Delhi High Court
Honda Logistics India Pvt. Ltd vs National Haulers & Ors. on 8 September, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 8th September, 2017
+ CS(COMM) 1350/2016
HONDA LOGISTICS INDIA PVT. LTD ..... Plaintiff
Represented by: Mr. Rajesh Baweja,
Advocate
versus
NATIONAL HAULERS & ORS. .....Defendants
Represented by: None.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
IA 2534/2017 (u/O V R. 20 CPC)
1. By this application the plaintiff had sought substituted service to the
defendants; however since the defendants have already been served and not
appearing, learned counsel for the defendant does not press the present
application.
2. Application is dismissed as withdrawn.
CS(COMM) 1350/2016
1. The plaintiff company has instituted the present summary suit against
the defendants, praying inter alia for a decree of ₹1,07,98,654/- (Rupees One
crore seven lakhs ninety eight thousand six hundred and fifty four only)
along with interest @ 18% p.a. from the date of issuance of cheque in
question, that is, 31st March, 2016.
2. Briefly stated, plaintiff is a private limited company engaged inter alia
in the transportation of bikes and spare parts of Honda Motorcycle and
Scooter India Pvt. Ltd. Defendant no.1 is a family concern and its affairs are
mainly run by and for the benefit of defendant no. 2 and 3. Defendant no. 2
and 3 are proprietor/partners/authorized representatives of defendant no. 1
and are duly responsible for the day to day affairs and working of defendant
no. 1.
3. It is the case of the plaintiff that the defendants approached the
plaintiff for the work of trailer manufacturing and after discussions, plaintiff
initially placed upon the defendants Purchase Order bearing no. 740 dated
10th December, 2012 for fabrication and manufacturing of 26 Motor Cycle
Carrier Double Axle Trailers TR-08, 18.75 mtr as per details and terms and
conditions of the Purchase Order for a total sum of ₹ 3,64,00,000/- (Rupees
three crore sixty four lakhs). Besides other terms and conditions in the
aforesaid Purchase Order, there was a specific clause for delivery and
installation, fixing time within which the trailers were to be delivered and
installed. In accordance therewith, if the trailers were not delivered within
90 days, any delay thereafter would attract liquidated damages of 1% per
week. The aforesaid Purchase Order was duly accepted by the defendants on
20th December, 2012 and was signed by defendant No.2 on behalf of the
defendants.
4. The aforesaid Purchase Order was later amended by Purchase Order
bearing no. 740-1 dated 29th March, 2013 with requirement of additional axle
for a total sum of ₹ 3,95,20,000/- (Rupees three crores ninety five lakhs and
twenty thousand only) @ ₹ 15,20,000/- (Rupees fifteen lakhs twenty
thousand only) per trailer.
5. The defendants had only supplied 14 trailers out of a total of 26
trailers. Defendants have acknowledged and confirmed a balance of ₹
1,07,98,654/- (Rupees One crore seven lakhs ninety eight thousand six
hundred and fifty four only) due by them in favour of plaintiff vide its
acknowledgment of liability/balance confirmation letter dated 31 st March,
2015 signed by defendant No.3 on behalf of defendants. The defendants,
while acknowledging their liability, send the advance payment vide post
dated cheque dated 31st March, 2016 for a sum of ₹ 1,07,98,654/- signed by
defendant No.3 on behalf of defendants.
6. The plaintiff, after intimating the defendants through the letter dated
9th May, 2016 duly served upon the defendants through Registered AD post,
courier and email, presented the aforesaid cheque bearing no. 004342 dated
31st March, 2016 drawn on HDFC Bank A/c no. 00902560001989 for a sum
of ₹1,07,98,654/- (Rupees One crore seven lakhs ninety eight thousand six
hundred and fifty four only) for realization of the amount of cheque with its
banker namely Mizuho Bank Ltd., DLF Capitol Point, Baba Kharag Singh
Marg, New Delhi within three months from the date of cheque. However,
the said cheque was dishonoured due to "funds insufficient" vide return
memo outward clearing dated 19th May, 2016.
7. Plaintiff also initiated criminal proceedings, that is, a complaint case
under section 138 & 141 of the Negotiable Instrument Act, 1881 read with
Section 420 of Indian Penal Code, 1860 against the defendants.
8. Plaintiff served upon the defendants a legal notice dated 2nd June,
2016 vide Registered Post and courier on 4th June 2016 under Section 138 of
the Negotiable Instruments Act, 1881. Despite service of notice and filing of
criminal complaint, the defendants failed to pay the outstanding amount.
Hence, the present suit.
9. Summons in the suit were issued to defendants under Order XXXVII
CPC on 30th September, 2016. The defendants were served through courier
on 17th May, 2017. However, the defendants did not enter appearance within
the stipulated period as specified under Order XXXVII CPC.
10. Since the defendants have failed to enter appearance, the allegations as
briefly narrated above, are deemed to be admitted on the part of the
defendants in view of Order XXXVII, Rule 2(3) CPC. Thus, it stands
established that defendants have defaulted in refunding the advance received.
Thus, the plaintiff is entitled to a decree of ₹1,07,98,654/- (Rupees One crore
seven lakhs ninety eight thousand six hundred and fifty four only) as claimed
in the plaint with interest thereon.
11. Accordingly, the suit is decreed in favour of the plaintiff and against
the defendants jointly and severally directing them to pay a sum of
₹1,07,98,654/- (Rupees One crore seven lakhs ninety eight thousand six
hundred and fifty four only) to the plaintiff along with interest @ 9% p.a.
with effect from 19th May, 2016, the date when the cheque in question was
dishonoured, till realization along with costs quantified as ₹1,07,000/- being
the court fee and ₹25,000/- towards litigation expenses. Decree sheet be
drawn accordingly.
(MUKTA GUPTA)
JUDGE
SEPTEMBER 08, 2017
'ga/Anu'
