Delhi High Court
M/S Moser Baer Photo Voltaic Ltd vs M/S Mas Project Engineers Pvt Ltd on 22 January, 2014
Author: G. S. Sistani
$~ 14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 883/2012
% Judgment dated 22.01.2014
M/S MOSER BAER PHOTO VOLTAIC LTD ..... Plaintiff
Through: Mr.Nishant Datta and Ms.Garima, Advs
versus
M/S MAS PROJECT ENGINEERS PVT LTD ..... Defendant
Through: None.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
1. Plaintiff has filed the present suit under Order 37 CPC for recovery of the
amount of Rs.20,13,218/-.
2. After service of summons on the prescribed form the defendant did not
file Memo of Appearance, although a counsel appeared in court on
25.5.2012, 31.5.2012 and 21.1.2013. No vakalatnama has been filed by
the counsel for the defendant. Counsel for the plaintiff submits that being
a suit under Order 37 CPC and in the absence of the defendant filing his
memo of appearance, the plaintiff is entitled to a decree.
3. As per the plaint, the defendant had placed an order on the plaintiff for
supply of photovoltaic Solar Panels (hereinafter referred to as the goods)
vide purchase order No.P/04/08/SS/385 dated 21.11.2008. The goods
were duly delivered and installed by the plaintiff at the desired site
mentioned by the defendant. Plaintiff raised two sale invoices on the
defendant dated 31.12.2008 bearing No.PVDTE/000531 and dated
2.12.2009 No.2009900286 for Rs.12,42,360/- and Rs.10,34,790.38
CS(OS)No.883-2012 Page 1 of 4
respectively. Part payments of Rs.2,23,252/- and Rs.8,69,652/- were
made by the defendant to the plaintiff. Reliance is placed on the invoices,
where the amount payable to the plaintiff by the defendant stands
quantified.
4. Counsel for the plaintiff submits that legal notice was issued to the
defendant and being a commercial transaction defendant was informed
that if the outstanding amount was not cleared, the defendant would be
liable to pay interest @ 18%.
5. It is also pointed out by counsel for the plaintiff that a petition under
Sections 433 and 434 of the Companies Act for winding up was also filed
against the defendant before the Company Court. The parties had arrived
at an amicable settlement in C.P.No.516/2011. In the settlement it was
agreed that the defendant would pay the principal sum of Rs.11,84,246/-
along with simple interest @ 5% w.e.f. 20.12.2009 in 12 equal monthly
instalments and in case of default, the defendant would be liable to pay
the principal amount with interest @9%.
6. Counsel submits that out of principal amount of Rs.11,84,246/-, the
plaintiff has already received a sum of Rs.8,95,161/-. It is prayed that the
suit be decreed for the balance amount together with interest accrued
thereupon.
7. I have heard counsel for the plaintiff. The plaintiff has filed the present
suit under the provisions of Order 37 of the Code of Civil Procedure. As
per the provisions of Order 37 Rule [2] (3) upon receipt of summons the
defendant is to enter appearance and in default of his entering appearance,
the allegations made in the plaint are deemed to be admitted and the
plaintiff is entitled to a decree with interest at the rate specified, if any,
upto the date of decree. As per Order 37 (3) the defendant is to enter
appearance within 10 days and also file in court an address for service of
CS(OS)No.883-2012 Page 2 of 4
notices on him.
8. In this case after service, the defendant did not enter appearance as per the
provisions of Order 37 (3) CPC, although a counsel appeared on
25.5.2012, on which date counsel for the parties requested that the matter
be placed before the Mediation Centre. Counsel for the defendant also
appeared on the next date of hearing on 31.5.2012 and also on 21.1.2013,
and thereafter none has chosen to appear on behalf of the defendant. It
may also be noticed that the defendant has not only failed to file memo of
appearance, but the counsel has not filed Vakalatnama.
9. Counsel for the plaintiff has also handed over a copy of the order dated
7.5.2012 passed in Company Petition No.516/2011 wherein the statement
of the defendant has been recorded, and he has agreed to pay the principal
sum of Rs.11,84,246/- along with the simple interest @5% w.e.f.
20.12.2009 in 12 equated monthly installments to the plaintiff. Relevant
portion of the order dated 7.5.2012 passed in Co.Pet.No.516/2011 read as
under:
"I, have heard the order passed in Court today. I on behalf of
the respondent company, agree to pay the principal sum of
Rs.11,84,246/- along with the simple interest @5% per
annum w.e.f. 20th December, 2009 totalling to Rs.13,32,277/-
in twelve equated monthly installments to the petitioner. The
first installment shall be paid on or before 21st May, 2012
and the remaining installments shall be paid on or before
21st day of each month.
I on behalf of the respondent company, shall pay the monthly
installment of Rs.1,11,023/- by RTGS mode to the petitioner.
I further agree that in the event of default in making payment
of any of the two equated monthly installments, respondent
shall be liable to forthwith pay the principal sum along with
the simple interest @ 9% per annum."
10. Counsel for the plaintiff submits that the part payment of Rs.8,95,161/-
has been made.
11. For the reasons stated above, the present suit is decreed in the sum of
Rs.2,89,085/- along with interest @ 9% from 7.5.2012 till realization.
Decree-sheet be drawn up accordingly.
G.S.SISTANI, J
JANUARY 22, 2014
ssn
