Sucheta Engineering Co. And Anr. vs Apitron India And Ors.
1995 Latest Caselaw 885 Del

JUDGMENT

S.K. Mahajan, J.

(1) The plaintiff has filed this suit against the defendants for the recovery of Rs-1,88,943.42 paise on the allegations that the plaintiff No. 2 being the sole proprietor of plaintiff No. I had dealings with the defendants I to3 and had been supplying to the said defendants pressure feed type bleaching doser chlorinetor, chlorine tablets, chlorine liquid and chlorine testing kit and discount at the rates of 25% and 30% were being given as per agreement arrived at between the parties. It is stated that between the period 24th September, 1986 to 21st August, 1987, the plaintiffs had supplied goods of the total value of Rs. 64,279.50 paise to the defendants vide bills mentioned in paragraph 3 of the plaint. It is also stated that besides the suit amount, the plaintiff had also advanced a total sum of Rs. 41,900.00 to the defendants by way of cash or traveller cheques to enable the defendants to submit tenders with the authorities on behalf of the plaintiffs. It is further stated that neither the amount of Rs. 64,279.50 paise being the value of the goods nor the sum of Rs. 41,900.00 which had been advanced in cash or by traveller cheques by the plaintiff to the defendants, has been paid by the defendants. Plaintiffs have, therefore, claimed this amount along with interest at the rate of 18% per annum which, according to them, was the market rate of interest and the plaintiffs are entitled to claim the same as per market usage and custom.

(2) The defendant No. 4 is a transport company through whom the goods were sent. It has not been disclosed as to how the said defendant is a necessary party and on an application having been made by the said defendant, this Court vide an order dated 23rd March, 1992, had deleted the name of defendant No. 4 from the array of defendants.

(3) Defendants 1 to 3, even after service, did not appear and by order dated 23rd September, 1992, they were proceeded ex parte. Ex parte evidence has been led by means of affidavit and documents Ex.PW-l/l to PW-1 /29 have been proved on record.

(4) The agreement between the parties is dated 25th October, 1986 and is Ex.PW-l/l. By this agreement, the defendants were allowed discount at the rate of 25% on certain items mentioned therein and on other items mentioned in the said agreement a discount at the rate of 30% was allowed to the defendants. Affidavit of Shri Sushil Kumar Gandhi, sole proprietor of plaintiff No. 1, has been filed and he states that he is the sole proprietor of plaintiff No. I firm. Goods were supplied to the defendants vide bills Ex.PW-l /2 to Ex.PW-l /8 and they were sent through the transport company vide G.Rs which are Ex.PW-l /9 to PW-I/14. The total value of the bills is Rs. 64,279.50 paise. It is stated that besides the amount which is due under the bills the defendants had also taken money in cash and by way of traveller cheques. The voucher for payment of the amount in cash and trailer cheques are Ex.PW-1/15 to Ex.PW-1/20. The statement of account is Ex.PW-l/21. A perusal of the vouchers shows that a sum of Rs. 31,900.00 was paid in cash by the plaintiffs to the defendants. There is no voucher about the travellers cheques amount of which is ail edged to have been paid by the plaintiffs to the defendants. On the basis of the evidence on record, I am satisfied that a sum of Rs. 96,179.50 paise is due from the defendants to the plaintiffs.

(5) The plaintiffs have claimed interest on this amount at the rate of 18% p.a. from the date on which the amount had become due till the date of filing of the suit. Under Section 3 of the Interest Act, a person will be entitled to interest in case a written notice has been given to the person who is liable to pay the amount. Interest will be claimed up to the date of institution of the proceedings in case the amount was not paid. In this case, though various letters have been written by the plaintiffs to the defendants, however, in none of the letters any claim for interest has been made. Even the bills do not mention that in case of non-payment of the amount during a particular time the plaintiffs will be entitled to claim interest. In the absence of any claim of interest by the plaintiffs as provided in the Section Section 3 of the Interest Act, I am not inclined to award any interest up to the date of filing of the suit.

(6) I, accordingly, pass a decree for Rs.96,179.50 paise with costs of the suit in favor of the plaintiffs and against the defendants 1 to 3 The plaintiffs shall also be entitled to interest at the rate of 12% p.a. from the date of filing of the suit till the date of realisation on the decretal amount.