Delhi High Court
M/S Anoopam India Pvt. Ltd. vs M/S Newgen Speciality Plastic ... on 29 August, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: August 29, 2014
+ CS(OS) No. 2785/2012
M/S ANOOPAM INDIA PVT LTD ..... Plaintiff
Through Mr.T.K Dadhich, Advocate
versus
M/S NEWGEN SPECIALITY PLASTIC LTD & ORS. ...Defendants
Through None.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The present suit has been filed by the plaintiff for recovery of
Rs.1,03,94,539/- against the defendants. Despite of service of
summons, no one appeared on behalf of the defendants. The
defendants were proceeded ex-parte by order dated 27th March,
2014.
2. The ex-parte evidence was produced by the plaintiff. From the
record it appears that no written statement is filed by the defendants.
The defendant No.1 is a company incorporated under the Companies
Act and defendants No.1 to 4 are the directors and office bearers of
the company and according to the plaintiff the defendants were
involved in the transaction in the present suit.
3. The case of the plaintiff is that the defendants approached the
plaintiff company and placed orders for purchasing Plastic
Granules/Danas/Polymers etc. on credit basis and the plaintiff
therefore was maintaining a ledger account in the name of the
defendants in books of accounts, as plaintiff maintains in its normal
course of business and as per the said books of accounts a sum of
Rs.1,03,94,539/- are recoverable from the defendants by the plaintiff.
The copy of the said ledger account is exhibited as Ex.CW1/2.
4. It is further the case of the plaintiff that the plaintiff supplied
ordered material/goods to the defendants at their sites in full
satisfaction and confidence of the defendants and they received the
same. The plaintiff sent the said material through proper bills and
invoices. The copies of the said bills and invoices and LR/GR,
Bills/Receipts are exhibited as Ex.CW1/3 (Colly.).
5. The defendants also issued four post dated cheques bearing
Nos. 458183 dated 23rd May, 2010 for Rs.8,00,000/-, 458184 dated
26th May, 2010 for Rs.7,74,880/-, 458155 dated 10th April, 2010 for
Rs.7,19,308/- and 458156 dated 7th May, 2010 for Rs. 12,17,921/- all
drawn on Oriental Bank of Commerce, Barola, Sector-49, Noida,
U.P., in partial discharge of their payment liability.
6. The defendants assured the plaintiff that the above said
cheques shall be encashed on their representation by their banker
but the same stood dishonoured and the plaintiff immediately talked
with the defendants and they requested not to file legal case or
initiate legal proceedings against them and also shown their financial
crises and hardship and assured that they shall make the payment
soon because their credit limit is likely to be sanctioned from some
financial institution/bank and the plaintiff relied on their assurance
due to old business relations and had not initiated legal proceedings
against the defendants.
7. It is deposed in the affidavit that inspite of repeated requests,
personal visits and reminders, the defendants neither made any
payments nor the cheques already issued got honoured and
encashed.
8. It is further deposed that in the affidavit that on receipt of legal
notice, the defendants again assured the plaintiff that they shall make
the payments soon and again requested not to initiate legal
proceedings against them and had also released a meagre sum of
Rs.3 lac to the plaintiff by RTGS Mode on 23rd October, 2011 but
thereafter no payment had been released by the defendants till filing
of present suit, inspite of making repeated requests and reminders.
The copies of the said e-mail conversation/correspondences between
the parties are exhibited as Ex.CW1/8 (Colly.).
9. It is stated in the affidavit that on receipt of summons, the
defendants issued some posted dated cheques to the plaintiff in
partial discharge of the payment liability and assured their
encashment on presentation. However, on their presentation, they
stood dishonoured and plaintiff filed criminal complaints under
Section 138 of Negotiable Instruments Act which are pending before
Metropolitan Magistrate, Tis Hazari Courts, Delhi. However, the
defendants have made some payments in installments through
RTGS mode and thereafter, stopped making further payments. As
per the books of accounts a sum of Rs.58,82,284/- is still recoverable
from defendants. The copy of ledger account as on 30th June, 2014
is exhibited as Ex.CW1/9.
10. It is the admitted position that when the suit was filed a sum of
Rs.1,03,94,539/- was due. The plaintiff has received certain
payments from the defendants after filing the complaints under
Section 138 of the Act. As per Ex.CW1/9 i.e. ledger account a sum
of Rs.58,82,284/- is due. The evidence of the plaintiff has not been
rebutted by the defendants who have also failed to file the written
statement. They have also not cross-examined the plaintiff's witness.
Therefore, the amount shown in the ledger account as on 30th June,
2014 as mentioned in Ex.CW1/9 is taken as correct.
11. In view of the above, the suit of the plaintiff is decreed for a
sum of Rs.58,82,284/- along with pendentelite and future interest
from the due date @ 9% per annum till the date already fixed. of
payment. The plaintiff is also entitled for cost. Decree be drawn
accordingly.
(MANMOHAN SINGH)
JUDGE
AUGUST 29, 2014
