M/S. Akums Drugs & ... vs M/S. Panjon Pharma Ltd.
2009 Latest Caselaw 3354 Del

*          HIGH COURT OF DELHI : NEW DELHI

+                      C.S. [OS] No.812 /2007

                                  Reserved on:    21st August, 2009

%                                 Decided on:      25th August, 2009

M/s. Akums Drugs & Pharmaceuticals Ltd.            ...Plaintiff
                   Through : Mr. P.K. Mittal, Adv.

                       Versus

M/s. Panjon Pharma Ltd.                                  ....Defendant
                    Through : None
Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                    No

2. To be referred to Reporter or not?                                 No

3. Whether the judgment should be reported                            No
   in the Digest?

MANMOHAN SINGH, J.

1. The plaintiff has filed the present suit against the defendant

for recovery of Rs.36,21,713/-. The case of the plaintiff, in brief is that

the plaintiff is a company incorporated under the Companies Act, 1956

having its registered and corporate office at 304, Mohan Place, L.S.C.,

Block-C, Saraswati Vihar, Delhi-34. Mr. D.C. Jain has been duly

authorized by the board of directors vide board resolution to sign, verify

and file the suit on behalf of the plaintiff company.

2. The plaintiff company is engaged in the business of

manufacture and distribution of a large variety of pharmaceutical

formulations in the form of tablets, capsules, dry syrups, liquid orals

and its distribution network is extended to all over India. The defendant

is a company incorporated under the Companies Act, 1956 having its

offices at 108-1A, Kanchan Sagar, 18, Old Palasia, AB Road, Indore,

M.P.-452018 and at PU-3, 15 Man House, 4th Floor, A.B. Road, Indore,

M.P. and also at C/o Dehra Tizara Investment Pvt. Ltd., A/876, Shastri

Nagar, Delhi-110052 where the pharmaceuticals goods were supplied by

the plaintiff company to the defendant company.

3. As per the plaint, the plaintiff company entered into an

agreement dated 31st January, 2006 with the defendant company for

manufacturing certain pharmaceutical preparations with the name of

"Panjon Pharma printed on such products as marketed by". The

defendant company had promised to make 10% advance against the

purchase orders and balance 90% by way of 30 days post dated cheques

payable at par at Delhi payable in favour of plaintiff company. The

plaintiff company started supplying pharmaceutical goods to the

plaintiff company at their Delhi address from March, 2006, as per the

written as well as the oral purchase orders placed by the defendant

company from time to time with the plaintiff company in their Delhi

office.

4. Initially for some time, the defendant company made

payments as per the terms. Thereafter the defendant company failed to

make payments. It is alleged that an amount of Rs.24,32,593/- is due

from the defendant company for supplies made by the plaintiff

company. As per agreement dated 31st January, 2006 the defendant

company were also required to bear the fees and expenses in respect

of obtaining product permission from the Licensing Authority and cost

of designing, developing, output, plate making, printing cylinders, etc.

The charges were payable at the rate of Rs.2000/- per product for fees

and expenses and Rs.5000/- per product for cylinder making, etc.

5. As per the requests of the defendant company, the plaintiff

company had taken approval for 26 products for which the defendant

company is required to pay an amount of Rs.1,82,000/-. In terms of

agreement dated 31st January, 2006 the cost of labels, cartons, bottles,

dies, punches and other material bearing name of the defendant

company is required to be borne by the defendant company. The

plaintiff company, therefore, raised a debit note No. Panjon/Pack/001

dated 17.01.2007 for Rs.1,29,363 covering the cost of packing

materials bearing name of the defendant company and lying in the

factory of the plaintiff company for destruction.

6. It is further alleged that the defendant company had

represented the plaintiff company that they are the registered dealer

under Sales Tax Act vide CST No.LC/26/221860/099 and requested the

plaintiff company to charge concessional rate of Sales Tax @ 1% as

against full rate of 10% applicable to unregistered dealer. The

defendant company further promised to issue form C for availing

concessional sales tax charged in bills. However, the defendant

company have failed to issue form "c" in respect of supplies made to the

defendant by the plaintiff company, and, therefore, liable to pay an

amount of Rs.3,25,729.

