Pioneer Publicity Corporation vs Bharat Marketing
2009 Latest Caselaw 67 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CS(OS) No. 447/2005 & IA No.12227/2006

%                    Date of Decision: January 13, 2009


# Pioneer Publicity Corp.                               ..... Plaintiff

!                    Through: Mr. Hari Kishan, Advocate

                              Versus

$ Bharat Marketing
                                                  .....Defendant
^                    Through: Mr. Murari Kumar, Advocate


CORAM:

HON'BLE MR. JUSTICE S.N. AGGARWAL

1.

Whether reporters of Local paper may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether the judgment should be reported in the Digest?

S.N.AGGARWAL, J (ORAL) The plaintiff has filed this suit against the defendant for

recovery of Rs.55,59,132/- under Order XXXVII CPC.

2 In response to summons of the suit, the defendant has filed its

leave to defend application seeking unconditional leave to defend

the present suit.

3 Arguments on the leave to defend application have been

heard.

4 The basis of the plaintiff's claim against the defendant in the

present suit is admission of liability by the defendant in its books of

account for the period from 01.04.2003 to 29.01.2004 sent to the

plaintiff. The ledger account of the plaintiff maintained by the

defendant company in its regular course of business is filed along

with the plaint and is available at pages 16-A to 16-R of Part III file.

A perusal of the said ledger account maintained by the defendant in

its regular course of business reveals that the defendant has

admitted its liability towards the plaintiff to the tune of

Rs.47,11,134.35 paise as on 29.01.2004. The defendant in its leave

to defend application has taken a plea that the amount of

Rs.47,11,134.35 paise is shown due and payable to the plaintiff

because of inadvertence and according to the defendant, the said

acknowledgment of liability does not confer any obligation upon the

defendant for making payment of the said amount to the plaintiff.

The defendant has also taken a plea in its leave to defend

application that the defendant was working as a commission agent

between M/s Modi Rubber Ltd. and Gujarat Guardian Ltd on the one

hand and the plaintiff on the other hand and was entitled to get the

agency commission of 10% to 15% as a mediator agent between

the plaintiff and the said two companies.

5 Mr. Murari Kumar learned counsel appearing on behalf of the

defendant has relied upon the following three judgments in support

of his arguments on leave to defend application:-

(i) Mrs. Raj Duggal Vs. Ramesh Kumar Bansal AIR 1990 Supreme Court 2218;

(ii) S.C. Rastogi Vs. Renu Kalra & Another 127 (2006) Delhi Law Times 793 and

(iii)M/s Mechalec Engineers & Manufacturers Vs. M/s Basic Equipment Corporation AIR 1977 Supreme Court 577.

6 On the strength of the above three judgments, learned

counsel appearing on behalf of the defendant has argued that the

plea raised by the defendant in its leave to defend application

raises a triable issue and the defendant is entitled to unconditional

leave to defend the present suit.

7 I have carefully considered the submissions made by the

learned counsel for the defendant and have also perused the above

judgments referred and relied upon by him.

8 On being repeatedly asked from the counsel for the defendant

about the circumstances of alleged inadvertence in admitting its

liability to the tune of Rs.47,11,134.35 paise in its books of account

for the period from 01.04.2003 to 29.01.2004, learned counsel

could not tell any such circumstance for the same. The leave to

defend application does not contain even a whisper as to what was

that inadvertence because of which the liability to the tune of

Rs.47,11,134.35 paise was admitted by the defendant in its books

of account. The plea raised by the defendant that the said liability

was admitted on account of some inadvertence appears to be an

afterthought and does not require any trial. The case of the plaintiff

for recovery against the defendant is based upon admission of

liability made by the defendant in its books of account as stated

above. The defendant cannot escape its liability to pay the

admitted amount to the plaintiff. It may be noted that the

defendant is a company incorporated under the Companies Act and

is assisted by experts in maintaining the accounts. It is

unbelievable that the defendant company, in the normal course of

its business, would admit its liability because of some inadvertence

or oversight. Had there been any such inadvertence, it was

obligatory upon the defendant to explain the said inadvertence in

its leave to defend application so that the plaintiff could have

appropriately responded to the same. In the absence of any such

explanation for the alleged inadvertence, the plaintiff is entitled to

a decree for the suit amount.

9 The learned counsel appearing on behalf of the defendant has

also argued that prior to filing of this suit, the plaintiff had claimed

interest @ 24% per annum whereas the plaintiff itself has reduced

the claim for interest from 24% per annum to 12% per annum at

the time of filing of the present suit. This plea raised by the

defendant regarding rate of interest also does not require any trial.

The transaction between the parties was admittedly of commercial

nature. The claim of interest by the plaintiff @ 12% per annum

appears to be reasonable. The suit amount claimed by the plaintiff

against the defendant includes the interest up to the date of filing

of the suit. The plaintiff is entitled to a decree for the entire suit

amount with pendente lite and future interest @ 12% per annum.

All the defenses raised by the defendant in its leave to defend

application are moonshine and afterthought and do not require any

trial. The above referred judgments relied upon by the counsel for

the defendant are not applicable to the facts of this case.

10 In view of the above, the leave to defend application filed by

the defendant is dismissed and the suit of the plaintiff is decreed. A

decree of Rs.55,59,132/- with costs and pendente lite and future

interest @ 12% per annum is passed in favour of the plaintiff and

against the defendant under Order XXXVII CPC. Decree sheet be

prepared accordingly.

January 13, 2009        S.N.AGGARWAL
a                          [JUDGE]