- 1 - HC-KAR NC: 2025:KHC:30396 RSA No. 756 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 756 OF 2020 (MON) BETWEEN: SURESH SHAH S/O LATE SHA CHANDANMAL, AGED ABOUT 47 YEARS, PROPRIETOR, SHAH PHARMA AGENCIES, B.H. ROAD, SHIVAMOGGA - 577 201. …APPELLANT (BY SRI. S.V. PRAKASH, ADVOCATE) AND: 1. MAHESHWARAPPA T S/O MALLESHAPPA, PROPRIETOR, GAJANNA ASSOCIATES, DAVANAGERE, PRESENTLY RESIDENT OF HIREJAMBUR VILLAGE, SHIKARIPURA TALUK - 577 427, SHIVAMOGGA DISTRICT. 2. SIDDARUDHA S/O MALLESHAPPA, AGED ABOUT 39 YEARS, ADVOCATE, DOOR NO.1292/2, 7TH CROSS, 2ND MAIN, K.T.J. NAGARA, DAVANAGERE. …RESPONDENTS (BY SRI. SRINIVASA, ADVOCATE FOR R1; R2 - SERVED) Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30396 RSA No. 756 of 2020 THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 04.09.2019 PASSED IN RA.NO.04/2016 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE, SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.11.2015 PASSED IN OS.NO.107/2006 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM., SHIVAMOGGA. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.S.V.Prakash, learned counsel for the appellant and Sri.Srinivasa, learned counsel for respondent No.1. 2. Plaintiff has filed the present second appeal challenging the concurrent findings recorded by the Trial Court as well as the First Appellate Court in dismissing the suit of the plaintiff which is filed for recovery of money in O.S.No.107/2006. 3. Facts in brief which are utmost necessary for disposal of the present appeal are as under: - 3 - HC-KAR NC: 2025:KHC:30396 RSA No. 756 of 2020 3.1. Plaintiff laid a claim against defendant Nos.1 and 2 for recovery of sum of Rs.2,00,446/- along with interest and court costs by contending that plaintiff is the proprietor of M/s. Shah Pharma Agencies Medicine Distributors and Wholesale Agent in Shivamogga. 3.2. It is further contended that plaintiff is the stockiest for M/s. Indop Chemicals Pvt. Ltd., Ahamadabad, and he was running the said shop for last 19 years. 3.3. According to him, defendant Nos.1 and 2 purchased certain items vide credit bills marked at Exs.P.1 to 9, a covering letter was placed on record confirming the said transaction which was dated 17.03.2001 vide Ex.P.10, Ex.P.11 is the running account maintained by the plaintiff, Ex.P.12 is the package note, Exs.P.13 to 14 are the credit notes and according to the plaintiff, defendants did not pay the amount covered under the credit bills and notes and therefore, laid a claim in a sum of Rs.2,00,446/-. - 4 - HC-KAR NC: 2025:KHC:30396 RSA No. 756 of 2020 4. Pursuant to the suit summons, defendants entered appearance and contended that entire amounts have been paid and in that regard, there was a litigation earlier between the parties in O.S.No.163/2004 and criminal case in CC No.1778/2009. 5. According to the defendants, a notice came to be issued vide Ex.D.1 on 12.04.2000 which was served on the plaintiff vide postal acknowledgment vide Ex.D.5 and said issuance of notice is suppressed by the plaintiff in the plaint and sought for dismissal of the suit. 6. Learned Trial Judge after raising necessary issues, in view of the rival contentions of the parties, dismissed the suit of the plaintiff not only on the ground that there was no proper proof placed on record by the plaintiff but also on the ground of limitation. 7. Being aggrieved by the dismissal of the suit by the plaintiff, he filed an appeal before the First Appellate Court in RA No.4/2016. - 5 - HC-KAR NC: 2025:KHC:30396 RSA No. 756 of 2020 8. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and raised six points for consideration wherein, point No.5 is on the question of limitation and point Nos.2 and 3 was on the question of liability of defendants with the plaintiffs. 9. Learned Judge in the First Appellate Court after reappreciating the factual aspects and the material evidence placed on record, bestowed his attention to the cross-examination of P.W.1 on 30.06.2000 to 12.01.2001 where under, there was a supply of goods worth Rs.2,09,272-21 paise vide credit invoices and admitted that there was a return of goods to the tune of Rs.1,62,959.91 paise. 10. Plaintiff also admitted that there was no counter claim laid by him in the suit filed by the defendants in O.S.No.163/2004 and dismissed the appeal of the plaintiff. - 6 - HC-KAR NC: 2025:KHC:30396 RSA No. 756 of 2020 11. Being further aggrieved by the same, unsuccessful plaintiff has preferred the present second appeal on following grounds and on substantial questions of law: GROUNDS  The impugned judgment and decree passed by both the courts are totally illegal, arbitrary, perverse and unsustainable regard being had to the admitted facts and circumstances of the case.  The judgment and decree passed by both the courts are totally contrary to law, facts and legal evidence on record.  Both the courts below have failed to apply law to the admitted facts and circumstances of the case and thereby passed an erroneous judgment and decree.  