Delhi High Court
Umesh Yarn Agencies vs M/S Mahaveer Forgings Pvt. Ltd. & ... on 8 April, 2015
26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 4033/2014 & IA No.26281/2014
Decided on : 08.04.2015
IN THE MATTER OF:
UMESH YARN AGENCIES ..... Plaintiff
Through : Mr. Bharat Gupta, Advocate
versus
M/S MAHAVEER FORGINGS PVT. LTD. & ORS ..... Defendants
Through : None
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J.(Oral)
1.
The plaintiff has instituted the present summary suit under
Order XXXVII of the CPC, praying inter alia for recovery of a sum of
`49,92,857/- along with interest and costs.
2. Counsel for the plaintiff submits that summons were issued in
the suit in the prescribed format, vide order dated 23.12.2014,
returnable before the Joint Registrar on 20.2.2015. On 20.2.2015,
proof of service had been filed. However, the tracking report of the
summons sent by speed post had not been filed. As a result, the case
was adjourned by the learned Joint Registrar for 16.3.2015.
3. On 16.3.2015, it has been recorded that the defendants have
been duly served and the affidavit of service was filed by the plaintiff
with a tracking report. Despite the same, none had appeared on
behalf of the defendants and nor have they filed their memo of
appearance within the time prescribed under Order XXXVII of the CPC.
Same is the position even today.
4. The matter was passed over on the first call to await the
presence of the counsel for the defendants. Neither the defendants
nor their counsel is present on the second call.
5. Counsel for the plaintiff states that in view of the aforesaid
position, the plaintiff is entitled to a decree under Order XXXVII Rule
2(3) of the CPC.
6. The plaintiff claims to be a registered partnership firm and the
present suit has been instituted by Mr. Darshan Kumar Garg, one of
the partners of the said firm. A copy of the certificate of registration
of the plaintiff firm has been filed with the list of documents. The
plaintiff firm is stated to be engaged in the business of sale and
purchase of all kinds of yarns. In the year 2012, the defendants No.2
& 3 representing themselves to be the Managing Director and Director
of the defendant No.1 company had approached the plaintiff for
sale/purchase of yarn. It is averred in the plaint that all the sale and
purchase transactions between the plaintiff and the defendants were
conducted through a contract based on certain terms and conditions as
contained in the invoices raised by the plaintiff. It was agreed
between the parties that the plaintiff would supply goods to the
defendant No.1 and the price of the goods would be paid within eight
days from the date of dispatch and in case of any default/delay in
payment, interest would be charged @ 24% per annum till the entire
payment is received by the plaintiff. It is stated by learned counsel for
the plaintiff that the defendants No.2 & 3 had offered a personal
guarantee for the payments to be made by the defendant No.1.
7. Learned counsel for the plaintiff states that the defendant No.1
through the defendant No.3, had duly acknowledged in writing a
legally enforceable debt of `73,11,719/-, as per the ledger account
maintained by the plaintiff, as on 31.3.2013. In support of the said
submission, reliance is placed on the invoices raised by the plaintiff on
the defendant from time to time and collectively filed with the list of
documents at pages 15 to 55. It is stated that the copies of the
invoices that have been filed with the list of documents are certified
copies obtained from the court of the learned ACMM, Meerut, before
whom the plaintiff's complaint case against the defendants under
Section 138 of the Negotiable Instruments Act, 1881 is pending
adjudication. He draws the attention of the Court to the statement of
account in respect of the defendant No.1 company maintained by the
plaintiff in due course of business for the period w.e.f. 1.4.2012 to
31.3.2013, whereunder as on 22.3.2013, a sum of `73,11,719/- has
been shown as lying to the credit to the plaintiff. Further, learned
counsel draws the attention of the Court to the statement of account
in respect of the defendant No.1 maintained by the plaintiff firm for
the financial year commencing from April, 2013 to 10.2.2014 that
shows an opening balance of `73,11,719/- and a closing balance of
`49,92,857/-.
8. It is stated on behalf of the plaintiff that the defendant No.1 had
paid a sum of `18.50 lacs to the plaintiff during the financial year
commencing from April, 2013 to 10.2.2014, as reflected in the
statement of account. The details of the payments received by the
plaintiff have also been set out in a tabulated statement contained in
para 6 of the plaint. It is submitted that on 15.6.2013, the plaintiff had
purchased goods worth `14,07,507/- from the defendant No.1.
Subsequently, amounts to the tune of `38,645/- and `9,00,000/- had
become due and payable by the defendant No.1 on account of rate
difference and interest respectively and after adding the said amounts
and reducing the sum of `14,07,507/- from the outstanding amount
due and payable by the defendant No.1 to the plaintiff, a sum of
`40,92,857/- was due and payable by the defendants to the plaintiff
as on 31.12.2013. Adding to the interest component of `9,00,000/-
calculated @ 24%p.a. to the aforesaid amount, the total amount due
and payable by the defendants to the plaintiff comes to `49,92,857/-.
9. Learned counsel submits that in acknowledgement of the
aforesaid debt, the defendant No.1 had issued two cheques for
`24,95,000/- and `24,97,857/- in favour of the plaintiff, as per details
mentioned in para 8 of the plaint. When the aforesaid cheques were
deposited by the plaintiff on 2.1.2014, in its bank account maintained
with the Standard Chartered Bank at Barakhamba Road, Delhi, the
same were returned unpaid with the remark "insufficient funds". The
certified copies of the Return Memos dated 4.1.2014, issued by the
plaintiff's bank have been filed alongwith the list of documents.
Immediately thereafter, the plaintiff had issued a legal notice dated
13.1.2014 to the defendants calling upon them to pay a sum of
`49,92,857/- along with interest @ 24% p.a., being the total amount
of the dishonoured cheques, failing which the defendant was warned
that the plaintiff would be compelled to initiate the legal proceedings
against them. A copy of the legal notice dated 13.1.2014 along with
the proof of dispatch through speed post and the tracking report
obtained from the postal authorities has been filed alongwith the list of
documents.
10. It is submitted by learned counsel for the plaintiff that neither
did the defendants respond to the aforesaid notice, nor did they pay
the value of the dischonoured cheques. Resultantly, the plaintiff had to
file a complaint case against the defendants under Section 138 of the
Negotiable Instruments Act, 1881, which is pending consideration
before the learned Metropolitan Magistrate at Meerut, UP and is listed
on 27.4.2015, for summoning the defendants. Simultaneously, the
plaintiff has filed the present summary suit under Order XXXVII CPC
for a decree of the admitted amount, based on the two dischonoured
cheques issued by the defendant No.1, totalling to `49,92,857/-.
11. As noted above, despite the summons being served upon the
defendants as prescribed in law, they have failed to enter appearance
by filing their memo of appearance. As a result, the averments made
in the plaint being unopposed are deemed to be correct. The Court
has perused the averments made in the plaint and examined the
documents filed by the plaintiff and is satisfied that the plaintiff is
entitled to a decree of `49,92,857/-, along with interest @12% p.a.
from the date of institution of the present suit, till realization. The
plaintiff is also held entitled to costs of the suit. Decree sheet be
drawn up accordingly.
12. The suit is disposed of, along with the pending application.
13. File be consigned to the record room.
(HIMA KOHLI)
JUDGE
APRIL 08, 2015
sk/mk/rkb
