Delhi High Court
M/S Sampark Industries Ltd. vs M/S Balaji Polymers on 28 May, 2009
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.1539/2007
% Date of Decision: 28.05.2009
M/s Sampark Industries Ltd. .... Plaintiff
Through Mr. Pankaj Chaudhary, Advocate for
the plaintiff.
Versus
M/s Balaji Polymers .... Defendant
Through Nemo.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
*
1. This is a suit for recovery of Rs.45,84,950/- under Order 37 of
Code of Civil Procedure. The defendant, pursuant to the summons
under Order 37 of the Code of Civil Procedure, had filed his appearance
within time. Thereafter, summons for judgment was issued. After
service of summons for judgment which was accepted by the defendant
on 3rd April 2008, the leave to defend application was filed by the
defendant.
2. Leave to defend was returned under objection, however, it was
not re-filed despite various opportunities granted to the defendant on
31st October, 2008, 28th November, 2008. Last opportunity was granted
to re-file the application for leave to defend subject to cost of
Rs.10,000/-.
3. The matter was adjourned from time to time, however, the cost
was not paid and on 12th May, 2009 last opportunity was granted to the
defendant to pay the cost within one week.
4. On 21st May, 2009 no one had appeared on behalf of defendant
nor the cost imposed vide order dated 2nd February, 2009 was paid.
Therefore the application of the defendant for leave to defend and
Contest Suit being IA No.2289/2009 was dismissed in default and for
non-prosecution.
5. The plaintiff has sought recovery of Rs.45,84,950/- on account of
job work and material supplied by the plaintiff to the defendant. The
plaintiff has given the detail of invoices which were raised on the
defendant for the material supplied and work done amounting to
Rs.84,21,649/-.
6. The defendant made part payment and after deducting the
amount paid by the defendant to the plaintiff on 1st April, 2006 a
balance amount of Rs.43,57,889/- was due. After 1st April, 2006 more
amounts were paid and on 10th February, 2007 it was acknowledged
that on 31st December, 2006 an amount of Rs.37,58,889/- was due
from defendant to the plaintiff which was confirmed by the defendant in
a letter addressed to Mr. Harish of the plaintiff.
7. The plaintiff has filed the copies of the invoices of the material
supplied and the job work done. The invoices, however, do not stipulate
as to what interest the plaintiff shall be entitled for the amount of
invoices which will remain due.
8. The plaintiff had sent a notice dated 10th May, 2007 demanding
the amount due from defendant to plaintiff alongwith interest @24% per
annum. The defendant had also given the cheques bearing No.251151
& 251152 for Rs.5,00,000/- each which were dishonoured on account
of 'insufficient funds'.
9. The plaintiff has also claimed an amount of Rs.8,26,061/- on
account of interest @24% per annum from the date of confirmation
letter dated 10th February, 2007 till the filing of the present suit. The
plaintiff asserted that the claim of interest @24% was not opposed by
the defendant despite receipt of legal notice dated 10th May, 2007 and
the rate of interest in the market and as per legal usage is also 24% per
annum.
10. In these facts and circumstances, this cannot be disputed that a
sum of Rs.37,58,889/- was due from the defendant to the plaintiff as on
31st December, 2006 which was acknowledged by the defendant on 10th
February, 2007. Though, the plaintiff has claimed interest @24% per
annum. However, besides making the bald allegation in the plaint that
according to market custom and usage plaintiff is entitled for interest @
24% per annum, no document has been filed with the plaint to show
that rate of interest was 24% per annum. The rate of interest was also
not agreed by the parties. Therefore the plaintiff is not entitled for
interest @ 24% per annum as claimed by the plaintiff. However, since
the amount of Rs.37,58,889/- is due from defendant to the plaintiff, the
plaintiff shall be entitled for interest and therefore plaintiff is awarded
interest @12% per annum from 10th February, 2007 till the filing of the
suit and thus an amount of Rs.4,13,031/- is also due to the plaintiff
from the defendant on account of interest.
11. Therefore, the plaintiff is entitled for a principal sum of
Rs.37,58,889/- and simple interest @12% per annum till the filing of
the suit amounting to Rs.4,13,031/- and thus a total amount of
Rs.41,71,920/- is due from the defendant to the plaintiff
12. Thus, a decree for recovery of Rs.41,71,920/- (Rupees forty one
lakhs seventy one thousand nine hundred and twenty) is passed in
favour of the plaintiff and against the defendant. Pendente lite and
future simple interest is also awarded to the plaintiff on the decreetal
amount @ 9% per annum till the realization of the decreetal amount.
Cost of the suit is also awarded to the plaintiff against the defendant.
Decree sheet be drawn accordingly.
MAY 28th, 2009. ANIL KUMAR, J.
"gsr"
