SUBBIAH CHETTY AND CO Vs. KANAGAVEL TRADING CO

JUDGEMENT

(1.) THESE second appeals are preferred against the judgment and decree dated 7-12-1992 made in A. S. No. 59 and GO of 1992 by the Court of Additional district Judge, Cuddalore, thereby confirming the judgment and decree dated 24-1-1991 made in O. S. Nos. 26 of 1988 and 76 of 1989 by the Court of Subordinate Judge, cuddalore.

(2.) TRACING the history of the above second appeals coming to be preferred by the plaintiff in the suit, it comes to be known that the plaintiff in O. S. No. 26 of 1988 has filed the suit for recovery of a sum of Rs. 16,700/- with 12% interest from defendants 2 to 6, on averments such as that plaintiff is a registered company; that the 1st defendant is the manufacturer and seller of tins at Virudhunagar, that the 2nd defendant is the Managing Director of the 1st defendant company, defendants 3 to 6 are partners of the 1 st defendant company, plaintiff was a manufacturer of refined oil which was being sold at sealed tins; plaintiff used to purchase tins from M/s. Thangam Industries at Virudhunagar, that the second defendant on starting a new company approached the plaintiff through its representatives stating that they shall supply polished tins at a reasonable price; that the plaintiff knows the second defendant as a partner of M/s. Thangam Industries; that the plaintiff agreed to purchase tins from the 2nd defendant; that on 11-4-1987, 1500 tins were received by the plaintiff from the defendant, that on inspection some defects were found by the plaintiff which was duly informed to the defendants, that the plaintiff paid the transport charges for those 1500 tins, that the 2nd defendant and his son after visiting the plaintiffs factory and on inspection of the damaged tins accepted to replace the damaged goods; that the plaintiff paid a sum of rs. 15,000/- on 4-8-1987 by way of demand draft to the 2nd defendant out of the business relationship prevailing between them at that time; when the plaintiff expected replacement for the damaged tins, defendants on 10-12-1987 through their lawyer issued a legal notice to the plaintiff asking him to pay a sum of Rs. 12,233. 44; that on 19-12-1987 plaintiff replied that the goods supplied were damaged ones and that the defendants are due to the plaintiff a sum of rs. 15,000/- with 12% interest along with a sum of Rs. 950/- towards transport charges and therefore, for recovery of a sum of Rs. 16,700/- from defendants 2 to 6 plaintiff has filed O. S. No. 26 of 1988.

(3.) ON the contrary, the 3rd defendant filed a written statement, which was adopted by defendants 1, 2 and 4, stating that the suit tor return of money is not. legally sustainable one; that the 2nd defendant is not a partner in M/s. Kanakavel Trading Co. and hence, he is not a necessary party to this suit, that the defendants 3 to 6 are alone the partners of the 1st defendant company; that all the defendants 3 to 6 are equally managing the company and hence, there is no managing director for the company and hence, the suit filed against the Managing director of the 1st defendant company is not sustainable in law, that both the company viz. Thangam Industries and Kanakavel Industries are sister companies, that on 11-4-1987 tins were sent to the plaintiff and other parties after duly checking up the quality, etc. , that the plaintiff has never made any complaint about the quality of tins; that the goods were checked by the plaintiff and only one tin was found defective, that until two months plaintiff has not paid any money and hence, on 17-6-1987 1st defendant sent a telegram followed by telegrams on 24-6-1987 and 4-7-1987. As the plaintiff has not paid the amount after so many reminders, on 4-8-1987 one Mr. Balaji was sent to collect the payment; that the plaintiff has handed over a demand draft for a sum of Rs. 15,000/- to Balaji, that on 8-10-1987 a registered notice was sent to the plaintiff claiming a sum of Rs. 16,340. 88 and for the first time on 30-10-1987 the plaintiff replied to that notice stating that the goods are defective. So many registered notices and replies were exchanged between the parties as to their respective claim and counter-claim.