Mahavir Aluminium Ltd. vs Sprinkler India Company And Anr.
1995 Latest Caselaw 597 Del

JUDGMENT

Devinder Gupta, J.

(1) Plaintiff is a company engaged in the manufacture of sale of sprinkler, irrigation sets and portable pipeline systems with their factory in the industrial area Bhiwadi, District Alwar, Rajasthan and this suit has claimed a decree for Rs. 5,61,185.56 against the defendants. As per the averments made in the plaint, defendant No. I was appointed as a dealer in the State of Maharashtra under an agreement dated 5.11.1986. Terms of agreement with commission payable are incorporated in para 5 of the plaint. It is the plaintiff's case that after appointment of the defendant as a dealer, he had been placing orders on the plaintiff in regard to the supply of sprinkler, irrigation sets and portable pipeline system and maintained with the plaintiff an open and current account in the regular course of business. The plaintiff supplied material from time to time to the defendant as per terms of the agreement. Certain disputes were raised by the defendant as regards supplies made and credit memos. It was decided amongst parties to settle those differences in a meeting which was held at Delhi in the registered office of the plaintiff and in pursuance to the meeting held on 15th, 16th and 17th November at Delhi in which defendant No. I was represented by defendant No. 2 and the plaintiff was represented by Shri N.K. Jain, Chief Executive and Shri R.K. Seth, the Sales Manager.Defendants after going through the entire accounts and other connected matters confirmed that an amount of Rs. 6,03,632.02 was outstanding against defendants which defendants were liable to pay to the plaintiff. It was further agreed and confirmed by the defendants at Delhi that certain materials supplied by the plaintiff to the defendant of the value of Rs. 3,19,668.18 was lying in stock with the defendants in their godown in the State of Maharashtra for which same a bill was prepared which was signed by defendant No. 2 on behalf of defendant No. I. It was agreed that in case the material which was 445 alleged to be lying with the defendants was returned before 31.12.1988 credit memo would be issued to the defendants by the plaintiff otherwise the entire amount of the bill was payable by the defendants to the plaintiff together with other outstanding amount of6lacs and odd. Thus, according to the plaintiff, defendant in Delhi acknowledged and accepted the liability to the tune of Rs. 9,23,300.20. After this settlement the defendants' account was credited by Rs. 3 lacs on account of the amount received under bank guarantee and for Rs. 43,082.20 on account of credit notes issued in favor of the defendants for the value of material returned by the defendants to the plaintiff thereby leaving balance of Rs. 5,80,217.90. Another credit note for Rs. 92,195.57 was issued in favor of the defendants by the plaintiff and thus on the date of suit a sum of Rs. 4,88,022.33 was due and payable for which a notice was also got sent to the defendants. The plaintiff has also claimed that since the transaction between the parties was commercial one, the defendants are liable to pay interest at the rate of 18% p.a. which up to 15.10.1989 works out to Rs. 73,163.23. Adding this amount to the principal, the plaintiff has claimed a decree for Rs. 5,61,185.56.

(2) Defendants were duly served with summons and copy of plaint on 16.10.1990 for 13.11.1990. Nobody put in appearance on their behalf. They were accordingly proceeded against ex parte on 13.2.1992 and the plaintiff was called upon to lead its ex parte evidence on affidavits.

(3) Shri M.M. Gupta, Company Secretary and Principal Officer of the plaintiff company in his affidavit stated that a fire broke out between the intervening night of 17th and 18th April, 1992 on 16th and 17th floor of Nirmal Tower, 26 Barakhamba Road, New Delhi wherein the registered and head office of the plaintiff-company was located. All statutory books, bills, and account books of the plaintiff were burnt except few ledgers or account books which were on the 9th fl(x)r. A report of the fire was lodged with the Police Station on 8.10.1992. Copy of the report has been proved on record as Ext. P-3 and copy of fire report issued by Fire Officer, Delhi Admn. has been proved as Ext. P-3A. Accordingly original file containing original agreement dated 6.11.1986 appointing the defendant as a dealer in the State of Maharashtra as well as original settlement arrived at in a meeting held on 15th, 16th and 17th November, 1988 are stated to have been destroyed except of a carbon copy of the minutes of the meeting held on 15th, 16th and 17th November, 1988 which it is stated was given to the Advocate at the time of the filing of the suit, which has been placed on record. A ledger containing the account of the defendants was also traced out as protected one.

(4) Another affidavit of J.K. Surana, Senior Finance Manager of the plaintiff company has been filed who has also supported the version of M.M. Gupta. In addition, Mr. Surana has deposed that after filing of the suit by the plaintiff against the defendant, more goods were returned by the defendant-company to the plaintiff at Delhi against which returned credit notes were issued by the plaintiff- company in favor of the defendants. After adjusting credit notes a sum of Rs. 2,89,604.63 alone is now due and payable by the defendants. Copy of the ledger account has been proved on record Ext. P-4 and P-5.

(5) R.K. Seth, Joint Manager, Marketing-Irrigation and Principal Officer of the plaintiff-company has also filed an affidavit who has deposed that he was present in the meeting on 15th, 16th and 17th November, 1988 at Delhi in which defendant No. I was represent by defendant No. 2 and the plaintiff was represented by the deponent (Seth) besides Shri N.K. Jain, Chief Executive. The deponent has proved on record the copy of the minutes of the discussion held on 15th, 16th and 17th November, 1988 (Ext. P-8), which according to him was duly signed by S.B. Darak, partner of defendant No. I. Deponent has also deposed in support of the entire case of the plaintiff and has also testified that after filing of the suit after giving credit to the defendants for the goods received only a sum of Rs. 2,89,604.63 was due and payable by the defendants besides interest.

(6) From the ex parte evidence I am satisfied that the defendant No. I was appointed as dealer in the State of Maharashtra by virtue of an agreement. The plaintiff on the order of defendant has been supplying goods and maintaining account. On 15th, 16th and 17th November, 1988 a settlement was arrived at in a meeting, minutes of which were recorded in Ext. P-8 duly signed for and on behalf of defendant No. I by defendant No. 2 in which the defendants acknowledged their liability to the plaintiff of Rs. 9,23,300.20. Statement of account also stands proved that after filing of the suit the defendants having been given more credit and only a sum of Rs. 2,89,604.63 is due and payable by the defendants besides interest of Rs. 73,163.23 at the rate of 18% p.a. which has been worked out up to 15.10.1989.

(7) In view of the ex parte evidence in passer parte decree for a sum of Rs. 2,89,604.63 plus Rs. 73,163.23 towards interest with full costs of the suit along with interest at the rate of 18% p.a. from the date of filing of the suit till payment on Rs. 2,89,602.63. Decree sheet be drawn accordingly.