Tecron Beverage Engineering vs Kettner Gmbh & Another
2000 Latest Caselaw 964 Del

ORDER

K.S. Gupta, J.

1. Plaintiff filed this application under Order xxxvII, Rule 2(3) CPC alleging that defendants admit that they were served with summons on 25th February 1999. The power of attorney executed by Ms. Elizabeth Mathews as attorney of defendants on 18th March 1999 in favour of Sh. Joseph Pookkatt, Advocate, was filed on or after 23rd March 1999. There is no power of attorney placed on the file in favour of Sh. Rajiv Bansal, advocate through whom appearance was entered into by the defendants on 23rd March 1999. Authorisation in favour of said Ms. Elizabeth Mathew has not been filed by defendants. No application has been moved seeking condensation of delay in entering appearance by the defendants. It is further alleged that plaintiff had prepared three sets of the copies of plaint and documents and each set was tied with double knot with tags in machine punched holes. Each set was thereafter kept in a cloth lined envelope and weighed and additional postage stamps paid thereon. Thereafter, all the three sets were submitted by the counsel with process fee from in the Registry for being sent to defendants and their solicitors. In the memo of appearance filed on behalf of defendants it has been deceptively alleged that the defendants received copy of plaint without annexures. It is further stated that plaintiff's counsel sent a notice to produce for inspection the said three sets of registered covers and papers received on said Sh. Rajiv Bansal but he has failed to give inspection thereof. Copies of the said notice, registration receipt dated 3rd May 1999 and AD showing delivery of the said notice on 5th May 1999, have been filed by way of Annexures A, B and C respectively alongwith the application. It is claimed that copy of plaint was received alongwith annexures, by the defendants. It was prayed that suit be decreed against the defendants under Rule 2(3) of Order xxxvII CPC with costs. Affidavit of Atul Sarin, proprietor of plaintiff has also been filed alongwith the application.

2. Before adverting to the reply filed by defendants to the said application I would like to refer to some of the orders passed in the case. On suit being filed under Order xxxvII CPC, in terms of the order dated 11th ,1999 summons in Form 4 in Appendix B CPC were ordered to be issued to the defendants returnable on 19th May 1999 by the Joint Registrar. Order dated 19th May 1999 on which date the proprietor of plaintiff appeared in person, notices that lawyers were not appearing in court on that day and the case was, therefore, postponed to 6th August, 1999 with the observation that if any process has been received back unsaved/unexecuted the same will be issued again for that date. In the meantime on 25th May 1999 in the present I.A. being No. 5392/99 summons for judgment was ordered to be issued for the date already fixed in the case on filing PF within a week by the Joint Registrar. It seems that O.A.13/99 was filed by the plaintiff against the said order dated 25th May, 1999 and this O.A. was disposed of by the order dated 16th July 1999 observing as under:-

"This is an appeal filed against the order of the Joint Registrar dated 25th May 1999, by which the learned Joint Registrar disposed of I.A.5392/99. The grievance of the appellant is that the prayer made by the applicant in I.A.5392/99 was that the suit be decreed under Order xxxvII Rule 2(3) CPC on account of default of the defendant in entering appearance. It appears from the order dated 25th May 1999 that the Joint Registrar treated the application as an application for issuance of summons for judgment and passed the impugned order. The prayer in the application was for the suit being decreed on account of the alleged default in entering appearance. There is an error apparent on the face of the record. Accordingly, the impugned order dated 25th May 1999 is hereby set aside."

3. Simultaneously, notice of I.A. 5392/99 was ordered to be issued to the defendants through counsel for 15th September 1999. On 6th August 1999 defendants were allowed two weeks time to file reply. In the meantime summons for judgment came to be issued to the defendants. Order dated 15th September 1999 on which date Sh. Rajiv Nayyar, Senior Advocate alongwith Sh. Ashish Dholakia appeared for defendants, notices that I.A.9106/99 for leave to defend suit and I.A.9115/99 seeking condensation of delay in filing I.A.9106/99 have been filed on behalf of defendants and both these applications were ordered to be taken up for nsideration after the disposal of aforesaid I.A.5392/99.