7. The plaintiff company allegedly kept on reminding the

defendant company to make payment of the over due sums through

telephonic calls, e-mails, letters and notice dated 22nd January, 2007.

8. Despite receipt of all these telephonic calls, e-mails,

letters/reminders issued by the plaintiff company, the defendants did not

deny their liability nor raised any grievance or issue or dispute or claim

and had, therefore, impliedly accepted their liability to make payment to

the plaintiff company,

9. As such, the defendant company is liable to pay to the

plaintiff company, an admitted amount of Rs.30,69,685/-.

10. Another legal notice dated 12.02.2007 was alsosent by Mr.

Arvind K. Jha, Advocate for an on behalf of the plaintiff company.

Despite receipt of the said notice, neither any payment was made nor

any "C" forms were submitted by defendant company to the plaintiff

company.

11. Thus the plaintiff prayed that a decree of Rs.36,21,713/-

along with interest @ 24% per annum from the date of suit till the date

of decree and till realisation be passed in favour of the plaintiff company

and against the defendant company.

12. Summons were served on the defendant through ordinary as

well as registered post on 29 th May, 2007. The defendant entered

appearance on 17th July, 2007 and filed the application for leave to

defend being I.A. No.5814/2008. However no rejoinder has been filed

by the defendant company after reply was filed by the plaintiff company.

the counsel Amarjit & Associates appearing on behalf of the defendant

company filed I.A. No. 1886/2009 under Section 151 CPC pleading that

no instructions are being received by it from the defendant company for

a considerable time and he is therefore discharged from the case vide

order dated 10th February, 2009.

13. Fresh notice was issued to the defendant company by

ordinary post, registered cover, approved courier and e-mail but it is

returned unserved, therefore, the defendant is proceeded ex-parte vide

order dated 14th July, 2009. Since there is no representation on behalf

of the defendant, the application for leave to defend filed by the

defendant is hereby dismissed. Under the provisions of Order XXXVII

CPC, if no application for leave to defend exists, the court has the

power to pronounce the judgment.

14. The plaintiff, in support of its case, has adduced the evidence

by way of affidavit and has filed the affidavit of Mr. D.C. Jain, the

Director of the plaintiff. Mr. D.C. Jain in his affidavit has fully

supported the case of the plaintiff.

15. The plaintiff has placed on record the agreement entered with

the defendant company dated 31.01.2006, purchase orders placed by the

defendant company, invoices raised by the plaintiff company upon the

defendant company, debit notes, notice issued by the plaintiff company

on 22nd January, 2007 and the notice dated 12 th February, 2007 issued

by the plaintiff company through his advocate.

16. On consideration of the averments made in the plaint/the

material on record and the affidavit of Mr. D.C. Jain which has gone

unrebutted and unchallenged, I see no reason to disbelieve the case of

the plaintiff. The case of the plaintiff can therefore be accepted on its

face value. It is supported by the documents and the amount of

Rs.36,21,713/- is found due to the plaintiff from the defendant. It is

established by the plaintiff that the purchase order has been placed by

the defendant company for supply of pharmaceutical products and the

goods were delivered by the plaintiff company to the defendant

company. The defendant company however failed to make the

payments due to the plaintiff company.

17. In view of the above discussion, the suit of the plaintiff is

decreed with costs for Rs.36,21,713/- (Rupees Thirty six lac twenty one

thousand seven hundred and thirteen only) against the defendants with

interest pendente lite and future @ 9 % per annum. Although the plaintiff

has claimed the interest @ 24% p.a., I feel that 24% p.a. is very

exorbitant and I am not inclined to grant the said rate of interest as

prayed. The decree sheet be drawn up accordingly.

The application as well as the suit is disposed of in the above

terms with cost.

MANMOHAN SINGH, J

AUGUST 25, 2009 SD