Sh. P.P. Khurana vs M/S J.K. Synthetics & Anr.
2001 Latest Caselaw 476 Del

ORDER

J.D. Kapoor, J.

1. This is a suit for recovery of Rs.11,54,768.75 filed under the provision of Order 37 CPC.

2. The plaintiff is running a business of manufacturing of electrical wires and cables in the name and style of M/s Prakash Electrical Works. The defendant is also a limited company having its office in New Delhi and Rajasthan. The defendant through its New Delhi office approached the plaintiff and placed order for supply of copper and aluminium cables vide purchase order dated 7.3.96. Pursuant to this the plaintiff booked the goods for "Self" to be delivered to defendant No.2 through Vishal Goods Carriers from Delhi who supplied the goods to the defendant No.2 at Jhalawar, Rajasthan address, against Bill Nos 138, 139, 140, 141, 143, 145 and 149 and the same were delivered without G.R. by M/s Vishal Goods Carriers.

3. In terms of the Hundies provided, that the bill amount was to be paid within 45 days failing which the defendant was liable to pay interest @ 24 per cent per annum in terms of the supplies made by the plaintiff. However, the plaintiff received the payment in respect of only three bills bearing Nos.138, 139 and 140. The details of bills of which the goods were delivered to the defendants are given in para 5 of the plaint.

4. Since transaction between the parties was based upon the Hundies negotiated through the State Bank of India, South Patel Nagar, Branch, New Delhi the documents were sent through Bank to be delivered through the bankers of the defendant i.e. Bank of Rajasthan, Jhalawar. Inspite of reminders the payment was to received in respect of the remaining bills. When the Hundies were not honoured the plaintiff sent reminders after reminders. Being left with no option the plaintiff also wrote a letter dated 8.3.97 to the Director of defendant company bringing to its notice the fact that their bills have not been cleared. Ultimately the plaintiff sent a legal notice through his counsel but it also did not bear any fruit. Hence this suit.

5. Summons of the suit under Order 37 were issued through ordinary process as well as registered post initially at the Division office of Delhi and since that office was reported to have been closed the summons were again sent to the defendant at the Kanpur address. The summons were duly served on 3rd April, 2000 but the defendant entered into appearance on 22nd June 2000 whereas as per provision of Order 37 Rule 3(1) it was required to enter into an appearance within ten days of the service of the summons.

6. As per Rule 2(3) of the Order 37 CPC the defendant can not be allowed to defend the suit unless he enters an appearance within ten days and in default of his entering an appearance as prescribed under Rule 2 the allegation in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to decree for any sum, not exceeding the sum specified, if any, after the date of the decree and such sum for costs as may be determined by the Court from time to time by rules made in that behalf and such decree may be executed.

7. It is apparent that defendant failed to put in appearance within the prescribed period of ten days. The allegations in the plaint have to be deemed to be admitted. As a result the suit is decreed with future interest at the rate of 18 per cent till date.

8. Suit as well as IA stand disposed of.