4. In the reply to I.A.5392/99 it is, interalia, alleged by the defendants that suit is not maintainable against them under Order xxxvII CPC. Only copy of the plaint was received by defendants on 25th February 1999 without annexures which were received on a later date by them. It is stated that after the defendants were served on 25th February 1999 they contacted their Indian solicitors i.e. M/s. fPookkat & Associates in Bangalore who managed to contact Sh. Joseph Pookkat, advocate, based in Delhi to represent the defendants in the suit. Sh. Rajiv Bansal, an associate of Sh. Joseph Pookkat entered appearance on 23rd March 1999. It is further stated that general power of attorney in favour of Ms. Elizabeth Mathew could not be executed earlier since in Germany such documents are not notarised immediately on presentation. Appointment is required to be taken with the Notary who after due verification of the documents endorses the same on the appointed date. Delay was thus caused on this account in obtaining general power of attorney in favour of said Ms. Elizabeth Mathews. It is alleged that defendants being resident of Germany could not understand the implication of the suit filed against them by a party with whom they had no contact and it was for this reason that they could not enter appearance within ten days of the receipt of copy of plaint. Copy of the application for summons for judgment was served on said Sh. Rajiv Bansal who represented the defendants on 23rd March 1999. However, in the meantime defendants were advised by said Khaitan & Associates to change their advocate and appoint M/s. Khaitan & Co. as their advocates. Therefore, the service of summons for judgment on said Sh. Rajiv Bansal was of no consequence. Defendants were served with the copy of application for summons for judgment in Germany. Again lack of understanding of Indian laws prevented the defendants from taking appropriate steps in the matter. It was only when they approached Khaitan & Co. that they were advised to file application for leave to defend the suit alongwith application seeking condensation of delay. It is further stated that the defendants had only taken over certain assets of M/s. Max Kettender GmbH with which the plaintiff had a contractual agreement and not the liabilities thereof. It is alleged that there has been a complete satisfaction of the plaintiff's alleged claim which is duly acknowledged by the plaintiff. Vakalatnama in favour of M/s. Khaitan & Co. has been signed by a duly authorised person on behalf of the defendants. Authority in favour of Ms. Elizabeth Mathew has been filed alongwith the application for grant of leave to defend the suit. The defendants received the documents only at a later stage and this fact is admitted by the plaintiff in Para 16 wherein delivery of documents is shown to have been effected only on 5th May 1999. Reply is supported by the affidavit of Ms. Elizabeth Mathew dated 1st February 2000.

5. I have heard Sh. S.C. Anand for plaintiff and Sh. Rajiv Nayyar for defendants.

6. Admittedly memo of appearance filed on behalf of both the defendants on 23rd March 1999, was filed by Sh. Rajiv Bansal, advocate. Indisputably, there is no vakalatnama placed on file executed in favour of Sh. Bansal by the defendants. In said memo of appearance dated 23rd March 1999 it is admitted by the defendants that they were served with copy of plaint on 25th February 1999 at Germany. However, it is alleged therein that the copy of plaint was received without annexures. It may be noticed that in the reply filed to application the fendants admit the receipt of copy of annexures later on but the date of receipt thereof has not been disclosed. Needless to repeat that in the application plaintiff claims that the copy of annexures was also received alongwith plaint by the defendants on 25th February 1999. In response to aforesaid notice dated 3rd May 1999 to produce three sets of registered covers and he papers received, sent by the plaintiff's counsel to said Sh. Rajiv Bansal the defendants have not produced for inspection registered covers and the papers received by them. Also taking note of the office report dated 18th February 1999 there is reasonable ground to believe that copy of annexures was also received alongwith copy of plaint by the defendants on 25th February, 1999 as alleged by the plaintiff company was that in the absence of application seeking condensation of delay in entering appearance by the defendants as also vakalatnama in favour of Sh. Rajiv Bansal through whom the defendants entered appearance on 23rd March, 1999, the defendants will be deemed to have admitted the allegations made in the plaint and the plaintiff is, therefore, entitled to a decree for the suit amount straightaway under sub rule (3) of Rule 2 of Order xxxvII CPC. Since the defendants were duly served on 25th February, 1999 they should have entered appearance within 10 days period expiring on 7th March, 2000. At this juncture reference to the allegations made in the plaint and also some of the documents filed there with has become necessary.

