JUDGMENT S. Mukerjee, J.
1. The plaintiff, incorporated company having registered office at Mumbai, is dealing with the sale and marketing of automobile parts. The Defendant claims to be Proprietor of M/s. Shyam Motors which has been supplying its products to the Defendant from time to time as per orders placed by the defendant.
2. It is further claimed that the defendant has been making payments/ part-payments against the goods so supplied.
3. All payments made were duly appropriated against the goods so supplied/delivered. The statement of account, been annexed as Annexure-A to the plaint, and as per the said statement, a sum of Rs. 7,18,621/45 is still outstanding and due from the Defendant after giving due credit/adjustment of all payments/part payments received, Along with credit notes, debit notes etc.
4. The plaintiff claims that the defendant has neglected and failed to make payment of the above said amount, despite several reminders.
5. It is also the case of the plaintiff company, that it served legal noticed dated 4.12.95 calling upon the defendant to make payment of the aforesaid outstanding amount.
6. In response to the said legal notice dated 4.12.95, the defendant, vide its reply dated 30.12.95, admitted the business transaction between the parties.
7. However it is alleged that the defendant raised false, frivolous issues in the said reply.
8. The plaintiff also claimed interest at the rate of 21% p.a., which is the prevalent rate according to the custom and usage, and in the alternative as damages for wrongfully withholding payment.
9. The suit amount of Rs. 9,28,235/45, includes the amount due towards the price of goods supplied, being Rs. 7,18,621/45, and interest at 21% from 10.3.95 to 31.7.96 coming to Rs. 2,09,614/00.
10. Written statement had been filed by the defendant, and thereafter the issues had also been framed vide order dated 16.3.99. List of witnesses was also filed by the plaintiff, but not by the defendant.
11. Vide order dated 19.11.99, the issue No. 1was deleted.
12. On 12.12.2000, with the consent of the parties, the Joint Registrar of this Court, was appointed as the Local commissioner to record the evidence. Once again, the defendant was granted time to file the list of witnesses. But despite lapse of more than a year, the defendant did not file any list of witnesses nor took any steps in the matter.
13. On 11.7.2002, which was the date fixed for the recording of evidence, the plaintiff, as per amended provisions of CPC, filed an affidavit by way of evidence. The presence of the defendant was awaited till late afternoon on 11.7.2002 and as there was no appearance on behalf of defendant, thereupon the evidence of the defendant was closed.
14. On 16.8.2002, arguments were heard exparte, as there was no appearance on behalf of the defendant on the said date as well. The plaintiff has filed a short synopsis dated 20.8.2002.
15. Since issues have been framed in the matter, it would be appropriate to render findings issue-wise on the following issues that remained after 19.11.1999:-
1. What was the value of goods supplied by the plaintiff.
2. Whether any payment was made, in cash by defendant, if so what amount?
3. To what amount, if any, the plaintiff is entitled?
4. Whether plaintiff is entitled to interest, if so, at what rate and for what period?
5. Relief.
Issues Nos. 1 and 3 :-
16. It would be appropriate to deal with issues No. 1 & 3 together. The witness Shri O.P. Bansal, Deputy Manager of the plaintiff, has proved the original invoices which are duly acknowledged by defendant, as Exhibits PW1/3 to Pw1/30, total value being Rs. 7,18,621/45 as shown in Annexure 'A' to the plaint. He has also deposed in detail that the accounts are maintained in the proper course of business. He has denied that any amounts were paid in cash by the defendant, or that the same have not been credited to the defendant's account. He has affirmed that the amount of Rs. 7,18,621/45 was due and outstanding from the defendant. This witness has proved that legal notice sent by Plaintiff demanding payment, as Exh.PW1/31. He has also proved the postal receipt Exh.PW1/22. Exh. PW1/33-34. No evidence has been produced by the defendant, who has also not cross examined the plaintiff's witnesses on any account whatsoever. In this view of the matter, it stands established that the plaintiff supplied the goods of the value, as claimed in Annexure A to the plaint, and that only such payments wee received as are stated in the said Annexure-A nothing beyond that, and that an amount of Rs. 7,18,621/45, is due and outstanding from the defendant to the plaintiff.
Issue No. 2:-
17. The onus of proof of issue No. 2 was on the defendant, who has failed to produce any witness or lead any evidence at all in the affirmative. As such the defendant has failed to discharge the initial onus itself, and the issue is decided against the defendant, by holding that no cash amount at all was paid by the defendant to the plaintiff.
Issue No. 4:-
18. The Plaintiff's witness PW1, has stated in his examination-in-chief about the prevalent rate of interest and claimed at the same rate. There is no rebuttal on this aspect at all. Even otherwise the defendant having taken the defense of payment of the goods having been made by cash payment, and having not discharged the said onus at all, the said defense is to be held false and concocted. Thus, both on the testimony of the plaintiff's witness, as also on the ground of damages for wrongfully withholding of amount which was due to the plaintiff, but not paid and that too on false and concocted grounds, the plaintiff is found to be entitled to interest at the rate of 21% p.a.
19. In view of the above findings, the suit is decreed in the sum of Rs. 9,28,235/45, Along with interest @ 21% per annum pendente lite and future till date of realisation on the principal outstanding amount of Rs. 7,18,621/45 till date of realisation, The plaintiff will also be entitled to the cost of the proceedings.
20. The suit is accordingly decreed with costs and interest as detailed above.