Ltd., known as Balbirsingh Sukhasingh Sethi and therefore, the present suit is liable to be dismissed. It has been also contended that though the said goods are delivered by the plaintiffs to the defendants, defendants have made payments to M/s. Randhirsingh and Company of sum of Rs. 1,20,000/-towards the purchases made by the defendants from the plaintiffs. The said payment was made to the said firm because they were the agents of the plaintiffs for all practical purposes. It has been further contended that the defendants always had dealings with the said M/s. Randhirsingh and Company and M/s. Randhirsingh and Company was authorised to collect money on behalf of the plaintiffs herein. However, it is admitted in para 7 of the written statement that the said M/s. Randhirsingh and Company were not officially appointed as agents of M/s. Kohinoor Mills but it is the case of the defendants that the Directors orally permitted him to enter into the dealings with the various parties for an on behalf of M/s. Kohinoor Mills Ltd. The defendants have thereafter contended that the defendants were entitled to discount of 2 1/2% in respect of delivery of the said goods and has contended that in respect of the said goods which are covered by 10 bills, defendants have already made various payments and after taking into consideration the discounted amount as well as amount paid to M/s. Randhir Singh and Company nothing is due and payable by the defendants to the plaintiffs herein. In view thereof, the plaintiffs have claimed that the present suit should be dismissed. On the aforesaid pleadings the following issues were framed.
ISSUES
1. Whether the plaintiffs proves that the plaintiffs are entitled to amount of Rs. 2,48,081.31 with interest thereon of Rs. 70,794.69 totalling to Rs. 3,18,876/- towards the goods sold and delivered by M/s. Kohinoor Mills Ltd.
2. Whether the defendants prove that the defendants has paid a sum of Rs. 1,20,000/- to M/s. Kohinoor Mills Ltd. as claimed in paragraph 6 of the written statement.
3. Reliefs, if any.
5. Both the parties have laid oral evidence as well as documentary evidence. The plaintiffs have examined the witness Mr.Ravindra M.Deshmukh who has deposed on the basis of documents on record and he has produced in his evidence the documents in the nature of orders received from the defendant and the 10 bills which are issued by the plaintiffs. He has also produced statement of outstanding dues as well as extract of the Ledger account maintained by the plaintiffs of the defendants in their books of accounts. On the other hand the defendants have produced the said 10 bills which are received by the defendants from the plaintiffs but has also produced various receipts which are Ex.D-1 to D-7 and are stuck on the reverse of the various bills. He has also produced papers and proceedings in respect of suit No. 582 of 1985 filed by the defendants against the said M/s. Randhirsingh and Company and the partners being Randhirsingh Sukhasingh Sethi and Balbirsingh Sukhasingh Sethi. The said suit pertains to recovery of amount of Rs. 1,03,000/- with interest @ 18% per annum which the defendants purported to have been paid to the said firm on behalf of the plaintiffs herein.
6. I have considered the oral evidence of the parties as well as documentary evidence which has been produced before me. In the oral evidence of P.W.No. 1, Mr.Ravindra M. Deshmukh has deposed that he has produced the various bills. He has also pointed out that in so far as accounts are concerned, there is due and payable by the defendants to the plaintiffs the payment of the said 10 bills. The said P.W.No. 1 was thereafter cross-examined by the plaintiffs. In his cross-examination, he has explained that in so far as payments are concerned which are made by the defendants, the said payments are duly accounted for in the Ledger which has been produced as Exh.P-14. It has also been mentioned that these payments which are sought to be relied upon by the defendants are not pertaining to these 10 bills but it pertains to the on account part payment which the plaintiffs had adjusted against their outstanding dues in their books of accounts. He has deposed that in respect of all the payments necessary credit has been given and there is due and payable by the defendants to the plaintiffs as outstanding amount of these 10 bills. He has also accepted that during the period 1982-83 there was a strike in Bombay and the cloth was delivered to the defendants from various other parties on behalf of the plaintiffs and that the plaintiffs has raised the bills in respect thereof.
7. On the other hand, the witness of the defendants Sumatilal Mohanlal Shah has sought to depose that the payments which are made are not in respect of the earlier outstanding dues but are in respect of his suit 10 bills and in respect thereof, the plaintiffs had issued receipts which are found stuck on the reverse of the said bills. On the cross-examination of the said P.W.No. 2, he has admitted that there is nothing to show that the said M/s. Randhirsingh and Company was appointed as agent of the said M/s. Kohinoor Mills. He has also admitted that the name of M/s. Randhirsingh and Company is not shown as broker but the name of some other person namely Rasiklal Premchand is shown as broker in the bills. He has however, sought to explain that there is a market practice to appoint an agent apart from the broker. He has also deposed that he is entitled to discount of 2 1/2 % in respect of polyester cloth and 2% in respect cotton cloth. He has thus, deposed that after taking into consideration the amounts paid and the discount he is entitled to then in that event the amount due and payable was only sum of Rs. 2,271.67 which was also paid by cheque dt.22.12.82 and thus, there is nothing due and payable by the defendants. While computing the aforesaid figure, he has also taken into consideration the amount paid by him to M/s. Randhirsingh and Company supposedly towards the said claim of the 10 bills.
