M/S. Bridgestone India Pvt. Ltd. vs M/S. Chawla Tyre House & Others
2009 Latest Caselaw 2308 Del

*        HIGH COURT OF DELHI : NEW DELHI

+                           CS(OS) No. 2374/2008

%                                 Judgment reserved on :      26th May, 2009

                                  Judgment pronounced on : 28th May, 2009

M/S. BRIDGESTONE INDIA PVT. LTD.                  ..... Plaintiff
           Through  Mr. Harish Malhotra, Sr. Adv. with
                    Mr. N.K. Kantawala and Mr. Mukesh K.
                    Verma, Advs.

               versus

M/S. CHAWLA TYRE HOUSE & OTHERS                       .... Defendants
          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 for recovery of Rs.39,28,997/-

(Rupees Thirty Nine Lac Twenty Eight Thousand Nine Hundred Ninety

Seven only), together' with cost and interest, against the defendants, under

Order XXXVII of Code of Civil Procedure. It is submitted that the plaintiff is

a private limited company duly incorporated under the Companies Act, and is

engaged in the business of manufacturing and sale of tyres, tubes etc.' Mr.

Subhash Kumar Chillar has been authorised to file the present suit by virtue of

resolution passed by the Board of Directors of the plaintiff company in a

meeting held on 20.9.2008.

2. It is alleged that the defendant No.1 is a partnership firm and the

defendant Nos. 2 to 4 are its partners. The defendant No.1 was appointed as a

dealer for the sale of tyres, tubes etc., manufactured by the Plaintiff and the

Plaintiff had been supplying the tyres, tubes etc. as per orders placed by the

defendants. The Plaintiff has been maintaining proper books of account in the

regular course of business and as such the goods were supplied to the

defendants against invoices, the Plaintiff used to debit the amount of the

invoices in the books of account and as and when the defendants used to make

any payment, the same was credited in the account of the defendant, treating

the entire amount due on that day.

3. It is further alleged that during the period 14.9.2005 to 14.3.2006, the

defendants purchased and the plaintiff supplied the tyres, tubes etc., for a total

amount of Rs.38,53,041.47 against various invoices, copies of invoices duly

acknowledged by the defendants are filed with the suit which are collectively

marked as Annexure 'A' (Colly). The defendants in order to pay the amount

of the above invoices gave various cheques, 46 in numbers, to the Plaintiff

with the assurance that the cheques are good for payment and shall be

honoured by the banks on their due dates. Original cheques have also been

filed with suit. All the cheques issued by the defendants were returned unpaid

and the cheques returning memos have also been filed.

4. The Plaintiff after receipt of every dishonoured cheque, informed to

the defendants about the same with a request to pay the amount of the

cheques, but in vain and ultimately, the Plaintiff demanded the amount of the

cheques from the defendants by means of notices dated 21.8.2006. The

defendants despite having received the notices failed to pay the amount due

against them.

5. The plaintiff has claimed interest @ 9% per annum and besides the

amount of the invoices, the defendants are liable to pay Rs.9,71,653.84

towards interest till the date of filing of the suit. In total a sum of

Rs.48,24,695.32 (Rupees Forty Eight Lacs Twenty Four Thousand Six

Hundred Ninety Five and Paise Thirty Two only) has been claimed from the

defendants. It is submitted that a sum of Rs.7,44,618/- for security deposit

plus interest stands credited in the account of the defendants and after

adjusting the above amount a sum of Rs.39,28,997/- (Rupees Thirty Nine

Lacs Twenty Eight Thousand Nine Hundred Ninety Seven only) is due from

the defendants to the Plaintiff and the Plaintiff has claimed the said amount in

the suit.

6. The plaintiff contended that the defendants were duly served with the

summons of the suit and have not entered the appearance till date and as such

as per provisions contained in Order XXXVII Rule 2 (3) CPC the allegations

contained in the plaint shall be deemed to be admitted and the plaintiff is

entitled to the decree and the suit of the plaintiff is liable to be decreed with

pendentelite interest @ 9% per annum till payment and costs of the suit.

7. Order XXXVII Rule 2 Sub Rule (3) clearly and specifically provides

that where a defendant shall not defend the suit referred to in sub-rule (1)

unless he enters an appearance and in default of his entering an appearance

the allegations in the plaint shall be deemed to be admitted and the plaintiff

shall be entitled to a decree for any sum, not exceeding the sum mentioned in

the summons, together with interest at the rate specified, if any, up to the date

of the decree.

8. The plaintiff has filed the original documents. The allegation made in

the plaint have gone unrebutted as the defendant has not put appearance

within the time prescribed U/o XXXVII CPC and failed to defend the suit.

Therefore, the allegations in the plaint are deemed to be admitted and the

plaintiff shall be entitled to a decree for a sum of Rs.39,28,997/- together with

pendentelite interest @ 9% per annum till payment. The suit is disposed of.

Decree Sheet be prepared accordingly.

MANMOHAN SINGH, J.

MAY 28, 2009 sa