7. It is, interalia, alleged in the plaint that Kettender GmbH & Co. was earlier named - Max Kettner GmbH & Co. KG registered as a company in Germany according to German laws and on management thereof being taken over by defendant No.2 it was renamed as Kettner GmbH (defendant No.1). crones AG, defendant No.2 is also a company registered in Germany in accordance with German laws. It is further alleged that the plaintiff had acted as Agents of said Max Kettner GmbH & Co. KG having the same factory address as that of defendant No.1 and it had secured an order for supply of machineries and equipments from Balaji Distilleries Ltd. Chennai, India vide contract No. C-106204 to be supplied by said Max Kettner GmbH & Co.KG. As a sequel to the said contract a letter of credit being No. IFC/UD/139/97 dated 6th November 1997 was opened by Industrial Finance Corporation of India Ltd, India, in favour of said Max Kettner GmbH & Co.KG under instructions from said Balaji Distilleries Ltd. It is pleaded that for the services rendered and expenses incurred by the plaintiff it was entitled to a total payment from said Max Kettner GmbH & Co.KG of DM 283,974 as soon as the contracted goods were shipped and payment received by them against said letter of credit. It is stated that after the taking over of management by defendant No.2 of said Max Kettner GmbH & Co.KG it started functioning in the name of defendant No.1 at the same factory address. Defendant No.1 by the letter dated 21st December 1997 had desired that the said letter of credit and contract be amended in its favour. At considerable expense and efforts the plaintiff got the said letter of credit and contract amended in favour of defendant No.1 on 23rd January 1998. It is alleged that in the meanwhile the plaintiff desired that the payment of aforesaid DM 283,974 may be partly made to M/s. Sarin Global Private Limited to the extent of DM 150,000/- and the balance DM 133,974/- to the plaintiff directly and this was agreed to by defendant No.1 vide its letter dated 18th February 1998.

It is claimed that the contracted goods were shipped and letter of credit encashed on 31st May 1998 and the plaintiff thus became entitled to the payment of said amount on 31st May 1998. M/s. Sarin Global Private Limited were paid DM 150,000 on 16th November 1998 without interest and they accepted that amount in full and final settlement on their part and also issued a receipt. However, this payment does not in any way effect the payment of DM 133,974/- due to the plaintiff. Despite repeated requests the defendants have failed to pay that amount to the plaintiff. It is alleged that plaintiff is entitled to interest on the said amount from 1st June 1998 to 31st January 1999 @ 18% p.a. which comes to German Deutsche Marks 16,076.88 pfennig. Total amount including interest for which the suit has been filed is DM1,50,050.88 equivalent to Rs. 36,82,248.80 converted at the exchange as prevailing on 30th January 1999, against the defendants.

8. Copy of the letter dated 21st December 1997 referred to in Para 10 of the plaint, is placed at Page No.3 of Part III file. In fact it is a Fax message on the letterhead of Kettner, Ortmann + Herbst regarding change in L/C of Balaji Distilleries, Madras, addressed to Tecron Beverage Engineering, plaintiff through Sh. Subhash Sarin and one Sh. Roland Schlenker and relevant portions thereof reads as under:-

     "The take-over of Kettner Rosenhelm as a manufacturing plant  has  now been finalised by Krones and the company known to you as  Max  Kettner  Abfull and 	 GmbH is not  existing  any    more. 
 

