Rama Petrochemicals Ltd vs Urminus Chemengg Pvt Ltd
2017 Latest Caselaw 1067 Bom

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

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

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.

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

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

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

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.)