Both the courts below have failed to comprehend the facts as pleaded by the parties and the law on the point which has caused total miscarriage of justice to the appellant.  The trial court has not framed proper issues and those framed did not cover the pleadings of the parties.  The lower appellate court has not framed proper points for consideration and those framed did not cover the case of the parties.  Both the courts below have not drawn proper inferences and those drawn are illegal and erroneous. - 7 - HC-KAR NC: 2025:KHC:30396 RSA No. 756 of 2020  Both the courts below have failed to raise proper presumptions and those raised are illegal and probabilities have not been given due weightage.  Both the courts below have not considered the oral and documentary evidence adduced by the parties in proper perspective which resulted in passing an erroneous judgment.  The impugned judgment and decree passed by the lower appellate court confirming the judgment and decree of the trial court in the matter of appreciation of evidence is illegal and contrary to law.  The impugned judgment and decree passed by the lower appellate court is not a speaking one and it lacks application of mind.  The lower appellate court in its findings on I.A.No.I which covered in point No.1 in detail has made comment about the documents. Though such documents were produced by the plaintiff seeking permission to adduce the said documents as additional evidence, assigning the reason that those records were with the authority of Central Government, Le. Drug Inspector who have visited and taken those documents, Thus, he was unable to produce them before the trial court. Whereas, considering that the reasons why he was unable to produce and the validity of the document has been discussed which is contrary to the law. Since the burden lies upon the plaintiff to prove those documents in support of his case. Whereas, without permitting him to say on those documents and admitting them in evidence the lower appellate court has made heavy comment on the validity and evidentiary value of those documents. It is contrary to law and also outside the scope of the relevant law. Thus the finding on I.A. No.1 by the lower appellate court is highly - 8 - HC-KAR NC: 2025:KHC:30396 RSA No. 756 of 2020 capricious, perverse and as such it is untenable in law.  It is also to be noted here that thought the original documents were placed before the court along with the I.A. No.I, after pronouncing the judgment, the original documents were taken back by substituting the Xerox copies of the same as those documents were un-exhibited. However, the appellant is ever ready to place those documents before the court for inspection. Further, it is submitted that those documents are very material documents which would throw light that the appellant not due to the respondents contrary the respondents are indebted to the appellant as claimed in the suit. Therefore, the documents intended to be produced as additional evidence are material documents which would assist the court in resolving the dispute between the parties. This aspect of the case has not at all been considered by the lower appellate court, thus the finding on that aspect rendered by the lower appellate court is capricious, perverse as such untenable.  Both the courts below have lost their sight about the nature of the suit as well as the transactions between the parties and come to the wrong conclusion and held that the defendants are not liable to pay anything to the plaintiff. Further, courts below have completely discarded the admission given by the defendants in their written statement that the plaintiff had supplied the goods under various invoices and credit bills. When such being the fact that defendants have taken up contention that he has made deposit with the plaintiff for a sum of ₹2,25,000/-, thus the plaintiff had supplied the goods worth ₹2,09,212.20 paisa. Thus the impugned judgment and decree are contrary to law. - 9 - HC-KAR NC: 2025:KHC:30396 RSA No. 756 of 2020  The lower appellate court has expressed contrary to the evidence on record that plaintiff has not deducted the value of the goods returned back by the defendant to him. Such finding is also untenable.  Both the courts below have erred that unless the stock register and also the inspection register are produced and verified, the courts cannot come to the conclusion that the goods returned by the defendants to the plaintiff were sold or returned to the company or not cannot be ascertained.  It is the specific case of the plaintiff that the goods sent back by first defendant to him where near to expire and some of them were already expired. Those can be ascertained from the inspection register. Unless those documents are placed before the court for examination, the courts below cannot come to the conclusion that the plaintiff had already received the value of expired goods from the company. Therefore, the findings of the court below are highly capricious, perverse and amounting to illegality.  