Kasturi And Sons Limited vs Ultimate Advertising And ...
2006 Latest Caselaw 1001 Del

JUDGMENT

Manju Goel, J.

1. This suit is for recovery of Rs. 85,37,947.50 towards charges due from the defendants on account of advertisements published by the plaintiff on behalf of the defendants The plaintiff is the proprietor of 'The Hindu'. The defendant No. 1 is a partnership firm of which the defendant Nos. 2, 3 & 4 are the partners. The facts alleged by the plaintiff are as under:

2. The defendant firm is an advertising concern and had been dealing with the plaintiff for advertising in the newspaper The Hindu. The defendants have been sending advertisements of their clients and also of their own to the plaintiff for publication on a clear understanding that the defendants would be making the payment of the advertisements at the then prevailing rate. The dealings between the plaintiff and the defendants were of principal to principal basis. As per the bills raised by the plaintiff for the advertisements carried by the plaintiff's newspaper a sum of Rs. 85,38,119.50 became due over the period of December, 2000 to January, 2001. The details of the bills raised and payments received are given in annexure-A to the plaint. On the basis of the details at the end of 31st March, 2001 the defendants had to pay a sum of Rs. 85,38,119.50. The entries in the accounts were made in the ordinary course of business and the net amount arrived at is correct as per the accounts maintained by the plaintiff. The defendants issued a cheque for Rs. 6,46,255/- dated 30.11.2000 drawn on the Bank of India, Faridabad in part payment of the dues but when presented for encashment the same was returned dishonoured and a separate action under Section 138 of the Negotiable Instruments Act has been initiated against the defendant-firm. All the cash payments made by the defendants have been included in the statement of account and is reflected in annexure-A. The plaintiff sent a number of letters demanding payments. A legal notice dated 19.12.2000 for the dishonoured cheque and a legal notice dated 29.1.2002 for payment of the dues in the suit were issued. These letters were duly served upon the defendants. The defendants chose not to reply. Nor did the defendants pay any amount. The defendants are also liable to make payment of interest @18% per annum as per the trade usage and custom and as per the terms and conditions of the contract printed on the bills raised by the plaintiff. The claim is for Rs. 85,35,747.50 towards the charges apart from the notice charges amounting to Rs. 2,200/- making a total of Rs. 85,37,947.50.

3. The plaint was presented on 29th November, 2003 and on removal of objection on 5.12.2003 summons were ordered. Summons were returned unserved with a remark that the firm had closed down and defendant Nos.1 to 4 have shifted from the known address. They were served under Order V Rule 20 CPC by publication of court notice in the Statesman (New Delhi) and by affixation at their last known addresses as well as by affixation on the notice board of the Court. The defendants, however, did not appear and were proceeded ex parte. By way of evidence the plaintiff produced the affidavit of S. Ramunujam, General Attorney of the plaintiff. The power of attorney in favor of Shri S. Ramunujam is Ex.PW-1/1. The affidavit proves all the facts alleged in the plaint. Each entry in annexure to the plaint is substantiated by producing the relevant bill. These are Ex.PW-1/3 to Ex.PW-1/82. These bills with deduction of the amount received make a total of Rs. 85,35,747.50.

4. The plaintiff has not produced any document to prove the rate of interest agreed between the parties. The plaintiff has produced photocopies of the bills. It has not produced the reverse side of the bills where the alleged term of interest was recorded. Nor has the plaintiff paid any court fee for the interest prior to the institution of the suit. Plaintiff's claim for interest before the institution of the suit cannot be considered. Plaintiff, however, is entitled to interest from the date of presentation of the suit. The provisions governing the grant of interest are available in Section 34 of the Civil Procedure Code. As per this Section from the date of presentation of the suit till the date of judgment interest can be granted at such rate as the Court deems reasonable to be paid on the principal sum adjudged. From the date of decree the interest payable, in cases where the transaction in suit is commercial, at the rate adjudged not higher than that on which money is lent by nationalised banks in commercial transactions. I think it will be appropriate to grant the plaintiff interest @ 12% per annum from the date of presentation of the suit and @ 9% per annum from the date of decree till realisation.

5. The plaintiff has no legal claim on the cost incurred for giving the notice of demand.

6. In view of the above the suit of the plaintiff is decreed for a sum of Rs. 85,35,747.50 with interest @ 12% per annum from the date of presentation of the suit till the date of decree an @9% per annum from the date of decree till the decretal amount is realised.

7. Decree sheet be drawn up accordingly.