KPP -1- SS 4591/1997
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUMMARY SUIT NO. 4591 OF 1997
Rama Petrochemicals Limited )
a Company registered under the Companies Act, 1956, )
having its registered office at 812, Raheja Chambers, )
Nariman Point, Mumbai-400 021 )..Plaintiff
vs.
Urminus Chemengg Pvt. Ltd. )
a Company registered under the Companies Act, )
1956, having its registered office at 30/110 )
30/110 Laxmi Industrial Estate, New Link Road, )
Andheri (West), Mumbai-400 053 )..Defendant
Ms. Geetika Jain, instructed by M/s. Bilawala & Co., for the Plaintiff.
Mr. Krishna Raje, instructed by Mr. A.A. Joshi, for the Defendant.
CORAM: S.J. KATHAWALLA, J.
DATE: 27th March, 2017 ORAL JUDGMENT.
1. The above Suit was filed by the Plaintiff as a Summary Suit against the Defendant. The Plaintiff is a Limited Company incorporated under the Companies Act, 1956, and is engaged in the business of manufacture of petrochemicals at its plant at Patalganga. The Defendant is also a Private Limited Company engaged in manufacture, purchase and sale of solar water heating system.
2. After filing of the Summary Suit, the Plaintiff had taken out ::: Uploaded on - 18/05/2017 ::: Downloaded on - 27/08/2017 21:05:31 ::: KPP -2- SS 4591/1997 Summons for Judgment No. 1206 of 1999. The same was disposed of by an order of this Court (Coram: D.G. Karnik, J.) dated 29th January, 2002. By the said order, unconditional leave was granted to the Defendant to defend the suit. However, the Defendant was directed to file written statement within a period of eight weeks from the date of the order. The Defendant did not file its written statement even 15 years thereafter. In view thereof, the Advocate for the Plaintiff mentioned the matter before this Court on 6th January, 2017 and requested the Court to place the suit for ex-parte decree. The suit was therefore directed to be placed for ex-parte decree on 24th January,2017.
3. On 25th January,2017, Ms. Naphade, instructed by Mr. A.A. Joshi appeared for the Defendant when the suit was adjourned to 30th January, 2017 for an ex-parte decree. Again, on 3rd February, 2017, when the matter was called out for ex-parte decree, Ms. Naphade, instructed by Mr. A.A. Joshi, appeared for the Defendant. The matter was adjourned to 10th February,2017. On 10th February, 2017, the matter was adjourned for ex-parte decree to 3rd March, 2017, when Shri Krishna Raja, instructed by Mr. A.A. Joshi represented the Defendant. On 20th March, 2017 when the matter was again called out for ex-parte decree, Shri A.A. Joshi appeared for the Defendant and the matter was adjourned to 27th March, 2017. Even today when the matter is taken up for ex- parte decree, Mr. Krishna Raja, Advocate for the Defendant is present. Till date, neither the written statement is filed nor any written application is made to allow ::: Uploaded on - 18/05/2017 ::: Downloaded on - 27/08/2017 21:05:31 ::: KPP -3- SS 4591/1997 the Defendant to file written statement in the matter.
4. The affidavit of evidence of Shri Ratnadeep D. Jog, Constituted Attorney of the Plaintiff, is taken on record and marked "X" for identification. Shri Jog (the deponent) has deposed on behalf of the Plaintiff, on the basis of a power of attorney executed in his favour by Shri H.D. Ramsinghani, Director of the Plaintiff, whose signature is identified by the deponent. Under the said power of attorney, the deponent is given all the powers on behalf of the Plaintiff to defend the legal proceedings initiated against the Defendant including all acts, deeds, matters and things whatsoever in respect thereof. Since the original power of attorney is required by the deponent to initiate or defend the other legal proceedings on behalf of the Defendant, the same is allowed to be retained by the Plaintiff and a photo copy of the same is taken on record and marked Exhibit P-1.
5. It is stated by the deponent that all the original documents pertaining to the present matter are in possession with the Income Tax Officer-3 (3) (1) and Additional CIT RG 3 (3) of Income Tax Department. He has produced a copy of the letter dated 13th December, 2011 written by Shri S.K. Satapathy, Commissioner of Income Tax-3, Mumbai, addressed to the Additional CIT, RG 3 (3) , Mumbai granting permission to retain books of accounts and documents of the Plaintiff Company. The originals are therefore retained by the Income Tax authorities and copies of the same are allowed to be produced before this Court. ::: Uploaded on - 18/05/2017 ::: Downloaded on - 27/08/2017 21:05:31 :::
KPP -4- SS 4591/1997 The letter dated 13th December, 2011 is taken on record and marked Exhibit P-2.
6. It is stated in the evidence that the Plaintiff had placed a purchase order No. 320 dated 29th July,1995 with the Defendant for the purchase of solar water heating system as per specifications set out therein, aggregating to Rs. 1,50,00,000/-. According to the Deponent, he had taken photo copy of the said purchase order No. 320 for the office record and has produced the said copy. The contents of the same are true and correct. The purchase order is taken on record and marked Exhibit P-3.
