M/S Amit Sales Corporation Pvt Ltd vs M/S Amg Infrastructure Pvt Ltd
2017 Latest Caselaw 6681 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CS(COMM) 283/2016

      M/S AMIT SALES CORPORATION PVT LTD ..... Plaintiff
                    Through Mr. T.K. Tiwari, Advocate

                          versus

      M/S AMG INFRASTRUCTURE PVT LTD                     ..... Defendant
                   Through None

%                               Date of Decision: 23rd November, 2017

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN

                          JUDGMENT

MANMOHAN, J: (Oral)

1. Present suit has been filed for recovery of Rs. 1,11,04,928/- along with pendente lite and future interest @ 24% per annum.

2. It is the case of the plaintiff that the plaintiff-company deals in business of supply of steel pipes and tubes of various types and had been supplying goods/materials to the defendant-company for its various projects as per its demand from time to time since 23 rd April, 2012 against purchase orders.

3. It is further stated in the plaint that the plaintiff-company had been maintaining a running account for the goods supplied and the payments received from the defendant-company and as per the said running account, a sum of Rs. 89,84,570/- is outstanding as on 8th

January, 2014 against the defendant-company for the goods supplied by the plaintiff.

4. Mr. T.K. Tiwari, learned counsel for the plaintiff-company states that despite making several requests, the defendant-company on one pretext or the other kept on postponing the same and has failed to pay the outstanding dues till date.

5. Learned counsel for the plaintiff states that pursuant to follow ups by the plaintiff-company, the defendant-company admitted its liability and issued three cheques towards part payment of the aforesaid outstanding amount. However, on account of false promises of payment by the defendant-company, the plaintiff did not present the first two cheques due to which their validity of presentation expired. He further states that the third cheque for a sum of Rs. 50,00,000/- was presented for encashment by the plaintiff on 2 nd May, 2013. However, the same was returned unpaid.

6. Mr. Tiwari, learned counsel for the plaintiff-company states that the defendant thereafter issued another cheque dated 1st February, 2014 towards part payment of the outstanding amount of Rs. 89,84,570/- . However, the same was returned unpaid vide return memo dated 26th April, 2014 with remarks "Funds Insufficient".

7. He states that the plaintiff-company has already instituted a criminal complaint under Section 138 of the Negotiable Instruments Act in respect of the said cheque and the same is pending adjudication before the Noida Courts, Uttar Pradesh.

8. Learned counsel for the plaintiff states that the plaintiff- company also issued a legal notice dated 9th May, 2014 calling upon

the defendant to clear the outstanding admitted amount of Rs. 89,84,570/-. However, despite service of the said notice, the defendant has neither replied to the same nor cleared the outstanding dues till date.

9. Since the defendant did not enter appearance despite service, it was proceeded ex-parte vide order dated 4th September, 2017.

10. The plaintiff has filed its evidence by way of affidavit in support of the averments made in the suit and inter alia relied upon the following documents:-

(i) Ex. PW1/1 is the copy of Board Resolution dated 29th May, 2014 duly authorising Mr. Amit Gupta to lead evidence in respect of the present suit.

(ii) Mark A are copies of the purchase orders issued by the defendant-company upon the plaintiff for the period between 16th October, 2012 to 6th January, 2014.

(iii) Ex.PW1/2 (Colly) are the copies of the Tax Invoices raised by the plaintiff upon the defendant for the period between 7th December, 2012 to 8th January, 2014.

(iv) Ex.PW1/3 is the copy of the statement of ledger account maintained by the plaintiff.

(v) Ex. PW1/4 (Colly) are copies of the cheques issued by the defendant in favour of the plaintiff- company in lieu of part payment of the admitted dues.

(vi) Ex. PW1/5 is a copy of the criminal complaint along with annexures and evidence filed by the plaintiff under Section 138 of the Negotiable Instruments Act.

(vii) Mark B is a copy of the legal demand notice dated 9th May, 2014.

11. Having perused the paper book, this Court is of the opinion that the defendant placed several purchase orders upon the plaintiff pursuant to which tax invoices were issued by the plaintiff and corresponding entries to this effect were made in the ledger account maintained by the plaintiff.

12. This Court is of the view that the outstanding amount of Rs. 89,84,570/- payable by the defendant is clearly reflected in the ledger account maintained by the plaintiff. Further, the act of the defendant in issuing cheque dated 1st February, 2014 for a sum of Rs. 25,00,000/- in part payment of the aforesaid outstanding amount and the same being dishonoured vide return memo dated 26th April, 2014 with remarks "Funds Insufficient" are clearly indicative of the defendant's mala fide intent of attempting to evade the payments due and payable to the plaintiff-company.

13. Also, despite issuance of a legal notice dated 9th May, 2014 by the plaintiff calling upon the defendant to clear the outstanding dues, the defendant has neither replied to the same nor cleared the outstanding dues till date.

14. As the averments in the plaint have not been rebutted by the defendant in spite of ample opportunities given by this Court, they are deemed to have been admitted.

15. Consequently, the present suit is decreed for Rs. 1,11,04,928/- in favour of the plaintiff company and against the defendant along with pendent lite and future interest @ 8% per annum on the

outstanding amount along with costs incurred by the plaintiff. The cost shall amongst others include the lawyers' fees as well as the amounts spent on purchasing the court fees. Registry is directed to prepare a decree sheet accordingly.

MANMOHAN, J NOVEMBER 23, 2017 rn