The plaintiff has clearly assigned the reasons in the affidavit appended to I.A. No.1 filed under Order XLI Rule 27 before the first appellate court why he has not produced those documents and also what is the significance of those documents, how they are assisting the courts in resolving the dispute between the parties. Inspite of it, the lower appellate court rejected that application and gave finding that the plaintiff has already make goods loss regarding the expiry goods. But such finding is contrary to the law and also the facts on record.  The courts below have observed that the plaintiff has not made any counter claim in the suit filed by the first defendant before the Davanagere court in O.S. No.163 of 2004. But that itself is not - 10 - HC-KAR NC: 2025:KHC:30396 RSA No. 756 of 2020 the ground because he has already maintained separate suit against the defendants to recover the dues as per the accounts kept and maintained by him at his office. It is pertinent to note that the defendants have clearly admitted the transactions between the plaintiff and defendants and it is also clearly admitted that the plaintiff had supplied the goods on several invoices and credit bills when it has been referred that goods were supplied under credit bills that itself clearly goes to show that the first defendant was in due towards the goods bought by him from the plaintiff. Inspite of it, the defendants tried to make confusion and his case has been believed and plaintiffs case has been discarded is contrary to the facts and evidence on record. Thus the impugned judgment and decree passed by the lower appellate court is not sustainable and maintainable under the law.  Both the courts below have not properly considered the facts prevailed in the case. It is an admitted fact that the plaintiff is the wholesale dealer only restricting to Shivamogga district. Whereas the first defendant was appointed as super stockiest to the entire State of Karnataka excluding Shivamogga district. Factually all the dealings were to be made by the company and super stockiest. However, as per the oral direction of the Managing Director of M/s. Indope Chemicals Pvt. Ltd., Ahmadabad initially the plaintiff had supplied the goods to the first defendant on credit bills and also those goods ought to have been immediately sent back to the company by the first defendant itself which the goods were expired but that was also as per the oral direction of the company, the plaintiff had received back the goods from the defendant. Therefore, when the suit was pending, the stocks have not been sent back since those expired goods were maintained in the expiry stock which was also noted by the Drug Inspector during his - 11 - HC-KAR NC: 2025:KHC:30396 RSA No. 756 of 2020 inspection. Therefore, these aspects are also to be proved by the plaintiff since the inspection books were taken by the Drug Inspector, those documents were not produced before the trial court and it was only recently, while the case was pending before the lower appellate court, those documents were returned by the authorities to the plaintiff and hence those were placed before the lower appellate court seeking permission to produce them as additional evidence. But the lower appellate court completely erred by rejecting the said application. The documents which were intended to be produced are very important piece of evidence which assists the court in resolving the dispute between the parties. The application has been rejected on technical grounds. Further, the lower appellate court gave its finding with regard to the each of the document and its validity which is contrary to the law. Because, the courts have got power to make comment on the document only if it is admitted in evidence but in the case on hand, those documents were to be produced as additional evidence therefore to make comment on the documents, the court would acquire the power only after granting permission and those documents are admitted in evidence without that the lower appellate court gave finding about the validity of the documents is totally illegal and same is untenable.  Viewed the matter from any angle and regard being had to the admitted facts and circumstances of the case, the impugned judgment and decree of the lower appellate court confirming the judgment and decree of the trial court cannot be sustained and it is liable to be set aside. - 12 - HC-KAR NC: 2025:KHC:30396 RSA No. 756 of 2020 Substantial Questions of Law i) Whether the judgment and decree passed by the lower appellate court is in consonance with Order XLI Rule 31 in as much as the lower appellate court has failed to re-appreciate the entire evidence on record which is sine-qua-non for disposal of the appeals filed under Section 96 of Code of Civil Procedure? ii) Whether on facts and in the circumstances of the case and regard being had to the law the judgment and decree impugned in this appeal is sustainable in law? iii) Whether the finding of the lower appellate court on I.A. No.1 filed under Order XLI Rule 27 of Code of Civil Procedure, 1908 is