Delhi High Court
Ak Hab Europe Bv vs Whitefields International ... on 25 April, 2011
Author: J.R. Midha
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS (OS) No.1724/2009
% Date of decision: 25th April, 2011
AK HAB EUROPE BV ..... Plaintiff
Through : Mr. Ankur Mittal, Adv.
versus
WHITEFIELDS INTERNATIONAL PRIVATE
LIMITED ANR ANR. ..... Defendants
Through : None.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may YES
be allowed to see the Judgment?
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
JUDGMENT (ORAL)
CS(OS) 1724/2009 and I.A.No.10371/2010
1. The plaintiff has filed this application under Order XII Rule 6
of the Code of Civil Procedure for passing of decree on the basis
of the admissions of the defendants.
2. No reply has been filed to the application despite the
number of opportunities granted. Vide order dated 10th January,
2011, last opportunity was granted to the defendants to file the
reply within two weeks subject to cost of `20,000/-. However, the
defendants neither filed the reply nor paid the cost whereupon
the defendants right to file the reply was closed on 11th March,
2011.
3. The relevant facts in brief are as under:-
3.1 The plaintiff is a company based in Netherlands and is
engaged in business of trading.
3.2 In January, 2009, the defendants agreed to sell 115 MT of
rice to the plaintiff for a total consideration of US$ 97,750/- @
US$ 850 per MT.
3.3 The plaintiff accordingly placed the purchase order
No.44315-0250 dated 6th February, 2009 upon the defendants
and remitted the entire consideration in advance to the
defendants by transferring the funds to defendant No.1's account
No.2000193003679 with Bank of Rajasthan. The plaintiff has
filed the statement of account along with the plaint to prove the
transfer of funds. As per the purchase order, the ordered rice
was to be delivered by 10th February, 2009.
3.4 Vide e-mail dated 10th February, 2009, the defendant
admitted the receipt of the aforesaid payment.
3.5 Despite the remittance of the total consideration in
advance, the defendants failed to supply the rice to the plaintiff
whereupon the plaintiff issued reminders dated 27th January,
2009, 25th February, 2009 and 4th March, 2009.
3.6 Vide e-mail dated 7th April, 2009, the defendant refused to
send the shipment on the ground of increase in prices. In the
alternative, the defendant offered to deduct the cost of the
empty bags and to refund the balance payment.
3.7 Vide e-mail dated 8th April, 2009, the defendant again
agreed to ship the rice in terms of the agreement but despite the
same, no shipment was made whereupon the plaintiff issued
reminders dated 9th April, 2009, 18th April, 2009, 20th April, 2009,
7th May, 2009, 9th May, 2009, 11th May, 2009, 13th May, 2009 and
14th May, 2009.
3.8 Vide e-mail dated 24th March, 2009, the plaintiff called upon
the defendant to refund the payment in reply to which the
defendant vide e-mail dated 24th May, 2009 agreed to refund the
payment received.
3.9 Vide e-mail dated 19th June, 2009, the plaintiff again
demanded refund of the payment from the defendants.
3.10 The plaintiff instituted this suit for recovery of
US$ 1,07,536/- (`52,69,264/-) on 27th August, 2009.
4. The learned counsel for the plaintiff submits that the
defendants have made the following admissions which entitle the
plaintiff to obtain the decree under Order XII Rule 6 of the Code
of Civil Procedure:-
4.1 The plaintiff has admitted the entire correspondence
exchanged between the parties as matter of record in the written
statement.
4.2 Vide e-mail dated 25th September, 2009 of defendant No.1
to the plaintiff, the defendants have refunded the part payment
of US$ 20,000/- to the plaintiff.
4.3 In reply to the plaintiff's e-mail dated 26th September, 2009,
defendant No.1 admitted the payment of US$ 20,000/- to be a
meager amount but mentioned their intention not to keep the
plaintiff's money.
4.4 Vide e-mail dated 30th September, 2009, defendant No.2
expressed his apology for delay in shipment.
4.5 Vide e-mail dated 26th September, 2009, defendants
admitted the receipt of full payment of the consignment of 115
MT of rice.
5. Learned counsel for the plaintiff submits that the
defendants have admitted the receipt of the entire sale
consideration of US$ 97,750/-. The defendants have further
admitted the non-delivery of the shipment to the plaintiff. The
defendants have further apologized for the non delivery and have
refunded part payment of US$ 20,000/- but have not made the
balance payment.
6. The admissions by the defendants are sufficient to pass a
decree in favour of the plaintiff under Order XII Rule 6 of the Code
of Civil Procedure. The plaintiff is thus entitled to US$ 77,750/-
(US$ 97,750 less US$ 20,000). Learned counsel for the plaintiff
submits that the conversion rate of US dollar was `49/- per US
dollar on the date of filing of the suit and accordingly the plaintiff
is entitled to principal amount of `38,09,750/- (US$ 77,750 x 49).
The plaintiff is claiming interest @18% per annum for the pre-suit
period as well as pendente lite and future interest.
7. In the facts and circumstances of this case, the plaintiff's
application under Order XII Rule 6 of the Code of Civil Procedure
is allowed and the suit is decreed in favour of the plaintiff and
against the defendants on the following terms:-
7.1 The suit is decreed for `38,09,750/- in favour of the plaintiff
and against the defendants.
7.2 The plaintiff shall be entitled to interest @9% per annum on
the total principal amount of `47,89,750/- from the date of
transfer of funds, i.e., 6th February, 2009 up to 25th September,
2009 when the defendants made part payment of US$ 20000 to
the plaintiff. The plaintiff shall be entitled to pendente lite and
future interest @9% per annum on the balance amount of
`38,09,750/- from 25th September, 2009 till realization.
7.3 The plaintiff is also awarded costs of the suit including the
Court fees paid as well as the counsel's fees.
8. All pending applications are disposed of.
J.R. MIDHA, J
APRIL 25, 2011
aj
