JUDGMENT Anil Kumar, J.
Page 2082
1. This judgment will dispose of plaintiff's suit for recovery of Rs. 30,57,714.40 on account of price of the goods supplied to the defendant for which the defendant failed to make the payment.
2. The plaintiff filed the suit contending that it is a company duly incorporated under the Companies Act having its registered office at Kanchanjunga Building, 18, Barakhamba Road, New Delhi. Shri B.K. Khurana was averred to be the Dy. General Manager (Legal) and a general attorney of the plaintiff company who signed, verified and instituted the suit.
3. The plaintiff claimed that he is engaged in manufacture of textile yarns etc. The defendant was appointed as consignment agent for sale of the products of the plaintiff company and for collecting and making payment to plaintiff through its branch office at Selam, Tamil Nadu. According to the averments made by the plaintiff, defendant used to procure orders in Tamil Nadu and communicate to the plaintiff company which used to send goods to the defendant by road transport and deliver all goods demanded to the defendant. Defendant was selling the goods on the rates duly approved by the plaintiff company and he was entitled for commission of 1.5 per cent on the net sales. The responsibility to collect the price of goods from the customers was that of defendant and he was liable to deposit sales tax directly with the authorities. The defendant had to deliver the goods at his own risk to different purchasers and in case of failure of defendant to recover the price of goods from the customers, defendant was liable to make payment to the plaintiff.
4. Since, it was the responsibility of the defendant to recover the price of the goods from the purchasers, he was raising bills in his own name on the customers and a copy of such bills used to be endorsed by the defendant to the plaintiff. He was collecting payment in his own name from the purchasers and remitting the amount to the plaintiff. On account payment used to be made by the defendant to the plaintiff. The plaintiff company maintained accounts in the normal course of business on computers instead of usual book of accounts and no separate books of account were maintained. A running account was maintained in the name of the defendant and the price of goods sent to him used to be debited in his account and the money received from his used to be credited in his account.
Page 2083
5. When the transaction started between the plaintiff and the defendant, defendant started making regular payments within a period of 30 to 45 days, but after some transaction he started delaying in sending the amounts for the price of goods which used to be delivered to him. Plaintiff averred that the last payment was made by the defendant by means of two cheques dated 30th May, 1997 and 26th May, 1997 for Rs. 3,150 and Rs. 1.00 lakh respectively, out of which cheque dated 30th May, 1997 bearing No. 89582 for Rs. 3,150 was encashed on 10th June, 1997 but the other cheque for Rs. 1.00 lakh was dishonoured on 13th June, 1997 for which no payment was made by the defendant thereafter.
6. The plaintiff averred that the suit is within time as the last transaction took place between the parties on 31st March, 1998 when the debit and credit balances in the account of defendant were taken at the end of financial year. Even according to the last payment made on 10th June, 1997 for Rs. 3,150, it was contended that the suit was filed within time as according to part payment made by the plaintiff, the suit could be filed by 9th June, 2000 on which date the Court was closed for summer vacation and it was filed after expiry of summer vacation in 1997, on 30th June, 1997.
7. The summons of the suit was served on defendant by publication in the newspaper "National Herald" and since nobody appeared on his behalf, defendant was proceeded ex parte on 16th September, 2003. Thereafter, plaintiff filed his ex parte evidence on affidavit and proved the documents.
8. The plaintiff filed the evidence of Shri B.K. Khurana, Dy. General Manager (Legal), by his affidavit who deposed that he is competent to depose on behalf of plaintiff company as he is the general attorney. He proved the power of attorney executed in his favor which was exhibited as P.W. 1/2. He proved the certificate of incorporation of plaintiff company as P.W. 1/1. He categorically deposed that defendant was appointed as a consignment agent for sale of the products of the plaintiff company and for collecting and making payment of price of goods to plaintiff through its branch office at Selam, Tamil Nadu and proved the copy of letter dated 19th March, 1993 which was exhibited as P.W. 1/3.
9. The witness of the plaintiff categorically deposed that the plaintiff used to send goods by road transport which used to be collected by the defendant. After receiving the goods, the defendant used to sell the goods to his customers in his name and under his invoices. According to the witness, the defendant was entitled for 1.5 per cent of his commission on the net sales. It was the duty and liability of the defendant to collect the price of goods from the purchasers and to pay sales tax directly to the authorities and to pay the amount, price of goods to the plaintiff. Specific deposition was made by the witness of the plaintiff that the goods were delivered to the defendant at his own risk and he was liable to make the payment in case the price of goods was not received by the defendant from the customers/purchasers. He proved the carbon copies of Bill Nos. 451 to 457 which were exhibited as P.W. 1/4 to P.W. 1/10 and carbon copies of Bill Nos. 459 to 487 as Ex. P.W. 1/11 to P.W. 1/39. The running account maintained by the plaintiff in the name of defendant was also deposed about and on the basis of the account maintained Page 2084 in the account of the plaintiff, it was deposed that the defendant is liable for a sum of Rs. 30,57,714,.40 as on 31st March, 1998. The witness also deposed about the last cheque dated 30th may, 1997 which was encahsed on 10th June, 1997 for an amount of Rs. 3,150. The witness claimed that though the plaintiff is entitled to recover interest at 18 per cent per annum, however, the claim of interest was given up and only the amount as due on 31st March, 1998 and pendente lite and future interest has been claimed.
10. The pleas raised by the plaintiff in his plaint and the deposition made on behalf of the plaintiff by his witness remained un-rebutted as no written statement was filed on behalf of defendant nor defendant or any witness on his behalf appeared and deposed refuting the pleas and contentions and facts and documents proved on behalf of plaintiff.
11. The plaintiff has proved that it is a company duly incorporated under the Companies Act and the suit has been filed by a duly authorized person, who has signed, verified and instituted the plaint on behalf of the plaintiff. The plaintiff has also established that it was delivering goods to defendant who was a consignment agent and who had been receiving the goods. The plaintiff has also substantiated that it was the liability of the defendant to recover the price of the goods sold by defendant to the customers under the invoices which were in his name and he was liable for payment of sales tax directly to the authorities. The plaintiff has established that defendant was entitled for 1.5 per cent commission on the net sales made by the defendant. In case of non-receipt of the price of goods, it was the liability of the defendant and on account being taken as on 31st March, 1998, a sum of Rs. 30,57,714.40 is due from the defendant to the plaintiff. The plaintiff has been able to establish in the fact and circumstances that he is entitled to recover a sum of Rs. 30,57,714.40 from the defendant.
12. The deposition on behalf of the plaintiff that last payment received on behalf of defendant was on 10th June, 1997 and therefore the suit of the plaintiff filed on 30th June, 1997 after the expiry of limitation on 9th June, 1997 on reopening of the Court after summer vacation in 1997, has remained un-rebutted. Consequently, it is also held that the suit of the plaintiff is within time.
13. Considering the pleadings and the evidence led by the plaintiff, he has been able to make out a case for recovery of Rs. 30,57,714.40 from the defendant. The plaintiff has however given up his claim for interest till the filing of the suit.
14. In the circumstances, the suit of the plaintiff for recovery of Rs. 30,57,714.40 is decreed in favor of plaintiff and against the defendant. Pendente lite and future simple interest @ 6 per cent per annum is also awarded to the plaintiff and against the defendant. Cost of the suit is also awarded to the plaintiff against the defendant. Decree sheet, therefore, be drawn accordingly.