Calcutta High Court

Rinki Plastics Private Limited vs Debasis Mullick on 15 December, 2023

                    IN THE HIGH COURT AT CALCUTTA
                   (Ordinary Original Civil Jurisdiction)
                          COMMERCIAL DIVISION


Present:

The Hon'ble Justice Krishna Rao



                                CS 52 of 2017


                       Rinki Plastics Private Limited

                                    Versus

                                Debasis Mullick




            Ms. Aparajita Rao
                                                  ... for the plaintiff.



Hearing Concluded On : 06.12. 2023

Judgment on              : 15.12.2023

Krishna Rao, J.:

1. The plaintiff has filed the instant suit against the defendant for a decree

of sum of Rs. 41,91,734/-, with an interest @ 24% per annum.

2. It was certified that defendant has not entered appearance either in

person or through Advocate, despite of service of notice. As none

appears on behalf of the defendant, by an order dated 11th October,

2023, this Court had fixed the matter under the list of 'undefended

suits'.

3. The Plaintiff is a registered company under the name and style of

'Rinky Plastics Private Limited', and carries on business as

supplier/dealer of PVC Pipes and Fittings and allied products, having

its registered office at 5/1, Clive Row, Kolkata - 700001.

4. The Defendant carries on business under the name and style of 'M/s

Dharmaraj Hardware', as its Sole Proprietor thereof, from its office at

Sardar Ghatt, (near Vivekananda College More), P.O., P.S., and District:

Burdwan, PIN: 713 101.

5. In the usual course of business, the defendant, from time to time,

placed purchase orders for supply of various sizes and dimension of

UPVC, Pipe, Casing pipe and certain other PVC pipes and fittings, over

telephone and based on such oral orders, the Plaintiff used to supply

and deliver diverse quantities of PVC Pipes and Fittings, etc. from its

factory at Village and P.O. Mondalpur, P.S. Jamuria, District Burdwan

- 713336, to the place of defendant's business, which the defendant

received and accepted without raising any objection or dispute

whatsoever either with regard to the quantities and quality of the

products sent to the defendant by the plaintiff.

6. In respect to the deliveries made by the plaintiff to the defendant, the

defendant had acknowledged the receival of the products by signing the

challan in token of receipt of the goods.

7. The plaintiff, from time to time, raised invoices upon the defendant

which included the applicable Value added Tax.

8. It was, inter-alia, agreed between the parties that the defendant would

make payment of the price of goods sold and delivered within 30 days

from the date of receipt of invoices raised on the defendant in the usual

course of business and in default, the defendant would pay to the

plaintiff an interest thereon at the rate 24% per annum from the due

date of invoices.

9. The Plaintiff has submitted final bill of a total of sum of Rs. 41,17,915/,

during the period from 13th May, 2014 to 11th August, 2015 which

leads to a total number of 13 invoices which the defendant has received

without objections.

10. The defendant, from time to time between 28th May, 2014 and 31st

January, 2015 has made part payments amount to a total sum of Rs.

12,20,000/-, out of total amount of Rs. 41,17,915/- the last of such

payment was received by the plaintiff on 31st January, 2015, leaving a

balance sum of Rs. 28,97,915/- with an added interest @ 24% p.a.

from the due date of each such bill till realisation.

11. In or around the years 2015 and 2016, the representatives of the plaintiff

on several occasions personally visited and approached the defendant, Mr.

Debasis Mullick for settlement of bills at his office. In course of such

negotiation the defendant admitted that a sum of Rs. 28,97,915/- is due

and payable by the defendant to the plaintiff with further interest @ 24%

p.a. as agreed.

12. The defendant, failed and neglected to pay the said sum of Rs. 28,97,915/-

or any part or portion thereof or any interest thereon to the plaintiff in spite

of repeated demands, and even after the defendant assuring the plaintiff to

clear the outstanding dues by December 31, 2016.

13. As the defendants had failed to pay the due amount, the plaintiff had

sent a notice issued on 25th November, 2016, through its Advocate, and

called upon the defendant for payment of the aforesaid outstanding due

of Rs. 28,97,915/- together with an interest @ 24% per annum which

was returned undelivered to the Advocate of the plaintiff by the postal

authorities with the endorsement 'insufficient address'.

14. The Plaintiff, to prove its case, the plaintiff has examined one witness,

namely, Sandip Modi on his behalf and during his examination, six

documents which were exhibited as "Exhibit A to Exhibit F".

Exhibit A - Board resolution passed by the company which has

authorized Mr. Sandeep Modi to deal with this case.

Exhibit B - Bills and invoices with challan raised by the plaintiff

addressing the defendant are exhibited collectively.

Exhibit C - An account of Dharmaraj Hardware prepared by the

plaintiff to show the total bill raised and amount due along with

delivery challans duly received and signed by the agent of the

defendant are exhibited collectively.

Exhibit D - Company's ledger of Dharmaraj Hardware.

Exhibit E - Notice prepared by the lawyer of the plaintiff which

was served by them to the defendant.

Exhibit F - Postal receipt of the notice served by the plaintiff to the

defendant which was returned to the post office due to insufficient

address of the defendant.

15. Exhibit B and Exhibit C collectively proves that the plaintiff had issued

several bills and invoices to the defendant on supply of PVC Pipes and

Fittings at Sadar Ghat (Near Vivekananda College More), Dist.:

Burdwan from 13th May, 2014 to 11th August, 2015 for a total amount

of Rs. 41,17,915/- .

Exhibit D is a ledger of the plaintiff's company which proves the

outstanding due and amount payable by the defendant.

Exhibit E proves that the plaintiff had sent a legal notice dated 25th

November, 2016, to the defendant by speed post to clear off the dues

and Exhibit 'F' is undelivered postal cover which was returned by the

post office to the plaintiff where it says that the legal notice dated 25th

November, 2016, could not be delivered to the defendant due to

insufficient address. It appears from the plaint and several documents,

i.e. invoices, bills, challans, sent to the defendant by the plaintiff, which

were duly received by the defendant. In the said document including

plaint, the address of the defendant is the same address as mentioned

in the legal notice and the defendant had received all documents

including the writ of summons of the case and therefore, it is presumed

that the plaintiff has sent the notice to the defendant at the correct

address but the defendant had deliberately avoid to receive the notice.