Dr. Wellmans Homeopathic ... vs Incorp. Marketing Service (P) ...
1991 Latest Caselaw 583 Del

JUDGMENT

J.K. Mehra, J.

(1) This is a suit instituted by the plaintiff which happens to be a registered partnership him against the defendant for recovery of the price of medicines sold and delivered to the defendant. Neon the filing of the suit, summons were issued and defendant failed to enter appearance despite service. Accordingly, they were proceeded against exparte vide order dated 22nd January 1992 and the plaintiff was required to lead evidence on affidavits. Plaintiff has led evidence and one affidavit by way of evidence of Shri Gurmeet Singh Dhingra, one of the partners of the plaintiff has been filed. He has proved on record that the plaintiff is a registered partnership duly registered under the Partnership Act and Form-A issued by the Registrar of Firms has been duly placed on record and is marked as Ex. Public Witness .I/I. He has also proved that he had signed and verified the plaint and instituted the suit and had also authorised I his lawyer Shri Suryakant Singia, Advocate to represent the firm. He has also proved office copy of a letter Ex. Public Witness . 1/2 whereby the defendant was appointed a distributor for the plaintiff's products. The various documents proving the orders placed by the defendant including Ex. Public Witness . I /3 and PW. 1 /4 have also been proved in the said affidavit. The relevant bill raised after allowing the due discount to the defendant is Ex. Public Witness . 1/5. A telegraphic order and the post confirmation copy thereof are Ex. Public Witness . 1/6 and PW. 1/7 respectively. Further orders were placed and the bill in respect of the said telegraphic order is Ex. Public Witness . 1/8. It is proved similarly the further invoice and which is marked as Ext. Public Witness . 1/10. It is also proved that none of the goods were rejected by the defendants and those were received and accepted. The total value of the medicines sold and delivered by the plaintiff to the defendant comes to Rs. 95,196.19. Out of this amount of Rs. 95,196.19, the plaintiff received a sum of Rs. IO.OCO.00 by means of a bank draft still leaving a balance of Rs. 85,196.19. The plaintiff was having with it a security deposit of Rs. 5000.00 which as per mutual agreement between the parties carried interest at the rate of 18 % and this amount of Rs. 5000.00 as on the date of the institution of the suit had become Rs. 7325.00 by adding the accrued interest. The plaintiff is liable to give credit to the defendant for this amount. Thus after adjusting the said amount of security deposit Along with interest thereon a sum of Rs.77.871.18 was still due and payable on the date of institution of the suit. The defendant was also required to provide sales declaration 'C' Forms or in the alternative was to pay the said sales tax amounting to Rs. 5711.77 being the balance sales tax at the rate of 6ø/o which is the difference between the Local Sales Tax levied which is l0"/o and the Central Sales Tax that the defendant paid on the products purchased at the rate of 4 %. Since such forms have not been furnished, the plaintiff would be entitled to a decree for Rs. 571177 on this account also. The plaintiff has claimed interest at the rate of 19.5% on the said amount outstanding on account of price of the goods on the plea that the commercial banks are charging that rate on the overdraft facilities. The liability on account of the price of the goods has been duly acknowledged by the defendant in its letters dated Ext. Public Witness . 1/13 and Ext.P.W. 1/27. However, I do not find any mention of any such rate of interest in the mutual agreement between the parties. In the notice of demand the plaintiff had claimed interest at the rate of 18% p.a. and that notice is dated 19th December, 1988 and is marked as Ext. Public Witness . 1/29. That notice was, however, never served on the defendant. As such even that cannot be treated to be a notice under Interest Act. In the circumstances the claim for interest prior to the filing of the suit is rejected. I, therefore, hold that the plaintiff is entitled to recover from the defendants a total sum of Rs. 83,582.96. Accordingly, I pass a decree in favor of the plaintiff for a sum of Rs. 83,582.96 against the defendant with pendente life interest at the rate of 18 % p.a. from the date of institution of the suit till of decree and thereafter also at the rate of 18 % p.a. till the date of payment. Plaintiff shall also be entitled to costs of the suit. Let a decree be drawn up in the above terms.