8. The learned counsel for the plaintiffs has contended that from the evidence, it is clear that the defendants are liable for the said claim. Firstly, because the bills are not disputed. Deliveries of the goods is not disputed. The reliance placed on various part payments towards the suit bill is totally erroneous because the said payment was not made with the direction to adjust against a particular claim. He has contended that the suit claim pertains to 10 bills and merely by pasting the receipts on the reverse of the said bills which are separately issued by the plaintiffs at the time of making part payment, it cannot be co-related as the payments towards the said bills. He has further contended that the defendants while tendering the said payments covered by the said 7 receipts has not tendered the same with any direction to adjust the said payment towards any particular claim and thus, the plaintiffs are entitled to adjust the same against earlier outstandings which were due and payable as shown in the Ledger accounts. The learned counsel has contended that in view of the fact that the payments are duly accounted for by the plaintiffs and even thereafter, these 10 bills are still outstanding as due and payable thus, the defendants are liable to make the payments thereof.
9. It has been further contended by the learned counsel for the plaintiffs that the defendants have failed to establish their case. Firstly, of appointment of M/s. Randhirsingh and Company as an agent of the plaintiffs because there is no documentary evidence of any nature whatsoever to show that any such firm was appointed as an agent. Secondly, he has contended that the contention of the defendants that there was a trade discount of 2 1/2% on polyester cloth and 2% on cotton cloth also cannot be accepted because no evidence either documentary or oral has been produced indicating that there was any such agreement of giving a discount. The learned counsel for the defendants have thereafter contended that P.W.No. 1 could not have deposed and was not authorised to depose in the present case as he has not produced any resolution of the plaintiffs authorising him to depose in this case nor any letter of authority has been produced by him. This contention is required to be straightaway rejected. It is because it is well settled that the person who gives evidence as a witness ought to be a person conversant with the facts of the case and he is not required to be authorised by the company or the Board of Directors to give evidence in the case. A person in an employment of the plaintiff if he is conversant with the facts of the case, he is entitled to depose in the case without any express authority in writing either by the Board of Directors or by the Managing Director of the Company. Reliance has been placed by the learned counsel on the provisions of Civil Procedure Code requiring verification of the plaint by the authorised officer of the company. In my opinion, the said provisions do not apply to the case while the person is deposing in evidence because in evidence the only requirement is that the person must be conversant with the facts of the case to come and depose before the court in any case. In view of the aforesaid the submissions made by the learned counsel for the defendants are required to be rejected.
10. Thereafter a contention is raised that this court has no territorial jurisdiction to entertain and try the suit. This issue cannot be considered at all because in the written statement there is no plea raised as to the lack of territorial jurisdiction of this court. There is no issue framed and no evidence is produced on record to ascertain the issue of jurisdiction. In any event, the only ground on which issue of jurisdiction is sought to be raised is that during the relevant period there was a strike in the Kohinoor Mills and therefore, the goods were supplied by third party from outside the state. I do not find any merits in the aforesaid contention. In view of the fact that there are no pleas and no issues, I cannot go into the issue of jurisdiction at all. It is well settled that if a person does not object to the jurisdiction of the court then the court must assume that the party has submitted to the jurisdiction of the court and the court must proceed on that basis. In view thereof, I do not find any merits in the aforesaid contention and I accordingly, reject the same.
11. Now turning to the main contention that M/s. Randhirsingh and Company was appointed as an agent of the plaintiffs. It is very important to note that except the bare words of the defendants himself in his oral evidence, he has failed to produce any documentary evidence or otherwise to establish that the said firm, M/s. Randhirsingh and Company was appointed by the Company as agent to deal with the various parties. He has also failed to indicate any evidence in the course of transactions that M/s. Randhirsingh and Company was at any point of time involved in respect of suit transaction. There is no correspondence. There are no details of any nature whatsoever that how and on what basis M/s. Randhirsingh and Company could be treated as agent of the plaintiffs. It is not possible to accept the contention of the defendants merely on the basis of his oral evidence particularly when bill indicates that somebody else was appointed as broker in respect of suit transaction. The defendants' witness has purported to distinguish between the broker and the agent. I do not find any details or material on record to make any such distinction. He has further deposed that it was customary practice in the cloth market that an agent and broker both should be appointed. Even in respect of such customary trade practice he has not laid any evidence. In absence of total lack of evidence, it is not possible for me to accept the contention that the aforesaid firm M/s. Randhirsingh and company was appointed as agent of the plaintiffs firm. With that view of the matter, the contention of the defendants that the amount of Rs. 1,20,000/- was paid to M/s. Randhirsingh and Company towards the suit bills because he was an agent of the plaintiffs also must be consequently rejected. I therefore, reject the aforesaid contention and hold that the defendants have failed to prove that firm of M/s. Randhir Singh and Company was appointed as agent of the plaintiffs.
