Delhi High Court
S C Manocha vs M/S Balaji Thurmo Electrical Pvt ... on 11 December, 2014
Author: S. P. Garg
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 19th November, 2014
DECIDED ON : 11th December, 2014
+ CS(OS) 16/2012
S C MANOCHA
..... Plaintiff
Through : Mr.J.K.Dhingra, Advocate.
versus
M/S BALAJI THURMO ELECTRICAL PVT LTD
..... Defendant
Through : None.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. The plaintiff has instituted the instant suit for recovery of
`26,80,484/- along with pendente lite and future interest.
2. Plaintiff is the proprietor of M/s Max Engineering and
Marketing Company and deals in electrical items of various description.
The defendant used to purchase goods from him through various invoices.
He was liable to pay interest at the rate of 24% per annum on delayed
payment.
3. Case of the plaintiff is that the defendant purchased electrical
goods from him through various invoices as detailed in para (4) of the
plaint from September 21, 2010 to October 2010. As per the statement of
account maintained by him a balance of `23,51,302/- was due and
outstanding against the defendant on account of balance price of the goods
till 23rd October, 2010. The defendant in discharge of the part liability
issued a cheque for the sum of `10,11,431/- vide cheque bearing
No.007966 dated 20.11.2010. However, on presentation the cheque was
dishonoured. Again, the defendant issued another cheque in the last week
of January, 2011 which was also dishonoured. Proceedings under Section
138 Negotiable Instruments Act have been initiated. The defendant failed
to make payment despite various requests. Hence the present suit.
4. None appeared on behalf of the defendant despite service.
The defendant was accordingly proceeded ex-parte by an order dated
18.02.2014. The plaintiff examined himself as PW-1 besides examining
PW-2 (Nikhil Kumar) and PW-3 (R.K.Suri).
5. I have heard the learned counsel for the plaintiff and have
examined the record. The averments in the plaint have been proved by
PW-1 Shomender Gupta, attorney of the plaintiff. He filed affidavit of
evidence (Ex.PW-1/A). He proved various documents (Ex.PW1/1 to
Ex.PW1/21). Reliance was also placed on documents marked X to X5.
Ex.PW1/1 is the general power of attorney issued in favour of Shomender
Gupta. Exhibit PW-1/2 to Ex.PW-1/19 are 18 invoices through which
electric goods were purchased by the defendant from the plaintiff.
Statement of account is marked 'X' for the period from 01.04.2010 to
31.03.2011. Mark-X1 is the photocopy of the cheque bearing No.007966
issued in favour of the plaintiff. Ex.PW-1/20 is the notice dated
03.03.2011 served upon the defendant.
6. PW-2 (Nikhil Kumar) brought the judicial record in the
proceedings under Section 138 Negotiable Instruments Act and deposed
that it contained original cheque No. 007966 dated 20.11.2010 drawn on
ICICI bank and return memo dated 02.02.2011 issued by the Indian
Overseas Bank. Photocopies of the same were marked as Ex.PW2/1 and
Ex.PW-2/2 respectively. Postal receipts were exhibited as Ex.PW-2/3 to
Ex.PW-2/6. PW-3 R.K.Suri, Assistant Manager, Indian Overseas Bank,
Punjabi Bagh, proved return memo (Ex.PW-2/2).
7. The testimonies of PW-1 to PW-3 have remained
unchallenged and uncontroverted. Adverse inference is drawn against the
defendant for not appearing and contesting the suit. There are no sound
reasons to disbelieve the unchallenged testimony of PW-1 to PW-3.
Issuance of two cheques in the discharge of part liability by the defendant
and proceedings under Section 138 Negotiable Instruments Act
corroborate the version given by the plaintiff in the plaint and evidence by
way of affidavit.
8. In the light of the above discussion, the suit of the plaintiff is
decreed for the sum of `26,80,484/- with costs. The plaintiff shall also be
entitled for interest at the rate of 12% per annum from the date of filing of
the suit till the realization of the outstanding amount.
9. Decree sheet be prepared accordingly.
10. The suit and pending IA (if any) stand disposed of
accordingly.
(S.P.GARG)
JUDGE
December 11, 2014
sa
