KOTHARI ENTERPRISES Vs. BANK OF INDIA

JUDGEMENT

(1.) -DEFENDANT is the appellant.

(2.) THE case of the plaintiff is as follows :-The plaintiff Bank granted to one M/s. Kay Gee Textiles carrying on business at Bombay the Bills Purchase facility to the extent of Rs. 1. 50 lakhs. Pursuant to the Bills Purchase facility, three bills of exchange were drawn for Rs. 11,482. 91, Rs. 7,821. 85 and Rs. 6,238. 69 respectively by kay Gee Textiles on the defendant drawer M/s. Kothari Enterprises at coimbatore payable within sixty days after sight, interest being 18% per annum from the date of maturity till date of payment. Those bills were drawn in connection with the sale of 644 printed art silk fabrics covered by invoice Nos. 93/80, 94/80 and 95/80 respectively. The bills were drawn upon the defendant firm aggregating to a sum of Rs. 25,543. 45 and the bills were purchased by the plaintiff Bank on 11. 3. 1980 and duly presented for acceptance of the said bills which were due for payment on 4. 5. 1980. the bills were duly accepted by the defendant on 25. 4. 1980 an the bills had to be paid oh presentment on the due date being 4. 5. 1980. When the bills were presented for payment, the defendant had defaulted in payment of the said bills on the due dates and the bills remain unpaid inspite of repeated demands made by the plaintiff dealing upon the defendant to effect payment. The plaintiff through the Manager of the bank of India, Coimbatore Branch caused the bills to be presented to the defendant by a Notary Public and as no payment was made the Notary public registered in his register on 7. 4. 1982 the noting of dishonour by the defendant on 13. 4. 1982 and he has also stated in the note dated 27. 4. 1982 the reasons advanced by the defendant's Advocate for the dishonour of bills. Legal notice dated 22. 7. 1982 was issued by the plaintiff through their Solicitors at Bombay calling upon the defendant to pay the amount. The defendant sent reply denying their liability to pay the full amount inclusive of the interest as claimed by the plaintiff but offered to pay only Rs. 12,900/- to the account of Kay Gee Textiles and forwarded a demand draft for the said sum of Rs. 12,900/- to the plaintiff in full and final settlement of the plaintiffs claim. The plaintiff, through their solictors at Bombay, sent a reply dated 14. 1. 1983 returning the draft sent by the defendant and rejecting their proposal to settle the matter as put forward by the defendant. The amount due from the defendant to the plaintiff in respect of the three bills is Rs. 39,765. 18 with interest at 18%.

(3.) THE defendant filed written statement as follows :-The defendant is not personally aware about the allegations set out in paragraph 1 of the plaint. This defendant did not place any order to Kay Gee Textiles, Bombay, for the alleged supply of printed art silk fabrics covered under invoices 93/80, 94/80 and95/80 for rs. 25,543. 45. to the surprise of this defendant this defendant was served with the Bank intimation by the plaintiff Bank at Coimbatore. On verification, this defendant came to understand that without any order of this defedant the said Kay Gee Textiles, Bombay, Suo motu sent the goods. This defendant did not place any order with Kay Gee textiles and so, the defendant has rightly refused to take delivery of the goods by executing Hundies. Since this defendant did not place any order and since this defendant rightly refused to execute the hundies for taking delivery of the consignments, one Bina Textiles of Bangalore, the agent of M/s. Key Gee Textiles and Vishal Enterprises requested the defendant on various occasions both in person and also by phone to accept at least the Hundies and also assured that if the goods were not of good designs and not marketable alternative measures would be taken to settle the claims. Not only the bina Textiles of Bangalore, but also the said Kay Gee Textiles of bombay assured the same. In view of the above understanding and assurance on 25. 4. 1980 the defendant accepted the Hundies and cleared the consignment on the same day. On opening the consignment this defendant noted that the goods were of very old design and not good enough to sell in the market. When this defendant was about to send the sales amount to one M/s. Radhika Mills, this defendant received a notice demanding the amount for which the defendant has sent a suitable reply. This defendant has not committed any wrongful act. This defendant is prepared to pay a sum of Rs. 10/- per metre. This defendant, along with the reply notice sent a demand draft for rs. 12,900/- in full settlement but the plaintiff refused that aid has come forward with this suit. The defendant is not liable to pay the amount claimed in the suit. The plaintiff is also not entitled to interest at 18%.