Madras High Court
M/S.Rain Industries Limited vs M/S.Anand Cements on 29 April, 2022
C.S.No.194 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 29.04.2022
CORAM:
THE HON`BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.S.No.194 of 2008
M/s.Rain Industries Limited,
Rep. by its Asst. General Manager (Marketing),
Mr.S.Guruswamy,
No.144, North Usman Road,
T.Nagar, Chennai – 600 017. ... Plaintiff
Vs.
M/s.Anand Cements,
Rep. by its Proprietor,
Mr.C.Sridhar,
No.54, Karuvadaikuppam Main Road,
Vasantha Nagar, Muthialpet,
Pondicherry – 605 003. ... Defendant
Prayer: Plaint filed under Order XXXVII Rule 1 of O.S. Rules, High Court,
Madras and Order VII Rule 1 R/W Order XXXIV Rule 1 of CPC, prays for
a Judgment and Decree against the Defendant:
a) For a preliminary mortgage decree against the defendants directing
them to pay the decreetal amount of Rs.16,03,053.77 with further interest at
1/10
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C.S.No.194 of 2008
24% per annum from the date of plaint on or before the date to be fixed by
this Court, failing which to permit the plaintiff to bring the schedule
mentioned property to sale by public auction and appropriate the sale
proceeds towards the decretal amount and in the event of the such sale
proceeds being insufficient to satisfy the decretal amount to pass a personal
decree against the defendant in respect of the balance amount;
b) For the cost of the suit;
c) For other relief or reliefs as may be deemed fit and proper in the
circumstances of the case and thus and render justice.
For Plaintiff : Mr.M.Santhanaraman
For Defendant : Set exparte
JUDGMENT
This suit has been filed by the plaintiff for the following reliefs:
a) For a preliminary mortgage decree against the defendants directing
them to pay the decreetal amount of Rs.16,03,053.77 with further interest at
24% per annum from the date of plaint on or before the date to be fixed by
this Court, failing which to permit the plaintiff to bring the schedule
mentioned property to sale by public auction and appropriate the sale
proceeds towards the decretal amount and in the event of the such sale
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C.S.No.194 of 2008
proceeds being insufficient to satisfy the decretal amount to pass a personal
decree against the defendant in respect of the balance amount;
b) For the cost of the suit;
c) For other relief or reliefs as may be deemed fit and proper in the
circumstances of the case and thus and render justice.
2.The brief facts of the case, as averred by the plaintiff in the plaint
are as follows:
(i)A Public Limited Company by name M/s.Priyadarshini Cements
Ltd. has been taken over by them with all its assets and liabilities by
amalgamation by order dated 04.08.2004 passed in C.P.Nos.35 and 36 of
2004, on the file of Hon'ble High Court, Andhra Pradesh. Accordingly, the
plaintiff is entitled to recover the amount due to the said Priyadarshini
Cement Ltd. in its own name.
(ii)The defendant was appointed as dealer of the said
M/s.Priyadarshini Cement Ltd. presently merged with the plaintiff based on
the application submitted by the defendant herein on 22.07.1999 for
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C.S.No.194 of 2008
marketing the product of the plaintiff. As per the terms and conditions, the
defendant had furnished bank guarantee for a sum of Rs.5 lakhs through
Karur Vysya Bank, Pondicherry Branch in favour of the plaintiff towards
security for due remittance of sale price besides depositing a sum of
Rs.30,000/-.
(iii).Based on the orders placed by the defendant, the plaintiff used to
supply cement to the defendant by raising invoice therefor. The upper
credit limit granted to the defendant by the plaintiff was initially Rs.10.5
lakhs, which was subsequently reduced to 5.5 lakhs. As per the terms and
conditions of the invoice, the defendant is supposed to remit the amounts of
the stocks received by them forthwith receipt of the stocks and the payment
received in arrears will attract interest on the amount due @ 24% per
annum.
(iv)Though the defendant had been paying the amount for the stocks
received by him then and there at one point of time between May and July
2002, the defendant represented to the plaintiff that he has bulk order for
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C.S.No.194 of 2008
cement and requested the plaintiff to supply about 600 tons of cement
valuing Rs.17,00,000/- which was supplied by the plaintiff to the defendant.
The defendant has issued 8 cheques for a total sum of Rs.17,00,000/- to the
plaintiff towards the stocks lifted by him. When those cheques were
presented for encashment those were returned for want of funds. When the
plaintiff confronted the defendant about the return of cheques, the defendant
urged the plaintiff to bear with him as he was in financial crunch and also
deposited the title deeds in respect of his properties situated in R.S.No.75/1,
74/1, Cad.No.1501 part, 1501B, situated in Thottootu Kalavapet, Saram
Village, Oulgaret Commune Panchayat, Pondicherry measuring about 3168
sq.ft. more fully described in the schedule hereunder with the plaintiff at
Chennai under covering letter dated 28.08.2002 with intent to create
mortgage thereon by way of deposit of Title Deeds to secure the amounts
due by him to the plaintiff.