     The new name of the company now is
 Kettner GmbH Russere Munchenerstrabe 104D-83026 Rosenheim

 (The new Trading Register Number is HRB 11001)
Tel: 0049 8031.4040.

 

The new CEO is Mr. Alois Muller
 

     The new Project Manager for the project management of this  order is Mr. Rolf Quade." 
 

9.   Alongwith  the said copy of letter/fax message a copy of letter  dated 21st  December  1997  on the letterhead of said Kettner  Rosen helm
  +  Herbst addressed to Bayerische Vereins bank AG / Krevund stadts parkasse Rosenheim has also been filed. Relevant portion of this letter reads thus:- 
  

"The equipment manufactured at Kettner GmbH is identical as to the equipment originally manufactured and offered to Balaji by Max Kettner Abfull and Verpackungs anlagen GmbH and in order to be able to proceed with the manufacturing of the equipment following will be necessary.

1) Change of the L/C details in respect to receiver of the L/C (kettner GmbH Rosenheim)

2) Change of the L/C details in respect to the Kettner GmbH Bank Connection.

3) A new order letter is required from Balaji (see attached copy which kindly pass on to Balaji with the request to send this letter to me in the philippines).

4) Scope of supply, execution of the machinery, commercial conditions, delivery time etc all remain unchanged.

5) Will ensure a new Order Confirmation and Proforma invoices from Kettner GmbH Rosenheim are established for Balaji.

As soon as the L/C and Down payment on one of the above accounts has been received Kettner GmbH will establish the required new 10% Bank Guarantee start the manufacturing and guarantee delivery ex-works 5 months after receipt of L/C incl. down payment."

10. Yet another letter dated 18th February 1998 referred to in Para 12 of the plaint on the letterhead of said Kettner Ortmann + Herbst addressed to the plaintiff is placed at Page 1 on the said file. Omitting the immaterial portion the same reads as under:-

     "On behalf of the New Management we are pleased to re-confirm  as      under:- 
 

     A total amount of DM 283.974 will be at your disposal. 
 

     The above amount shall be remitted only once the full payment has  been collected from the above customer. 
 

     As  desired by you- we shall remit a sum of DM 150,000- to  Sarin  Global Private Limited and the advance of DM 133,974- to,  TECRON   Beverage  Engineering  which shall total a sum of DM  283,974  to settle  your entire amount on General arrangements of  Commission    against the above contract." 
 

11.  Towards  the beginning in this letter the number of contract is  noted as C-106204 as mentioned in Para No.6 of the plaint. 
 

12. From the aforesaid letters/fax messages it may be noticed that those were sent by Kettner Ortmann + Herbst, a concern, obviously different from aforementioned Max Kettner GmbH & Co.KG as also Kettner GmbH, defendant No.1. At the cost of repetition, it may be noted that in the reply filed by defendants it is alleged that defendant No.2 had only taken over certain assets of said Max Kettner GmbH & Co.KG and not the liabilities thereof.

Allegations referred to above made in the plaint would reveal that the claim of plaintiff for the suit amount is primarily based on the aforesaid letter/fax message dated 18th February 1998 issued by Kettner Ortmann + Herbst which is not one of the defendants in this case. Thus, taking the allegations as made in the plaint to be admitted by the defendants within the meaning of sub rule (3) of Rule 2 of Order xxxvII CPC, the plaint does not disclose any cause of action against the defendants unless the plaintiff further establishes that the defendants are, bound by what is stated in the said, letter/fax message dated 18th February 1998. By way of passing remark it may be mentioned that in the affidavit of Ms. Elizabeth Mathew filed alongwith the application for leave to contest the suit being I.A.9106/99, it is averred that there was a company by the name of said M/s.Kettner Ortmann + Herbst in Germany which has since been liquidated and the defendants have no relationship with that company. Therefore, at this stage a decree for the suit amount cannot be passed against the defendants and the application under disposal deserves to be dismissed.

13. Consequently, the application is dismissed.