H K M AND CO Vs. DHAKSHINAMOORTHY

JUDGEMENT

(1.) THIS appeal has been directed against the decree and judgment in O. S. No. 8546 of 1996 on the file of the IV Additional Judge, City Civil Court, Chennai. The defendants in the suit are the appellants herein.

(2.) THE averments in the plaint sans irrelevant particulars are as follows:- THE plaintiff is a wholesale trader in pulses and grains, having its principal place of business at Kancheepuram. THE plaintiff used to import onsignments of Pulses, Sugar and Grains from Northern State to Madras through Railway Transport and sell the goods at Madras as well as at Kancheepuram. D2 and D3 are the partners of D1-firm, which acted as Commission Agent for the plaintiff at Madras. As per the terms and conditions of the Commission Agency, the goods are to be sold by D1 in the Account of the plaintiff and after deducting the expenses of the sale and the Commission payable, the net sale proceeds are to be paid to the plaintiff. THE defendants are liable to furnish the sales statement (pattial) in order to get exemption of the sales tax. Agreed rate of interest for the transaction was 18% per annum. Apart from the commission sales transactions, the plaintiff had also sold to D1 and several consignments by way of outright sale. THE plaintiff had also purchased several consignments of pulses from D1. A regular account has been maintained by the plaintiff commencing from 10. 08. 1990 till 31. 03. 1991. During February-1991, five consignments of Gramdhall were entrusted by the plaintiff to D1-concern. In respect of the first two consignments, the plaintiff had paid the entire value to the Bankers and obtained the Railway receipt and handed over the goods to D1. In respect of the remaining three consignments, the Bank intimation in the name of the plaintiff were handed over to D1 and the payment was made by D1 in the account and name of the plaintiff and the goods were subsequently taken delivery by D1. For the sale effected by D1 during February-1991, he had neither issued the sales statement (pattial) nor paid the sale proceeds realised. He had failed to furnish Form 'F' for the said five transactions, which resulted the plaintiff paying 10% sale tax to the Sale Tax Department from out of the sale turnover of the said five consignments. Apart from the above said five consignments entrusted to D1, the plaintiff had also sold and delivered to D1 92 bags of Gramdhall by way of outright sale under Credit Bill No. 29, dated 16. 2. 1991 for Rs. 79,079. 50. As per the agreed terms of the Sale, as well as for the Commission sales transaction, the first defendant concern is liable to pay interest at the rate of 12% per annum on the outstanding due. As per the running accounts the first defendant is liable to pay Rs. 2,78,574. 65 for the suit transaction, which took place between 10. 8. 1990 and 30. 3. 1991. THE first defendant is also liable to pay interest for the said principal amount of Rs. 2,78,574. 65 at the rate of 18% pa. Hence, the plaintiff has filed the suit for recovery of a sum of Rs. 3,13,366/- with future interest at the rate of 18% pa on the principal sum of Rs. 2,78,574. 65 with costs.

(3.) NOW the point for determination in this appeal are as follows:- 1) Whether the defendants have cleared any of the consignment from out of their own money, which was failed to be given credit to in the accounts maintained by the plaintiff for the suit transaction" 2) Whether the judgment and decree in O. S. No. 8546 of 1996 on the file of the IV Additional Judge, City Civil Court, Chennai, is liable to be set aside for the reasons stated in the memorandum of appeal"