Gajinder Loond vs Zedak Industries And Ors
2015 Latest Caselaw 5229 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      CS(OS) No.1389/2013

                                           Date of Decision: 21th July, 2015

IN THE MATTER OF
GAJINDER LOOND               .                              ..... Plaintiff
                       Through: Mr. Muneesh Malhotra, Advocate with
                       Mr. Achin Mittal, Advocate

                       versus

ZEDAK INDUSTRIES & ORS.                                   .... Defendants
                   Through : Defendants ex parte.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (Oral)

1. The plaintiff has instituted the present summary suit under Order

XXXVII CPC praying inter alia for recovery of a sum of `35,30,031/- against

the defendant, along with future and pendente lite interest @ 24% p.a.

2. The relevant facts of the case, as set out in the plaint, are that the

plaintiff has various business ventures in Delhi and the NCR region. He

provides state of the art technology to multi-national companies in poultry

business and makes retail supplies to various stores in the NCR region of

Delhi. In the year 2012, the plaintiff had decided to make forays in the

business of frozen meats and with the said idea, he decided to purchase

three vehicles (make : Mahindra Bolero) for transportation, distribution and

supply of the products in Delhi and the NCR region. For the said purpose,

the plaintiff had planned to install stainless steel containers and a

refrigeration system on the chassis of the aforesaid vehicles as per the

international standard and specifications.

3. Learned counsel for the plaintiff states that the defendant No.2 is the

sole proprietor of the defendant No.1/firm and it is the defendant No.3 (son

of the defendant No.2), who manages the day-to-day affairs of the

proprietorship firm. Defendant No.2 had gathered information about the

plaintiff‟s plans to install stainless steel containers and refrigeration systems

on the vehicles purchased by him and he represented to the plaintiff that

they were in the business of body manufacturing over delivery vehicles and

would be willing to undertake the said work for him. After some negotiations

that took place at the plaintiff‟s residence, the defendants had submitted two

quotations-cum-invoices, both dated 28.3.2012. The first invoice bearing

No.1102/3/ZI was raised by the defendants for fixing refrigeration units of

"Thermoking" make as per specifications, on the three Bolero vehicles @

`3,15,000/- per vehicle + taxes, totaling to a sum of `10,69,031/-. Based on

the said invoice, the plaintiff had placed a purchase order on the defendants

for purchasing three Thermoking refrigeration units and, as demanded, had

paid 100% advance against the said invoice, vide cheque No.200034 dated

4.4.2012 drawn on Indian Overseas Bank in favour of the defendant no.1.

The said cheque was duly cleared on 13.4.2012, as per a certificate dated

8.8.2013 issued by the plaintiff‟s banker, i.e., Indian Overseas Bank, Greater

Kailash, Part-II, New Delhi Branch, that has been filed along with the List of

Documents.

4. Coming to the second quotation-cum invoice No.1103/3/ZI dated

28.3.2012 prepared by the defendants for fabrication of refrigeration units

and stainless steel racks, as per the specifications that were agreed upon,

they quoted a sum of `12,11,569/- for undertaking the said job, which was

duly accepted by the plaintiff. At the time of placing the order, the plaintiff

had paid 50% advance of the performa invoice, to the defendants, i.e., a

sum of `6.00 lacs, vide cheque No.200038 dated 4.4.2012 drawn in favour

of the defendant no.1 and the said cheque was duly cleared on 10.4.2012,

as per the certificate dated 8.8.2013 issued by the plaintiff‟s banker, i.e.,

Indian Overseas Bank, Greater Kailash-II, New Delhi, that has been filed

along with the List of Documents. Sometime later, the defendants had

approached the plaintiff requesting for release of the balance payment raised

in the second invoice. Since completion of the fabrication work was getting

delayed, to avoid any further delay, the plaintiff had paid a sum of

`6,55,000/- to the defendants through five cheques drawn on Indian

Overseas Bank in favour of the defendant No.2 that were duly encashed in

the following manner :

        Sr.No. Amount (`)       Dates of        Dates of clearance
                                issuance           of cheques
           1.    4,00,000/-     16.7.2012            21.7.2012
           2.    45,000/-       25.10.2012          10.11.2012
           3.    1,00,000/-     1.12.2012            5.12.2012
           4.    75,000/-       1.1.2013              1.1.2013
           5.    35,000/-       4.1.2013              4.1.2013

5. The plaintiff claims that after receiving 100% payment against the two

invoices raised by the defendants, totaling to a sum of `23,24,031/- along

with the delivery of three vehicles to the defendants for fitment of the

refrigeration units, they started avoiding his telephone calls and failed to

adhere to various deadlines, as promised from time to time. The plaintiff

kept on approaching the defendants from time to time requesting them to

complete the fabrication work at the earliest and handover the three

vehicles, but to no avail. The defendants neither responded to the phone

calls made to them, nor to the e-mails sent to them. Finally, after much

persuasion by the plaintiff, the defendants provided the specifications of the

units and the stainless steel racks proposed to be installed on the vehicles,

on 1.3.2013, but even thereafter, they were unable to perform the required

work.

6. Getting worried on account of sheer lack of response from the

defendants, the plaintiff visited their Faridabad address, but to his surprise,

could not find the three Bolero vehicles parked there. It is stated that before

shifting the vehicles from the Faridabad address, the defendants did not give

any intimation to the plaintiff, much less seek his permission. After making

several enquiries, the plaintiff visited the defendants at their Ballabhgarh

address, where he found the three Bolero vehicles stationed, but without any

fabrication work undertaken for installing the refrigeration units and

stainless steel racks, as ordered. Left with no option, on 17.4.2013 with the

assistance of the local police, the plaintiff engaged a crane and had the three

Bolero vehicles towed and taken back to Delhi. At the time of lifting the

vehicles, the plaintiff discovered that the keys of the two of the vehicles had

been misplaced by the defendants, the batteries of two vehicles were

missing and one of the vehicles was being used by them for their personal

purposes. It has been stated by the plaintiff that for bringing the vehicles

back to Delhi, he had to spend a sum of `9,000/- to engage the services of a

crane. He had incurred a further sum of `5.00 lacs for getting the duplicate

car keys prepared, the missing batteries replaced and on account of the

delayed insurance and registration of the three vehicles.

