Zest System Pvt. Ltd. vs Adesh Sant
2014 Latest Caselaw 6473 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Order delivered on: 4th December, 2014

+                        CS (OS) No. 1672/2013

       ZEST SYSTEM PVT. LTD.                                  ..... Plaintiff
                    Through Mr. Satinder, Adv.
                    versus

       ADESH SANT                                          ..... Defendant
                         Through     None


       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. This is a summary suit for recovery filed by the plaintiff against the defendant under Order XXXVII CPC for a sum of Rs.26,25,000/- along with interest @ 18% per annum.

2. Brief facts of the case as stated in the plaint are that the plaintiff is a dealer of H.P. Computers and Laptops who is engaged in the business of selling laptops and computer along with computer peripherals.

3. It is the case of the plaintiff that the defendant was introduced to the plaintiff by the former Vice-President, Marketing of the plaintiff company as a potential client who could provide significant business to the plaintiff. Defendant represented that he is in the business of bulk procurement and supply of computers, laptops

and computer peripherals to various educational institutions and government departments.

4. Subsequently, pursuant to some negotiations, defendant vide letter dated 9th July, 2010 placed an order of 100 units of HP Mini 110-3026TU 1/250GB 6 Cell Li-ion with the plaintiff for the price of Rs.17, 250 per unit, totalling to Rs.17,25,000/-. It was informed vide the same letter that payment against the said order shall be made by two post dated cheques bearing Nos.021728 and 021729, each for an amount of Rs.8,62,500/- each drawn on Union Bank of India dated 18th July, 2010 and 25th July, 2010 respectively.

5. Later on, the defendant asked the plaintiff to provide 36 units of HP Mini 110-3007TU Notebook at a price of Rs.16,428/- per unit in the first consignment. The plaintiff supplied the same to the defendant on 12th July, 2010 and raised an invoice of Rs.6,21,000/-. Defendant issued a Cheque for Rs.8,62,500/- drawn on United Bank of India dated 18th July, 2010 bearing No. 021728 against the invoice dated 12th July, 2010 and informed the plaintiff that the balance overdue amount of Rs.2,41,500/- could be adjusted in the running account between the parties. While issuing the said cheque, the defendant further placed an order of 59 units of HO Compaq 420 along with 59 units of HP Entry Plus Case for Rs.28,095.24/- per unit and 25 HP Desktop 3090MT E7500 320G at Rs.19,285.71 per unit.

6. On presentation, the cheque bearing No.021728 was dishonoured with remarks that the account against which the

cheque was issued had insufficient funds. The plaintiff thereafter contacted the defendant who informed the plaintiff that the defendant was expecting some transaction to be credited to his account against which the cheque was issued, however, that transaction was not credited within time as expected by the defendant and therefore the cheque might have got dishonoured. He assured the plaintiff that he seeks to have fruitful and long term business relations with the plaintiff.

7. It has been averred by the plaintiff that the plaintiff believing the representations and assurances made by the defendant, delivered 59 units of HP Compaq 420 along with 59 units of HP Entry Plus Case for Rs.28,095.24/- per unit and 25 HP Desktop 3090MT E7500 320G vide Invoice number ZSPL/10-11/0741 dated 21st July, 2010.

8. On receiving the material, defendant cancelled the order for 25 HP Desktop 3090MT E7500 320G and asked the plaintiff to amend the invoice and resubmit the same, which plaintiff states to have done on the same date and delivered the same to the defendant. Against the said invoice, defendant issued a cheque bearing No.021729 for Rs.8,62,500/- drawn on Union Bank of India dated 25th July, 2010. On presentation, the said cheque was also dishonoured with remarks that the account against which the cheque was issued had insufficient funds.

9. The plaintiff thereaftrer met the defendant around end of July, 2010 whereupon the defendant issued a post-dated cheque for

Rs.6,50,000/- drawn on Bank of Maharashtra, bearing No.517879, dated 25th August, 2010 when defendant assured the plaintiff that outstanding payment would be released to him. He requested plaintiff to continue with the business relations with the defendant.