sustainable in law? iv) Whether having regard to the evidence on record, the courts below are justified in holding that the plaintiff had not proved that the defendants are liable to pay him sum of Rs.1,42,111.72 paisa? v) Whether the courts below having rightly held that the plaintiff had proved that the defendant was due in a sum of 52,909/- towards debit balance and loss of goods to the plaintiffs to the tune of 1,42,111.72 paisa are justified in dismissing the suit? - 13 - HC-KAR NC: 2025:KHC:30396 RSA No. 756 of 2020 vi) Whether the lower appellate court is justified in law in overturning the finding of the trial court on issue No. 1 in absence of cross objection or an appeal by the defendants? vii) Whether the courts below having rightly held that the defendants have failed to prove that the goods supplied by the plaintiffs were near to expire and therefore he was unable to sell the goods in time and hence he was not liable to pay the amount, whether the dismissal of the suit by the courts below can be countenanced? viii) Whether the courts below are justified in dismissing the suit of the plaintiffs that on the ground that the suit was barred by time regard being had to the provisions of the Indian Limitation Act, 1963?" 12. Learned counsel for the appellant reiterating the grounds urged in the appeal memorandum contended that both the Courts have failed to appreciate the case of the plaintiff that plaintiff maintained the running account in respect of the goods supplied to the defendants. Therefore, the dismissal of the suit based on the limitation - 14 - HC-KAR NC: 2025:KHC:30396 RSA No. 756 of 2020 is incorrect and even if the admission is thereby the P.W.1 to the extent of that there was a return of goods to the tune of Rs.1,62,959.91 paise, for the balance amount, suit should have been decreed by the Trial Court. As such, sought for admitting the appeal for further consideration. 13. Per contra, learned counsel for the respondents would support the impugned judgments. 14. He would further contend that in respect of the dispute, defendants had already filed a suit in O.S.No.163/2004 wherein the plaintiff was a party and he filed the written statement. 15. He also contended that atleast plaintiff should have claimed the amount either by counter claim or by a separate suit when he received the suit summons and belated suit filed by the plaintiff which is subject matter of the present appeal is properly appreciated by both the Courts and dismissal of the suit is just and proper and sought for dismissal of the appeal. - 15 - HC-KAR NC: 2025:KHC:30396 RSA No. 756 of 2020 16. Having heard the parties in detail, this Court perused the material on record meticulously. 17. On such perusal of the material on record, the transaction that took place between the plaintiff and defendants is not in dispute. 18. However, with regard to the quality of the material that is supplied by the plaintiff, there was a dispute. 19. In that regard, defendants had first approached the Court in O.S.No.163/2004. Said suit ultimately ended in favour of the defendants. Plaintiff did not choose to file any counter claim in the said suit. 20. P.W.1 in his cross-examination categorically admits that there was return of goods worth Rs.1,62,959.91 paise and supply of the goods is to the tune of Rs.2,09,272-21 paise. The legal notice issued by the defendants vide Ex.D.1 was served on the plaintiff vide Ex.D.5 is not even spelt out in the plaint averments. As - 16 - HC-KAR NC: 2025:KHC:30396 RSA No. 756 of 2020 such, there is a suppression of material facts as is rightly contended by the defendants. 21. Further, even assuming that the plaintiff had to claim the balance amount, he should have raised counter claim in the suit in O.S.No.163/2004 or atleast file a suit immediately thereafter for the balance amount. 22. Suppressing the fact that there was a return of goods to the tune of Rs.1,62,959.91 paise, filing a suit for recovery of sum of Rs.2,00,446/- has thus resulted in suppression of material facts which has been rightly appreciated by both the Courts. 23. Further, the question of limitation was dealt by both the Courts in detail by taking into consideration as to the due of last invoice as well as the suit filed by the defendants in respect of return of goods and came to the categorical contention that suit is barred by limitation. 24. Having regard to the fact that both the Courts have recorded a factual finding that the suit of the plaintiff - 17 - HC-KAR NC: 2025:KHC:30396 RSA No. 756 of 2020 not only suffers for want of material evidence with regard to the claim made therein but also on the question of limitation. Taking note of the scope of Section 100 of CPC, this Court is of the considered opinion that the substantial questions of law raised in the appeal, do not merit for further consideration. 25. Accordingly, in view of the foregoing discussions: ORDER i. Appeal is meritless and hereby dismissed. ii. No order as to costs. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 29 CT: BHK