Delhi High Court
General Rubber Works & Anr. vs Continental Carbon India Ltd. on 16 December, 2008
Author: Mukul Mudgal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DATE OF DECISION: 16th December, 2008
+21.
RFA(OS) 90/2007 & CM Nos. 17177-78/2007
GENERAL RUBBER WORKS & ANR. ..... Appellants
Through: Mr. K. Rajeev, Advocate.
versus
CONTINENTAL CARBON INDIA LTD. ..... Respondent
Through: Mr. Arijit Mazumdar, Advocate.
+22. RFA(OS) 91/2007 & CM Nos. 17183-84/2007
THIRUVILWAMALA RUBBERS & ANR. ..... Appellants
Through: Mr. K. Rajeev, Advocate.
versus
CONTINENTAL CARBON INDIA LTD. ..... Respondent
Through: Mr. Arijit Mazumdar, Advocate.
AND
+23. RFA(OS) 92/2007 & CM Nos. 17192-93/2007
GENERAL RUBBER PRODUCTS ..... Appellant
Through: Mr. K. Rajeev, Advocate.
versus
CONTINENTAL CARBON INDIA LTD. ..... Respondent
Through: Mr. Arijit Mazumdar, Advocate.
CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE MANMOHAN
RFA No. 90-92 of 2007 Page 1 of 5
1. Whether Reporters of local papers may be allowed to see the judgment? No.
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be reported in the digest? No.
JUDGMENT
MUKUL MUDGAL, J: (ORAL)
1. With the consent of the parties, these appeals are taken up for final
hearing.
2. By this common order we are disposing of the aforementioned appeals
arising out of the impugned order dated 30th July, 2007 passed by learned
Single Judge of this Court.
3. The facts of the case briefly stated are as follows:-
A. The appellants are stated to have been buying Carbon
Black of various qualities being manufactured by the
respondents. The goods were also supplied by the respondents
on credit. The supplies were always accepted and there is no
issue of quality.
B. The dispute arose between the parties on account of the
fact that cheques issued by the appellants from time to time, as
set out in Schedule „A‟ to the plaint, amounting to Rs. 31,
25,398/- were dishonoured for insufficient funds.
C. The respondents served a legal notice and instituted
proceedings under Section 138 of the Negotiable Instruments
Act, 1881 (in short „NI Act‟).
D. Thereafter on 26th July, 2004, a letter was issued by the
appellants and post-dated cheques in the sum of Rs. 24,60,000/-
were issued in partial discharge of the liability.
E. Even these cheques, details of which are set out in
Schedule „B‟, were returned for insufficient funds and similarly
after issuance of notice, proceedings under Section 138 of the
NI Act were initiated.
F. That the Respondent/Plaintiff filed CS(OS) No. 443/2006
under Order XXXVII of the CPC claiming a total amount of
Rs. 30,62,949.00 with interest from the appellant in RFA No.
90/2007, RFA No. 91/2007 and in RFA No. 92/2007. The suit
was filed claiming for a sum of Rs. 30, 62,949/- plus a sum of
Rs. 1, 13,050/- towards „C‟ Forms not supplied.
4. The learned Single Judge has noted that during the pendency of the
criminal proceedings, the appellants defendants has admitted the liability
towards plaintiff for a sum of Rs. 25,00,000/- but disputed their liability to
the extent of Rs. 5,62,949/-. The learned Single Judge has passed a decree
in favour of the respondents upon service of the summons on
defendants/appellants in April, 2007 but no address for service having been
filed within the period of ten days or even upto date. The learned Single
Judge has passed the impugned judgment decreeing the suit under Order
XXXVII of the CPC for a sum of Rs. 30, 62,949/- along with pendente lite
and future interest @ 15% per annum.
5. In our view and as per the admitted position, the disputes arose
between the parties on account of the fact that the cheques issued as set out
in Schedule-A to the plaint filed under Order XXXVII of the Civil
Procedure of Code (hereinafter to be referred as „CPC‟) by the
respondents/defendants amounting to Rs. 31, 25,398/- were dishonoured. It
is stated by learned counsel for the appellants that some of the cheques were
stale though the learned Single Judge‟s order referred that the cheques were
dishonoured for "insufficient funds", a finding which is not disputed.
6. Firstly, the appellants‟ case before the learned Single Judge was that
some time may be given to file written statement as a vakalatnama had been
filed. The proviso to Order XXXVII Rule 2 sub-Rule (3) of the CPC clearly
stipulates that unless an appearance is entered, as prescribed under Order
XXXVII of the CPC, a decree shall follow. The learned Single Judge relied
upon that provision and granted the decree in favour of Plaintiff/Respondent.
De hors the above plea in order to ascertain the bona fides of the appellants,
we asked him that the Court would consider grant of limited leave to defend
to the extent of Rs. 30,62,949/- subject to deposit of Rs. 25,00,000/-. The
defendants/appellants have expressed inability to do so. Therefore, we find
no reason to interfere with the impugned judgment of the learned Single
Judge.
7. The appeals stand dismissed accordingly.
MUKUL MUDGAL, J
MANMOHAN, J
DECEMBER 16, 2008
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