(v)After giving credit to the payments made by the defendant by
balance amount as of 31.10.2002 was Rs.12,53,396/-. The plaintiff was
therefore, constrained to invoke the bank guarantee furnished by the
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C.S.No.194 of 2008
defendant for a sum of Rs.5 lakhs on 31.10.2002 and the said amount of
Rs.5 lakhs was duly adjusted towards part satisfaction of the amount due by
the defendant. Thus as of 31.10.2002 after giving credit to this amount of
Rs.5 lakhs realized through bank guarantee, the defendant was due and
liable to pay the balance amount of Rs.7,53,396/-.
(vi)The plaintiff was also constrained to adjust a sum of Rs.30,000/-
being the security deposit made by the defendant with the plaintiff and the
interregnum the defendant made a payment of Rs.53,280/- and both
Rs.30,000/- and Rs.53,280/- were duly adjusted towards the amount due by
the defendant. Accordingly, as of 20.08.2007 the defendant was due on
liable to pay a sum of Rs.16,03,053.77 which amount the defendant did not
pay inspite of the plaintiff repeated requests and reminders. Hence the
present suit.
3.Heard the learned counsel for the plaintiff and perused the materials
available on record.
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C.S.No.194 of 2008
4.Though the defendant was served as early as on 03.04.2008, no
written statement was filed by the defendant and hence, the defendant was
set ex-parte and ex-parte evidence was ordered by this Court on 01.07.2016.
PW1 viz., A.Rengarajan has filed proof affidavit in his chief examination
and marked the following documents in support of the case of the plaintiff:-
Exhibits produced on the side of the plaintiff:
S.No. Exhibits Date Description
1 P1 11.08.2016 Certified copy of the Resolution
2 P2 29.09.1976 Certified copy of the Sale Deed registered
as Document No.573/1976
3 P3 30.11.1978 Certified copy of the Sale Deed registered
as Document No.1257/1978
4 P4 14.03.1990 Certified copy of Judgment in
O.S.No.241/1983 on the file of the
Principal Sub Judge at Pondicherry.
5 P5 14.10.1993 Original Partition Deed registered as
Document No.2988/1993 at SRO,
Ulavarkarai
6 P6 04.05.1999 Copy of Certificate of Incorporation of
the plaintiff with Memorandum of
Association
7 P7 04.06.2002 Duplicate copy of invoice
8 P8 05.06.2002 Duplicate copy of invoice
9 P9 05.06.2002 Duplicate copy of invoice
10 P10 05.06.2002 Duplicate copy of invoice
11 P11 05.06.2002 Duplicate copy of invoice
12 P12 05.06.2002 Duplicate copy of invoice
13 P13 06.06.2002 Duplicate copy of invoice
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C.S.No.194 of 2008
S.No. Exhibits Date Description
14 P14 06.06.2002 Duplicate copy of invoice
15 P15 10.06.2002 Duplicate copy of invoice
16 P16 10.06.2002 Duplicate copy of invoice
17 P17 10.06.2002 Duplicate copy of invoice
18 P18 10.06.2002 Duplicate copy of invoice
19 P19 12.06.2002 Duplicate copy of invoice
20 P20 12.06.2002 Duplicate copy of invoice
21 P21 12.06.2002 Duplicate copy of invoice
22 P22 18.07.2002 Duplicate copy of invoice
23 P23 18.07.2002 Duplicate copy of invoice
24 P24 18.07.2002 Duplicate copy of invoice
25 P25 18.07.2002 Duplicate copy of invoice
26 P26 18.07.2002 Duplicate copy of invoice
27 P27 19.07.2002 Duplicate copy of invoice
28 P28 19.07.2002 Duplicate copy of invoice
29 P29 19.07.2002 Duplicate copy of invoice
30 P30 19.07.2002 Duplicate copy of invoice
31 P31 20.07.2002 Duplicate copy of invoice
32 P32 20.07.2002 Duplicate copy of invoice
33 P33 20.07.2002 Duplicate copy of invoice
34 P34 20.07.2002 Duplicate copy of invoice
35 P35 28.08.2002 Original letter from defendant to plaintiff
evidencing deposit of title deeds
36 P36 23.09.2002 Original letter from defendant to plaintiff
admitting liability.
37 P37 24.10.2002 Duplicate copy of invoice
38 P38 26.10.2002 Duplicate copy of invoice
39 P39 04.08.2004 True copy of Order passed in C.P.Nos.35
and 36/2004 on the file of High Court,
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C.S.No.194 of 2008
S.No. Exhibits Date Description
Andhra Pradesh
40 P40 31.07.1996 Photo copy of Encumbrance Certificate
41 P41 08.01.2007 Original Encumbrance Certificate
42 P42 20.09.2007 Original Statement of Accounts
Witness examined on the side of the plaintiff:
PW1 - Mr.A.Rengarajan
5.On the side of the defendant, neither any document was placed nor
any witness was examined.
6.Considering the oral and documentary evidence, viz., Exs.P1 to 42
adduced by PW1 and in the absence of any oral or documentary evidence on
the side of the defendant, this Court is of the view that the plaintiff has
proved the suit claim and the suit may be decreed as prayed for.
Accordingly, the suit is decreed as prayed for. No costs.
29.04.2022
Index:Yes/No
Internet:Yes/No
Speaking order / Non-speaking order
pam
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C.S.No.194 of 2008
V.BHAVANI SUBBAROYAN, J.
pam
C.S.No.194 of 2008
29.04.2022
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