Perfetti Van Melle India Pvt Ltd vs M/S Mahek Enterprises & Ors
2014 Latest Caselaw 3097 Del

$~ 19
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CS(OS) 1654/2012 & I.A. 7774/2013
%                                     Judgment dated 15.07.2014
        PERFETTI VAN MELLE INDIA PVT LTD..... Plaintiff
                 Through: Mr.Rajive R. Ray, Advocate

                           versus

        M/S MAHEK ENTERPRISES & ORS             ..... Defendants
                Through; Mr.A. Jain for Mr.Aseem Mehrotra,
                Advocate for the defendants.
        CORAM:
           HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J (ORAL)
1.

Counsel for the defendants seeks an adjournment, as the arguing counsel is in some personal difficulty. The adjournment is opposed by counsel for the plaintiff. Counsel for the plaintiff further submits that the leave to defend application is not on record. The request for adjournment is declined.

2. Plaintiff has filed the present suit under the provisions of Order 37 CPC for recovery of Rs.32,13,485/- including the interest @ 18%. The suit is based on invoices and dishonoured cheques.

3. The defendants entered appearance, as noticed in the order dated 3.4.2013, and, thereafter an application IA.No.7774/2013 was filed by the plaintiff for summons for judgment, the defendants were duly served.

4. In the order of 22.8.2013 it was noticed that an application for leave to defend had been filed by the defendants on 1.7.2013; and the matter was adjourned to 4.10.2013, 28.1.2014 and 30.4.2014, but the application for leave to defend has still not been brought on record. Counsel for the plaintiff submits that in the absence of an application for leave to defend,

plaintiff is entitled to a decree in terms of provisions of Order 37 of the Code of Civil Procedure. There is no explanation forthcoming as to why steps have not been taken to have the application for leave to defend placed on record since 1.7.2013. Any further delay in this matter would defeat the very purpose of filing a suit under the provisions of Order 37 of the Code of Civil Procedure.

5. As per the plaint, plaintiff is engaged in the manufacture and sale of world class confectionery products, including chewing gum, bubble gum & toffee. Defendants are engaged in the business of retail trade. The defendant no.1 had approached the plaintiff through defendants no.2 and 3 for distribution and retail sale of plaintiff's confectionary products. An agreement was entered into between the plaintiff and defendants on 15.9.2004 for selling, marketing and distributing the goods manufactured and/ or marketed by the plaintiff. Pursuant to which orders and instructions were placed by the defendants from time to time, consequent to which, the plaintiff delivered the goods. A copy of the distribution agreement dated 15.9.2004 has been filed on record. Plaintiff had raised several invoices to the defendant, out of which 12 invoices, as detailed below, are outstanding:

             Sl.No.      Invoice Date         Invoice No.            Amount

                 1.   25.02.2009          792139923            Rs.82,298/-

                 2.   16.02.2009          792139681            Rs.2,06,980/-

                 3.   13.03.2009          792140315            Rs.2,89,634/-

                 4.   10.02.2009          792139498            Rs.2,77,640/-




                5.     28.02.2009         792140050           Rs.2,82,214/-

               6.     20.02.2009         792139803           Rs.1,29,898/-

               7.     05.03.2009         792140100           Rs.2,30,964/-

                8     30.03.2009         792140762           Rs.1,58,951/-

               9.     10.04.2009         792141022           Rs.1,59,370/-

               10.    17.03.2009         792140392           Rs.31,541/-

               11.    20.03.2009         792140525           Rs.2,04,723/-

               12.    30.03.2009         792140745           Rs.1,67,098/-

6. Against the aforesaid invoices, 12 cheques were issued by the defendants, as detailed below:

             Sl.No.     Cheque No.              Date              Amount

               1.     886135             10.02.2009          Rs.2,77,644/-

               2.     886136             18.02.2009          Rs.2,06,980/-

               3.     886137             21.02.2009          Rs.1,29,898/-

               4.     886138             26.02.2009          Rs.82,298/-

               5.     886140             03.03.2009          Rs.2,06,980/-

               6.     886792             05.03.2009          Rs.2,13,026/-

               7.     886793             13.03.2009          Rs.2,89,634/-




                  8     886794                17.03.2009           Rs.31,541/-

                 9.    886795                20.03.2009           Rs.2,04,723/-

                10.    886796                30.03.2009           Rs.1,67,098/-

                11.    886797                30.03.2009           Rs.1,58,951/-

                12.    886798                10.04.2009           Rs.1,59,370/-

7. The above said 12 cheques were presented by the plaintiff through its bankers, however, the same were dishonoured for which the plaintiff has also instituted proceedings under Section 138 of the Negotiable Instruments Act. Certified copies of the cheques have been placed on record. The carbon copies of the invoices have also been placed on record. As per clause 21 of the agreement between the plaintiff and the defendants, the distribution agreement was signed at New Delhi and the parties had agreed that courts at Delhi would have the territorial jurisdiction; and all payments were made at Delhi.

8. Rule 3 (6) (a) of Order XXXVII of the Code of Civil Procedure reads as under:

"3. Procedure for the appearance of defendant - (1) to (5) xxxxxx

(6) At the hearing of such summons for judgment, -

(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith;"

9. In the absence of any leave to defend application on record and for the

reasons stated in the plaint and the documents placed on record, the present suit is decreed in favour of the plaintiff and against the defendants with pendente lite and future interest @ 8 %. Decree-sheet be drawn up accordingly.

I.A. 7774/2013

10. In view of the order passed in the suit, the present application stands disposed of.

G.S.SISTANI, J JULY 15, 2014 ssn