M/S Maxgrow Pte Ltd. (M/S Sarmon ... vs M/S Cheminova Industries (P.) Ltd
2015 Latest Caselaw 3451 Del

$~A-
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of Decision: 29.04.2015

+     CS(OS) 4427/1992

      M/S MAXGROW PTE LTD.
      (M/S SARMON PTE LTD.)             ..... Plaintiff
                    Through Mr.Anil Airi, Mr.Ravi Krishan
                            Chandna, Ms.Sadhna Sharma, Mr.
                            Aman Madan, and Mr. Gaurav
                            Seth, Advocates.
                    Versus

      M/S CHEMINOVA INDUSTRIES (P.) LTD. .... Defendant
                  Through   None.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. The present suit is filed under Order 37 CPC seeking a decree of recovery for USD 2,78,616.00 equivalent to Rs.86,35,088.80/-. Unconditional leave to defend was granted to the defendant vide judgment dated 05.03.2002.

2. The basis of the present suit is supply of goods/raw material from the plaintiff. The plaintiff is said to be a private limited company incorporated under the laws of Singapore. The suit is filed seeking recovery of dues based on 9 invoices totaling USD 2,78,616. It is averred that the bills of lading have also been filed annexed as Exhibit B to the plaint. It is further stated that in respect of goods supplied from time to

time, the defendant has accepted the bills of exchange drawn on them by the plaintiff. The bills of exchange were presented for payment on their respective due dates. But the defendant failed and neglected to honour the same. It is urged that the defendant has admitted the amount in the present suit. They had written to RBI for grant of permit for payment to the plaintiff in US Dollars. On the said written request of the defendant, RBI had issued permit from time to time for making payment of the aforesaid invoices. Copy of the permits has been exhibited as Exhibit D to the plaint. The details of the permits are given. The letters addressed to the Reserve Bank of India by the defendant have also been exhibited as Exhibit 'E'. Reliance is placed on letter dated 07.04.1989 sent by the defendant to the plaintiff stating that RBI has not yet granted extension. Further on 26.04.1989 another telex was received from the defendant to state that the bills are being cleared shortly. It is also urged that the defendant have admitted their debt and hence the suit was filed under Order 37 CPC.

3. The defendant have filed their written statement. They have taken preliminary objections that the plaintiff is not a juristic person and the plaint is not signed and verified by an appropriate person and that the suit is barred by limitation. On merits, the defendant have stated that they have not received the goods. They have not denied execution of the bills of exchange but claimed that the plaintiff did not deliver the goods. The invoices and bills of lading have also been denied. It is stated that as far as the permits of RBI are concerned, it is customary to apply to RBI to

remit foreign exchange as and when the goods are received. Hence, mere issuance of exchange permits does not establish the claim of the plaintiff.

4. Based on the pleadings of the parties, the following issues were framed on 12.12.2003.

(i) Whether the plaintiff is a duly incorporated company having its registered office at Singapore and has a place of business in India? OPP

(ii) Whether the suit instituted by the plaintiff is within time? OPP

(iii) Whether the plaint has been signed, verified and instituted by duly authorized persons? OPP

(iv) Whether the plaintiff supplied and delivered the goods as mentioned in para 6 to the defendant? OPP

(v) Whether the nine Bills of Exchange had been issued without any consideration? OPD

(vi) Whether the plaintiff is entitled to the amount claimed in the Suit? OPP

(vii) Whether the plaintiff is entitled to interest? If so, at what rate and for what period? OPP

(viii) Relief."

5. The plaintiff in support of his case has examined Mr. Bharat Raj Popat, PW-1 and Sh. Thuraisingam, PW-2 and has exhibited 69 documents as exhibits PW-1/1 to PW-1/69. After completion of the plaintiff's evidence, the defendant filed the affidavit of K.K.Kohli as DW-1. The said witness never appeared in the witness box nor tendered

his affidavit. The said witness has subsequently expired. Thereafter, no evidence has been filed. The Joint Registrar on 08.09.2014 closed the evidence of the defendant. On 17.11.2014 this court granted last opportunity to the defendant to file its evidence by way of affidavit failing which the evidence of the defendant was to be closed. The defendant did not do the needful.

