Delhi High Court
Ajanta Offset And Packagings Ltd. vs Grehard Peper Gmbh on 24 September, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No. 35/2002
% 24th September, 2012
AJANTA OFFSET AND PACKAGINGS LTD. ..... Plaintiff
Through: Mr. Sudhir Makkar, Adv. and Ms.
Meenakshi Singh, Adv.
VERSUS
GREHARD PEPER GMBH ..... Defendant
Through: Defendant is ex parte.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1.
The subject suit has been filed by the plaintiff for recovery of
` 91,06,645/-. The amount claimed is for refund of the price paid of the machines
which were sold by the defendant to the plaintiff. The machines were defective
and resultantly no production could be undertaken on behalf of the plaintiff on
such machines.
2. The subject suit for recovery has been filed by the plaintiff against the
defendant who sold to the plaintiff two reconditioned machines namely Case
Maker DA-36 Model 1979 and Aster Headcop 4+4 Sewing Machine 1987. The
machines were to be used for the work of printing of various materials like books,
posters, leaflets, etc. The defendant was paid a price/consideration of DEM
2,00,000.00 for these machines. When these machines were received at the works
of the plaintiff, the employees of the defendant came to install and commission the
same. The machines were only partly installed and not fully commissioned
because the same started giving problems immediately. The plaintiff vide its
communication dated 21.7.1999, informed the defendant about the problems which
the plaintiff was facing with respect to the machines and which were as under:-
(a) The board cutting unit was not working properly i.e board cutting was
cross and not even. The spine was not traveling freely in the path.
Gutter was coming across while adjusting the spine path as per
requirement and the figurehead was not lifting the spine and if it was
made loose then gutter was coming across.
(b) Out of three compressors, one compressor was not working properly
and was leaving the spine and board most of the time.
(c) Glue tank heater and thermostat were not working at all."
The plaintiff is said to have addressed further communications dated
2.8.1999 and 3.8.1999, besides talking to the defendant, however, the defendant
kept on giving some or the other explanations including of not getting visas, but
really, the defendant was said to have defrauded the plaintiff by selling machines
which failed to perform the purpose for which they were sold to the plaintiff.
Ultimately, a legal notice dated 26.2.2001 was sent to the defendant, which having
failed to yield the desired result, the subject suit came to be filed.
3. The defendant failed to appear and has been proceeded ex parte vide
order dated 7.5.2010. Plaintiff has led evidence and filed affidavit of its witness
Sh. K.K.Aggarwal PW-1.
4. The witness of the plaintiff Sh. K.K.Aggarwal (PW-1) has deposed
with respect to entitlement to file the suit by the signatory and Board resolution is
exhibited as Ex.PW1/2. The proforma invoice of DEM 2,00,000 has been
exhibited as Ex.PW1/3. Copies of the invoices as also the warranty of six months
contained in this regard have been exhibited as Ex.PW1/6 and Ex.PW1/7.
Connected documents being the certificate of guarantee dated 12.4.1999 are
exhibited as Ex.PW1/8 and Ex.PW1/9 respectively. The copies of communications
which have been sent by the plaintiff to the defendant have been proved and
exhibited as PW1/11 and Ex.PW1/12. Two other communications dated 2.8.1999
and 3.8.1999 have been proved and exhibited as Ex.PW1/14 and Ex.PW1/15. An
earlier copy of communication containing the defects in the machines dated
21.7.1999 has been exhibited as Ex.PW1/13. Correspondence to the embassies and
further correspondence entered into have been exhibited as Ex.PW1/16 (colly).
Other related documents being the other letters and the legal notice have been
exhibited as PW1/17 to Ex.PW1/22.
5. In view of the fact that the defendant has failed to appear and did not
lead evidence and the witness of the plaintiff has not been cross examined, I am of
the opinion that plaintiff has proved its case that the machines were defective and
failed to meet the contractual purpose and the specification of the six months
warranty.
6. Accordingly, suit of the plaintiff is decreed against the defendant for a
sum of ` 91,06,645/- alongwith the pendente lite and future interest at 9% per
annum simple till payment. Plaintiff will also be entitled to costs of the suit.
Decree sheet be prepared.
VALMIKI J. MEHTA, J
SEPTEMBER 24, 2012
ib