7. Immediately after collecting the vehicles from the premises of the

defendants, the plaintiff served a legal notice dated 4.5.2013 calling upon

them to refund a sum of `23,24,031/- received in terms of the quotations-

cum-invoices raised on him and he further demanded a sum of `5.00 lacs

towards the damage caused to the vehicles, with an additional sum of

`50,000/- towards the loss of business and delay suffered by him. It is

submitted that the said notices that were dispatched through registered AD

post to the defendants at the addresses mentioned in the memo of parties,

were returned unserved.

8. Based on the aforesaid facts, the plaintiff has instituted the present

summary suit against the defendants praying inter alia for a decree of a sum

of `35,30,231/- along with the future and pendente lite interest.

9. In the course of arguments, Mr. Malhotra, learned counsel for the

plaintiff states that he may be permitted to confine the relief in the suit to

the payments made to the defendants through duly encashed cheques

issued from time to time, totaling to the undisputed sum of `23,24,031/-

along with interest.

10. Summons were issued in the suit on 8.10.2013, returnable on

15.1.2014. It was noted in the order dated 15.1.2014 that the process

issued against all the defendants at the addresses mentioned in the memo of

parties were received back unserved with a report stating „left the place‟. In

these circumstances, permission was sought by the counsel for the plaintiff

to effect service on the defendants by substituted mode. Thereafter, the

plaintiff had filed an application under Order V Rule 20 CPC for effecting

service on the defendants through publication, which was duly allowed, vide

order dated 29.5.2014. Pursuant thereto, defendants No.1 & 2 were served

through publication in the daily newspapers circulated in Faridabad and the

defendant No.3 was served through publication in the daily newspaper

circulated in Jharkhand. Despite service, none of the defendants have

entered appearance in the suit or filed their memo of appearance within the

stipulated period of ten days; nor did any counsel appear on their behalf.

11. Taking note of the aforesaid facts, vide order dated 20.3.2015, the

learned Joint Registrar had directed that the case be placed before the Court

on 21.5.2015. None had appeared for the defendants on the said date or

even thereafter, nor were any steps taken by them to contest the suit. The

position remains the same till date. The defendants having failed to contest

the suit by entering appearance within the time prescribed in Order XXXVII

Rule 3 CPC, learned counsel for the plaintiff states that his client is entitled

to a decree under Order XXXVII Rule 2(3) CPC.

12. The Court has heard the learned counsel for the plaintiff, carefully

examined the averments made in the plaint and perused the documents filed

by the plaintiff. The plaintiff has narrated the circumstances in which he had

issued seven cheques in favour of the defendants totaling to a sum of

`23,24,031/-, towards purchase and fabrication of the refrigeration units and

the stainless steel racks on the three vehicles handed over to them. The

documents filed by the plaintiff include seven certificates dated 8.8.2013

issued by his banker, i.e., Indian Overseas Bank, certifying encashment of

the seven cheques on different dates. The said certificates substantiate the

submission made by the counsel for the plaintiff that the defendants had

duly received amounts from the plaintiff from time to time to undertake the

fabrication work on the three vehicles. As per the plaintiff, despite receiving

100% payment, the defendants had failed to undertake the fabrication work

by installing the refrigeration systems on the three Bolero vehicles provided

by the plaintiff. The plaintiff has also filed two Performa Invoices dated

28.3.2012 issued by the defendants no. 1 and 2, copies of the invoices

raised by the authorized dealer of Mahindra & Mahindra Ltd., i.e., Skyline

Automobiles from whom he had purchased the three vehicles, the technical

specifications forwarded by the defendant No.3 on behalf of defendants No.1

& 2 for undertaking the fabrication work, the bill of `9,000/- dated

17.4.2013 raised by the agency that had provided crane services to the

plaintiff for towing the three vehicles from Ballabhgarh to Delhi, the bills

raised on the plaintiff by the agency that had undertaken the repair work on

the three vehicles and the cover notes for the vehicles issued by the

Insurance company. The aforesaid documents when read collectively ratify

the averments made in the plaint to the effect that the plaintiff is entitled to

recover a sum of `23,24,031/- along with interest from the defendants on

account of their failure to install the refrigeration units on the three Bolero

vehicles, as per the Invoices raised by them.

13. Having regard to the facts and circumstances of the present case, as

set out hereinabove, which have remained unrebutted by the defendants,

who have failed to enter appearance, the same are accepted as true and

correct. Accordingly, the present suit is decreed against the defendants No.1

& 2 and the plaintiff is held entitled to recover a sum of `23,24,031/- from

them, w.e.f., the date of encashment of the respective cheques referred to

in paras 3 & 4 of the plaint, along with pendente lite and future interest

payable @ 12% per annum. If the defendants No.1 & 2 pay the decreetal

amount to the plaintiff within three months from today, then the interest

payable on the principal amount will be maintained @ 12% p.a., failing

which the interest payable shall be raised to 18% per annum, till realization.

The plaintiff is also awarded costs of the suit.

14. Decree sheet be drawn accordingly.

15. The suit is disposed of.

(HIMA KOHLI) JUDGE JULY 21, 2015 sk/ap