7. It is stated by the deponent that the Defendant acknowledged and accepted the said purchase order and against the same the Defendant issued delivery challan No. 939 dated 19th September, 1995, delivery challan No. 941 dated 21st September, 1995 and delivery challan No. 945 dated 23rd September, 1995. The Defendant assured to deliver the said solar water heating system to the Plaintiff at Savroli-Kharpada Road, Village Patalganga, Dist. Raigad-410 220 through Defendant's Road Transport Carriers on 23rd September,1995. The Deponent has stated that he had taken photo copies of the said delivery challan Nos. 939, 941 and 945 for the office record and the contents of the same are true and correct. The copies of the delivery challans produced by the deponent are taken on record and marked Exhibits P-4, P-5 and P-6 respectively.
8. It is stated by the deponent that against the said purchase order and ::: Uploaded on - 18/05/2017 ::: Downloaded on - 27/08/2017 21:05:31 ::: KPP -5- SS 4591/1997 the delivery challans for the said three solar water heating systems, the Defendant issued to the Plaintiff Invoice bearing Nos. 797, 799 and 803 dated 19th September, 1995, 21st September, 1995 and 23rd September, 1995 for Rs. 50,00,000/- each. The deponent has stated that he had taken photo copies of the said invoices for the office record and has produced the said copies, which are taken on record and marked Exhibits P-7, P-8 and P-9 respectively.
9. The deponent has stated that he had addressed three letters dated 7th February, 2017 to the Mumbai Mercantile Co-operative Bank Ltd., Bank of India and Bank of Baroda, requesting them to provide the Plaintiff with the certified copies of the Bank statements pertaining to the relevant period. The copies of the said three letters dated 7th February, 2017 bearing the acknowledgment of the Banks are taken on record and marked Exhibits P-10-, P-11 and P-12 respectively.
10. The deponent has stated that by letters dated 2nd March, 2017, 6th March, 2017 and 27th February, 2017, the Bombay Mercantile Co-operative Bank Ltd., Bank of India and Bank of Baroda, expressed their inability to provide to the Plaintiff the respective Bank statements since the same pertain to the years 1995-1996 and such old records were not available. The said letters dated 2nd March, 2017, 6th March, 2017 and 27th February, 2017, are taken on record and marked Exhibits P-13, P-14 and P-15 respectively. It is stated by the deponent that he is therefore producing photo copies of the statements of account for the years 1995-1996 which are in possession of the Plaintiff. The deponent has ::: Uploaded on - 18/05/2017 ::: Downloaded on - 27/08/2017 21:05:31 ::: KPP -6- SS 4591/1997 stated that he had himself taken photo copies of the same at the relevant time and had compared the same with the original and that the contents of the said statement are true and correct. The said statements are taken on record and marked Exhibit P-16 (Colly.)
11. It is further stated by the deponent that despite the amount of Rs. 1,50,00,000/- being paid, the Defendant failed and neglected to deliver the said solar water heating systems. In view thereof, the Plaintiff through its Advocate issued notice dated 20th October,1997, calling upon the Defendant to refund the said amount of Rs. 1,50,00,000/- with interest thereon at the rate of 18 per cent per annum. The deponent has stated that he had given instructions to the Advocate for the Plaintiff to draft the said notice. The contents of the notice are true and correct and he identifies the signature of the Advocate. The copy of the said notice dated 20th October,1997 is taken on record and marked Exhibit P-17.
12. The deponent has stated that the Plaintiff has therefore filed the present suit for a decree against the Defendant to pay to the Plaintiff a sum of Rs. 1,52,36,712/- together with interest at the rate of 18 per cent on the principal sum of Rs. 1,50,00,000/- from the date of filing of suit till payment and/or realisation and the Plaintiff is entitled to an order and decree as prayed.
13. I have gone through the averments in the plaint as well as the exhibits mentioned hereinabove. From Exhibit P-3 it is clear that the Plaintiff had placed a purchase order with the Defendant for purchase of three solar water heating ::: Uploaded on - 18/05/2017 ::: Downloaded on - 27/08/2017 21:05:31 ::: KPP -7- SS 4591/1997 systems for the consideration aggregating to Rs. 1,50,00,000/-. The Defendant issued delivery challans which are marked Exhibits P-4,P-5 and P-6 and also raised invoices being Exhibits P-7,P-8 and P-9 respectively. It is established from Exhibit P-16, which are Bank statements, that the Plaintiff had in fact paid an amount of Rs. 1,50,00,000/- during the year 1995-96 to the Defendant. Exhibit P-17 makes it clear that the Defendant failed and neglected to supply the three solar water heating systems and therefore the Plaintiff through his Advocates sought refund of the said amount of Rs. 1,50,00,000/- with interest thereon at the rate of 18 per cent per annum, the same being a commercial transaction. The Defendant failed and neglected to reply to the said letter. The Defendant has not filed its written statement because of which everything stated in the plaint has remained uncontroverted. The decree as sought by the Plaintiff therefore deserves to be granted. In view thereof, the following order is passed:
(i) The Defendant is Ordered and decreed to pay to the Plaintiff a sum of Rs. 1,52,36,712/- together with further interest on Rs. 1,50,00,000/- at the rate of 18 per cent per annum from the date of filing of the suit till payment and/or realisation.
(ii) The Defendant shall pay to the Plaintiff the costs of this Suit.
(iii) Plaintiff is entitled to refund of court fees, if any, as per Rules.
14. The Suit is accordingly disposed of.
(S.J. KATHAWALLA, J.) ::: Uploaded on - 18/05/2017 ::: Downloaded on - 27/08/2017 21:05:31 :::