6. I will first deal with issue No.1 which reads as follows:-

(i) Whether the plaintiff is a duly incorporated company having its registered office at Singapore and has a place of business in India? OPP

7. The plaintiff has exhibited and proved the certificate of incorporation as Ex.PW-1/2. PW-2 has duly stated that the plaintiff is a private limited company incorporated in the year 1982 in the name of M/s Sarmon PTE Limited and this name was changed to M/s. Maxgrow PTE Limited. Certificate of incorporation has been exhibited as Ex.PW-1/2. In view of the above, the issue No.1 is answered in favour of the plaintiff.

8. Issue No.2 reads as follows:-

(ii) Whether the suit instituted by the plaintiff is within time? OPP

9. PW-1 in his evidence by way of evidence has exhibited acknowledgments of the defendant. A confirmation letter dated 22.03.1991 duly signed by Mr.K.K.Kohli of the defendant has been marked as Ex.PW-1/69. Ex.PW-1/69 clearly confirms the balance consideration as on 31.12.1989 and confirmed on 22.03.1991 for USD 603,113.49. Hence, the suit filed in 1992 is well within the limitation.

10. Issue No.3 reads as follows:-

(iii) Whether the plaint has been signed, verified and instituted by duly authorized persons? OPP

11. The plaint is signed and verified by Mr.Bharat Raj, Managing Director of the plaintiff. Resolution dated 01.09.1992 has been proved by PW-1 as Ex.PW-1/1. Hence the said issue is answered in favour of the plaintiff.

12. Issues No.4 & 6 read as follows:-

(iv) Whether the plaintiff supplied and delivered the goods as mentioned in para 6 to the defendant? OPP

(vi) Whether the plaintiff is entitled to the amount claimed in the Suit? OPP"

13. As far as the issues No. 4 and 6 are concerned, the plaintiff has duly proved the invoices. PW-1 has proved the supporting documents of the shipment and the documents received as Ex.PW-1/3 to Ex.PW-1/36. The defendant accepts bills of exchange drawn on the plaintiff. When these bills of exchange were presented for payment on their respective dues dates, they were dishonoured. These bills of exchange have been marked as ExPW-1/40 and Ex.Pw-1/41 and P-1 to P-6. As per PW-1, bills have been cleared from the customs authority and all the bills of lading and shipping documents have been duly received by the defendant and utilized by the defendant. On the written request of the defendant RBI permitted payment in dollars. RBI permits have been exhibited as PW-1/42 to 53. The Mumbai Port Trust has confirmed by its

communication dated 17.07.2006 the delivery of various items against various invoices to the defendant which have been marked as Ex.PW- 1/60 to 1/61.

14. In my view the plaintiff has clearly proved the delivery of goods to the defendant.

15. As far as issues No.5 is concerned, no evidence has been led by the defendant and the issue is answered against the defendant.

16. Issue No.7 reads as follows:-

(vii) Whether the plaintiff is entitled to interest? If so, at what rate and for what period? OPP

17. As far as interest part is concerned, the plaintiff would be entitled to interest from the date the bills of exchange were dishonoured. The plaintiff has claimed interest @ 14% p.a. Nothing has been mentioned about the basis for claiming interest @ 14% p.a. Keeping in view the market condition, I award interest @ 9% p.a. to the plaintiff.

18. The suit is accordingly decreed for USD 2,78,616.00 with interest @ 9% p.a. from the date of dishonor of the respective bills of exchange till the date of filing of the suit. The plaintiff shall also be entitled to pendente lite interest @ 9% per annum from the date of the filing of the suit till recovery. The plaintiff shall also be entitled to costs.

19. The suit stands disposed of.

20. Pending applications, if any, also stand disposed of.

JAYANT NATH, J.

APRIL 29, 2015/rb