12. The next contention advanced is of two discounts; 2 1/2% in respect of polyester cloth and 2% in respect of cotton cloth. The case of the discount is based by the defendants on so called trade discount and trade practice. It is an admitted position that no such discount is given in the bills. It is also an admitted position that at no point of time whatsoever there was any correspondence to show that the party has agreed to any such discount. However, the learned counsel for the defendants have sought to contend that because the amounts which are paid by the defendants if taken into consideration bill-wise on the basis of receipts stuck by him on the reverse of the bill, it would indicate that the plaintiffs are entitled to said discount. It is not possible to infer at the final hearing of suit such trade practice and custom of giving a discount. It is well settled that Customs and Trade Practice must be established by way of evidence. In my opinion, such evidence would be to produce the witness from the market to establish that there is such a practice prevalent in the market of giving a discount and that also of a particular percentage as claimed by the defendants. In absence of any evidence laid by the defendants it is not possible for me to hold that plaintiffs were liable to give discount of 2 1/2% and 2% as claimed by the defendants.
13. This now leads me to the payment which are made by the defendants. It is an admitted position that the payments which are made by the defendants are duly accounted for by the plaintiff in the Ledger produced by the plaintiffs at Ex.P-14. It is not in dispute that all 7 receipts on which reliance has been placed for indicating a discount has been accounted for. It is also not in dispute that the said receipts which are issued by the plaintiffs indicating the receipt of payment does not show that the said receipts are in receipt of the present 10 bills. It is also an admitted position that the receipts are stuck by the plaintiffs on the reverse of the various bills subsequently to the issuance of the bills by the plaintiffs. It is significant to note that the said receipts do not relate to any bill. In fact one of the receipt which has been stuck on one of the bill is dated even prior to the date of the bill. It is surprising that how the receipts for the payment can be issued even before the bill is issued. It is not possible to accept the contention of the defendants that the payments are made even prior to the supply of the goods and prior to the bills being received, the said receipt is also in respect of part payment. Remaining part payments are shown as if made subsequently. In the light of the aforesaid state of the evidence of the receipt produced by the defendants, it is not possible to accept the said receipts as payments towards the said bills. It is also an admitted position that the defendants have failed to produce his books of accounts to show that these payments are made towards this bills. This was the evidence which was in his possession and which could have established his case. However, the learned counsel for the defendants states that the said books of accounts are destroyed. He has however produced the receipt book interalia showing two entries for Rs. 30,000/-and Rs. 90,000/- supposed to have been paid by the plaintiffs to M/s. Randhirsingh and Company. am unable to understand that if the receipt book could be produced then why books of accounts for the relevant period could not have been produced by the defendants. In my opinion, to accept the oral case put forward by the defendants' lawyer that the books of accounts are destroyed and therefore could not be produced cannot be accepted. I am of the opinion, that the said books of accounts have been deliberately kept away by the court and a false contention has been raised that the payments which are covered under 7 receipts are pertaining to the said 10 bills. I am of the further opinion that the defendants have stuck the said receipts on the reverse of the said bills so as to co-relate the said receipts to the said bills though the receipts do not indicate that the same is towards the payment of the said bills.
14. In the aforesaid circumstances, I am of the opinion that I must accept the books of accounts produced by the plaintiffs which are maintained in the normal course of business in which the plaintiffs have given due credit to the on account payment received from the defendants. These books of accounts are produced by the plaintiffs and are almost gone unchallenged. The only query which is sought to be put in cross-examination is pertaining to opening balance in the said Ledger Account which the witness has well explained that it is a carry forward amount due and payable by the defendants to the plaintiffs and the amount has been duly adjusted against the same. However, the learned counsel for the defendants has purportedly contended that the plaintiffs are not entitled to change their case in as much as that the suit is filed on the basis of 10 bills whereas now he is converting the suit on account. I do not find any such change of the case of the plaintiffs. Suit is undoubtedly on 10 bills. It is the defendants who sought to show certain payments and contended that the said payment is towards the said 10 bills and therefore, the plaintiffs are required to produce their books of accounts to indicate that infact the credit is given to the payment. It is not possible to accept the said convention of the defendants that the plaintiffs have changed their case and have converted the suit from 10 outstanding bills to suit on the basis of the foot of account. I do not find any substance in the aforesaid contention. In the light of the evidence produced before me, both documentary evidence as well as oral evidence, I am of the opinion that the defendants are liable to pay to the plaintiffs suit claim. I therefore, pass the following decree:
15. The defendants shall pay to the plaintiffs a sum ofRs.3,18,876.00 and further interest @ 9% p.a. on the principal amount of Rs. 2,48,081.31 from the date of the suit till payment and/or realisation.