Delhi High Court
Seo Pal vs Quality Rice Exports Pvt Ltd on 29 August, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 410/2016
SEO PAL ..... Plaintiff
Through: Mr. Sanjay Relan with
Mr. Sushant Dahiya,
Advocates.
versus
QUALITY RICE EXPORTS PVT LTD ..... Defendant
Through: Mr. Aslam with Mr. Balbir
Singh, Advocates.
% Date of Decision: 29th August, 2017
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J:
I.A. No. 3621/2017
1. Present application has been filed under Order XIII-A read with
Section 151 CPC.
2. The relevant facts of the present case are that the plaintiff is
running a sole proprietorship firm under the name and style of
"Banarsi Dass & Sons" as a grain merchant and commission agent
from its office at 2376, Mandi Extension, Narela, Delhi-110040.
3. The defendant is a registered company having its registered
office at Nial Bye-Pass Road, Patran, Distt. Patiala, Punjab.
4. On 5th April, 2014, the plaintiff/applicant filed the present suit
for recovery of money due against the supplies of paddy made
between 11th May, 2014 and 10th August, 2014 to the defendant
company. It is the plaintiff's case that the defendant company has
paid a sum of Rs. 1,25,00,000/- against the total supplies of
Rs. 2,87,51,689.05, thus leaving a balance of Rs. 1,62,51,689.05/- as
due and payable by the defendant. The plaintiff also claims interest
@Rs.1.80% per month that is 21.6% per annum on the amount due.
5. The defendant was duly served on 17th June, 2016 but as it
failed to file the written statement within the prescribed period, this
Court struck off the right of the defendant to file the written statement
vide order dated 2nd February, 2017.
6. The defendant also neither sought inspection of the documents
nor filed the affidavit of admission and denial as contemplated under
Order XI Rule 4 CPC as applicable to the commercial disputes.
7. Learned counsel for the plaintiff/applicant states that the
plaintiff/applicant has filed the copies of the invoices raised against
the defendant and GR receipts. He further states that the defendant
was served with a legal notice dated 10th March, 2016, i.e., prior to
filing of this suit. He contends that the defendant has acknowledged
its liability vide a statement of account duly signed on defendant's
behalf by one of its Director, Sh. Vineet which shows a debit balance
of Rs. 1,62,51,689.05/-.
8. He lastly states that as per knowledge of the plaintiff/applicant,
State Bank of Patiala has taken over the possession of the security/
factory/land and building of the defendant company and has initiated a
process of auctioning the said assets of the defendant company.
9. Learned counsel for the defendant states that the plaintiff is not
entitled to any relief in the present application filed under Order 8
Rule 10 CPC. In support of his submission, he relies upon the
judgment of the Supreme Court in C.N. Ramappa Gowda Vs. C.C.
Chandregowda (Dead) By LRs and Another, (2012) 5 SCC 265
wherein it has been held as under:-
"25. We find sufficient assistance from the apt
observations of this Court extracted hereinabove which
has held that the effect [Ed.: It would seem that it is
the purpose of the procedure contemplated under
Order 8 Rule 10 CPC upon non-filing of the written
statement to expedite the trial and not penalise the
defendant.] of non-filing of the written statement and
proceeding to try the suit is clearly to expedite the
disposal of the suit and is not penal in nature wherein
the defendant has to be penalised for non-filing of the
written statement by trying the suit in a mechanical
manner by passing a decree. We wish to reiterate that
in a case where written statement has not been filed,
the court should be a little more cautious in proceeding
under Order 8 Rule 10 CPC and before passing a
judgment, it must ensure that even if the facts set out in
the plaint are treated to have been admitted, a
judgment and decree could not possibly be passed
without requiring him to prove the facts pleaded in the
plaint."
10. Having heard learned counsel for the parties, this Court is of the
view that the present case is a commercial dispute as defined under the
Commercial Courts, Commercial Division and Commercial Appellate
Division of the High Courts Act, 2015 (for short "Act, 2015"), as it is
a dispute related to sale of goods as ordinary transaction of merchants/
traders. Also, as the issues have not been framed and oral evidence is
yet to be recorded, the present application is maintainable.
11. Order XIII-A of the Act, 2015 empowers this Court to pass a
summary judgment, without recording evidence, if it appears that the
defendant has no real prospect of defending the claim.
12. In the opinion of this Court, the defendant has no real prospect
of defending the claim as it has neither filed its written statement nor
denied the documents of the plaintiff or filed reply to the present
application.
13. This Court is also of the view that the judgment of the Supreme
Court in C.N. Ramappa Gowda (supra) is inapplicable to the present
case as the present application has been filed under Order XIII-A of
the Act, 2015 and not under Order 8 Rule 10 CPC.
14. At this stage, the learned counsel for the defendant states that he
be given an opportunity to file reply to the present application.
However, a perusal of the order sheets reveals that twice copies of the
present application had been served upon the learned counsel for
defendant and he had twice stated before the Court that he did not
wish to file any reply to the present applicati on. The relevant orders
dated 21st April, 2017, 03rd July, 2017 and 04th July, 2017 are
reproduced hereinbelow:-
"Order dated 21st April, 2017
IA No. 3621/2017 (for passing of the summary judgement) in
CS(COMM) 410/2016
Ld. counsel for defendant accepts notice of the
application. Copy of the application supplied today in the court.
Reply be filed within four weeks from today with advance copy
to other side. Rejoinder, if any, be filed within next one week
with advance copy to other side. Put up for completion of
pleadings on the application on 3 rd July, 2017.
Order dated 03rd July, 2017
IA No. 3621/2017 (For passing of the summary judgment in
the suit)
Learned counsel for the defendant submits that he does
not wish to file the reply and shall address the arguments
straightway. In view thereof, the matter be placed before the
Hon'ble Court for further directions on the date fixed.
Order dated 04th July, 2017
I.A. 3621/2017
Learned counsel for the plaintiff is directed to supply
another copy of the application to learned counsel for the
defendant during the course of the day.
Since learned counsel for the defendant does not wish to
file a reply-affidavit, list the present application for hearing and
disposal on 28th August, 2017."
15. Further, there is a statement of accounts duly acknowledged and
signed for and on behalf of the defendant by one of its Director Sh.
Vineet, which shows an admitted debit balance of Rs.1,62,51,689.05/-
payable to the plaintiff.
16. However, this Court is of the view that the plaintiff is not
entitled to pendente lite and future interest @Rs.1.80% per month, i.e.,
21.6% per annum as the said rate of interest is usurious. Keeping in
view the bank rate of interest, the defendant is directed to pay
pendente lite and future interest @ 9% per annum.
17. Consequently, the present suit is decreed for
Rs. 1,62,51,689.05/- along with pendente lite and future interest @9%
per annum simple interest from the date of legal notice dated 10th
March, 2016 till realisation of the suit amount and along with cost of
the suit. Registry is directed to prepare a decree sheet accordingly.
MANMOHAN, J
AUGUST 29, 2017
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