10. On the representations made by the defendant, plaintiff supplied 14 units of HP Mini Laptop 210-1084TU and 3 units of HP Mini 110-3007TU Notebook, each of the 17units at Rs.14,761/- to the defendant on 7th August, 2010 and raised an invoice of Rs.2,63,500/-. Thereafter, defendant handed over a post-dated cheque for Rs.2,50,000/- drawn on Bank of Maharashtra, bearing No.517882, dated 7th September, 2010.

11. When the plaintiff presented cheque bearing No.517879 for encashment, the same was also dishonoured with remarks that the account against which the cheque was issued had insufficient funds. Plaintiff became doubtful about the intentions of the defendant and on meeting the defendant thereafter, the defendant informed the plaintiff that he has been waiting for a large sum of money to be cleared in his favour through a loan which had not been sanctioned and requested for some more time to clear the outstanding payment. He requested the plaintiff not to present cheque for Rs.2,50,000/- drawn on Bank of Maharashtra, bearing No.517882, dated 7th September, 2010 for encashment as he was intending to give a DD or bank transfer by 15th September, 2010.

12. Upon inquires made by the plaintiff, it was revealed that defendant had been criminally charged in other cases and was not

available in his office. The plaintiff tried to contact the defendant and came to know that defendant had been imprisoned in some other matter.

13. It has been stated by the plaintiff that in the later months of year 2011, plaintiff was able to get in touch with the defendant who was untraceable after his release from the Jail for a long time. The defendant requested plaintiff for six to eight months time to clear the due payment.

14. Thereafter when the plaintiff approached defendant in July, 2012 at his new office in Jaipur and demanded the payment, defendant sought more time and requested plaintiff to accept payment along with interest in installments so that he could clear the payment in 5-6 months to which plaintiff agreed. Defendant issued a cheque for an amount of Rs.10,00,000/- drawn on ICICI Bank, bearing No.761667 dated 15th December, 2012. Defendant, however, on the same date called up the plaintiff and requested him not to present the said cheque without his instructions.

15. When the plaintiff presented the said cheque for encashment on 13th March, 2013, the same was dishonoured and returned with a remark that the said account had been closed.

16. Thereafter, when the Director of the plaintiff met the defendant at his Jaipur office and requested him to clear the dues, defendant became violent and refused to make any payment to the plaintiff. He even threatened the Director of the plaintiff that he

would call the police and get the latter implicated in false criminal cases if the latter did not leave the premises of the defendant.

17. Aggrieved thereof, the plaintiff filed the present suit for recovery.

18. The suit was listed for the first time on 2nd September, 2013 when summons were issued to the defendant to enter appearance. It was discovered in the course of proceedings that defendant had left the addresses given by the plaintiff so he could not be served by ordinary process. Accordingly, he was permitted to be served through publication in the 'Statesman', New Delhi edition and in 'Daily News & Analysis', Jaipur edition.

19. Defendant was served by way of publication in the Statesman, New Delhi edition on 23rd July, 2014 and in Daily News & Analysis, Jaipur edition on 25th July, 2014, however no one appeared. Memo of appearance is not filed in accordance with the provisions of Order XXXVII CPC.

20. When the matter is listed before the Court today, still no one appears on behalf of the defendant.

21. The plaintiff has filed the original documents on record. Having heard the learned counsel for the plaintiff and having gone through the plaint and documents placed on record, this Court is of the opinion that the plaintiff is entitled to a decree in the absence of any defence. The present suit is for recovery under Order XXXVII CPC. As per the provisions contained in Rule 2 Sub-Rule 3 of

Order XXXVII CPC, the allegations contained in the plaint are to be deemed to be admitted on the part of the defendants and the plaintiff is entitled to a decree for a sum as mentioned in the summons.

22. Accordingly the suit is decreed for a sum of Rs.26,25,000/- along with pendente lite and future interest calculated @ 18% per annum till payment in favour of the plaintiff. Decree be drawn accordingly.

(MANMOHAN SINGH) JUDGE DECEMBER 04, 2014