Bombay High Court
Ravi Steel Industries - Applicant vs Anilkumar Shyamsunder Goyal on 3 August, 2022
Bench: N. J. Jamadar
24-SJ-76-21+.DOC
Sayali Upasani
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUMMONS FOR JUDGMENT NO. 76 OF 2021
IN
COMM. SUMMARY SUIT NO. 113 OF 2021
Ravi Steel Industries ...Plaintiff
Versus
Anilkumar Shyamsunder Goyal
Sole proprietor of G.A. Industries ... Defendant
Mr. Girish Kedia, for the Plaintiff.
None for the Defendant
CORAM: N. J. JAMADAR, J.
DATED : 3rd August, 2022
ORDER:-
1. This Commercial Division summary suit is instituted for
recovery of a sum of Rs.1,09,95,471/- along with further interest
on the principal amount of Rs.75,82,444/- at the rate of 18% per
annum from the date of the suit till payment and/or realization.
2. The material averments in the plaint can be summarized as
under:
(a) The plaintiff is a registered partnership firm. It deals
in the business of trade of Galvanised sheets and other ancillary
products. The defendant also deals in the business of
manufacturing and trading in Iron and Steel products under the
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name and style of G. A Industries, a proprietary firm. In the
regular course of business, the plaintiff used to supply the goods
upon orders being placed by the defendant.
(b) Pursuant to the telephonic order placed by the
defendant, the plaintiff sold and delivered the goods under four
invoices; dated 22nd February, 2019, 1st March, 2019 and 8th
March, 2019, aggregating to a sum of Rs.75,82,444/-. The
defendant accepted the delivery of goods without any dispute as to
price, quality and quantity thereof.
(c) Under the terms of the invoices, in the event of non
payment of the price of the goods on the due date, interest at the
rate of 36% per annum was chargeable. The defendant committed
default in payment of the price of the goods sold and delivered
under the aforesaid invoices. After a lot of persuasion, the
defendant had drawn a cheque bearing No.745028 for a sum of
Rs.75,82,444/- payable on 7th September, 2021 on Indian
Overseas Bank, Pokhran Road, Thane (W) Branch, towards the
discharge of the liability. The accused had assured to pay interest
on the due amount at a later date. However, upon presentment,
the cheque was returned unencashed, as the operations in the
account on which the said cheque was drawn, were stopped
pursuant to an attachment order. The plaintiff called upon the
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defendant to pay the amount covered by the cheque along with
interest accrued on the due amount, by notice dated 9 th
September, 2021. Despite the service of notice, the defendant
committed default in payment. Hence, the suit for recovery of the
amount covered by the dishonored cheque under Order XXXVII of
the Code of Civil Procedure,1908 ("the Code").
3. Upon service of the writ of summons, the defendant
appeared. Thereupon the plaintiff took out a summons for
judgment. It was duly served on the defendant. Though time was
sought on behalf of the defendant, yet an affidavit-in-reply seeking
leave to defend has not been filed. Thus, by an order dated 28 th
June, 2022, this Court directed that the summons for judgment
be listed for hearing and final disposal, on 5th July, 2022.
4. On 28th July, 2022, Mr. Shivam, the learned Counsel for the
defendant, instructed by APS Law associates, informed the Court
that he has no instructions from the defendants. Thereupon, since
leave to defend was not sought, the Court directed that the
summons for judgment be listed for hearing under Order XXXVII
Rule 3(6) of the Code.
5. The plaintiff has filed an affidavit of evidence and
compilation of documents in support of its claim.
6. I have heard Mr. Kedia, the learned Counsel for the plaintiff.
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I have also perused the averments in the plaint, affidavit of
evidence and the original documents tendered for the perusal of
the Court.
7. Evidently the suit is instituted for recovery of the unpaid
price of the goods sold and delivered by the plaintiff to the
defendant. The plaintiff asserts, towards repayment of the price of
the goods sold and delivered, the defendant had drawn a cheque
bearing No.745028 for a sum of Rs.75,82,444/- on Indian
Overseas bank, Pokhran Road, Thane (W) Branch, on 7 th
September, 2021. The amount covered by the said cheque,
according to the plaintiff, represents the amount for which the
invoices (Exhibits 1 to 4) were raised. The said cheque was
dishonoured on presentment. Thus, the suit falls within the ambit
of Order XXXVII Rule (1)(2)(a) of the Code.
8. The claim of the plaintiff that it had sold and delivered the
Galvanised Sheets finds support in the invoices dated 22 nd
February, 2019 (Exhibit-1), 1st March, 2019 (Exhibit-2) and 8th
March, 2019 (Exhibits-3 and 4). The delivery of goods is evidenced
by E-Way Bills. The invoices, inter alia, provide that the term of
payment was immediate, and if amount of the bill was not paid
within due date, interest shall be chargeable at 36% per annum.
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9. The further claim of the plaintiff that to discharge the
liability the defendant had drawn the cheque finds support in the
true copy of the cheque (Exhibit-5). The dishonour of the cheque is
evidenced by the cheque return-memo, dated 8 th September, 2021
(Exhibit-5). It seems the plaintiff addressed a demand notice on 9 th
September, 2021 (Exh.6). The postal acknowledgments evidence
the service of the demand notice. It further appears that, post
institution of the suit, the plaintiff was served with a reply to the
demand notice wherein the liability was flatly denied.
10. In the backdrop of the aforesaid material, the sale and
delivery of the goods can said to have been established beyond the
pale of controversy. As indicated above, invoices have been raised
and delivery of the goods is evidenced by E-Way Bills. There are
documents which evidence issue and dishonour of cheque. The
presumption contained in Section 118 of the Negotiable
Instruments Act, 1881 further fortifies the existence of underlying
consideration.
11. In view of the provisions contained in Sub Rule (6) of Rule 3
of Order XXXVII of the Code, if the defendant has not applied for
leave to defend, the plaintiff becomes entitled to judgment
forthwith. In the case at hand, despite entering appearance, the
defendant chose not to seek leave to defend. Even otherwise, the
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claim of the plaintiff seems to be substantiated by documents of
unimpeachable character.
12. Thus, I am impelled to pass a decree. Hence, the following
order:
ORDER
(i) The summons for judgment stands allowed.
(ii) The defendant do pay a sum of Rs.1,09,95,471/-
along with interest on the principal amount of
Rs.75,82,444/- at the rate of 12% per annum from
the date of the suit till payment or realization.
(iii) The plaintiff is also entitled to costs of the suit.
(iv) The plaintiff is entitled to refund of Court fee, if any,
in accordance with rules.
(v) Decree be drawn and sealed expeditiously.
[N. J. JAMADAR, J.]
