Bangalore District Court
) Sri.Hafeez Ur Rahman vs ) S.A.Rawther Species (P) Ltd on 20 April, 2023
IN THE COURT OF THE LXXXIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AT BENGALURU CITY [CCH-84]
:Present:
Ravindra Hegde,
M.A., LL.M.,
LXXXIII Addl. City Civil & Sessions Judge,
Bengaluru
Dated on this 20th day of April 2023
COM.O.S.No.1026/2018
Plaintiffs 1) Sri.Hafeez Ur Rahman,
aged about 76 years,
S/o late Abdul Azeez.
2) Dr.Zarina Begum,
aged about 70 years,
W/o Mr. Hafeez Ur Rehman.
3) Sri.Shoaib Ur Rahman,
aged about 43 years,
S/o Hafeez Ur Rahman.
Plaintiffs No.1 to 3 are permanently
residing at:
Hulkode Estate, Arehally, Belur Taluk,
Hassan District-573101.
Smt. Nakhat Mubeen @ Nakhat Fathima,
4) aged about 49 years,
W/o Mohammed Asif Mubeen.
Smt. Dr.Shabana pasha @ Shabana Fathima,
5) aged about 46 years,
W/o Mr.Vasif Pasha.
Plaintiffs No.4 and 5 are residing at:
C/o Mr.Hafeez Ur Rehman,
Hulkode Estate, Arehally, Belur Taluk,
Hassan District-573101.
Plaintiffs No.1,2,4 and 5 are represented
hereby by the PA holder, the plaintiff No.3
herein.
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CT 1390_Com.O.S.1026-2018 Judgment.doc
(By Sri C.M.P, Advocate )
// versus //
Defendants 1) S.A.Rawther Species (P) Ltd.,
(Govt. Recognized Export House)
No.17, II Floor, 4th Main,
IV Block, Goraguntepalya,
Tumkur Road,
Bengaluru-560022.
Represented by its Director
Sri.Anish M.Rawther @
Anees Mohammed Rawther.
2) Sri.Anish M. Rawther @
Annes Mohammed Rawther,
NO.17, II Floor, 4th Main,
IV Block, Goraguntepalya,
Tumkur Road,
Bengaluru-560022.
(By Sri.R.R, Advocate)
[
Date of Institution of the : 05/02/2018
suit
Nature of the suit : Recovery of Money
Date of commencement of : -
recording of the evidence
Date on which the : 20/04/2023
Judgment is pronounced.
: Year Month/ Day/s
Total duration /s s
05 2 15
SUMMARY JUDGMENT UNDER ORDER 37 OF CPC
This suit is filed by the plaintiffs praying to direct the
defendants to pay Rs.1,04,16,576/- with interest @18% per
annum from the date of suit till payment. The plaintiff has
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filed this suit under Order XXXVII of CPC seeking summary
judgment.
2. The case of plaintiff in brief is as under:
The plaintiff No.2 is the wife of plaintiff No.1 and
plaintiffs No.3 to 5 are their children and they are planters
and growers engaged in the cultivation of coffee, pepper etc.
The defendant No.1 is Private limited company carrying of
business of importing and exporting spices and the defendant
No.2 is its director and authorized signatory. The defendants
were regularly purchasing the pepper from the plaintiff. The
plaintiff has agreed to sell 25,000 KGs of pepper to the
defendants and consignment agreement was entered on
19/3/2016. Plaintiffs have sold 25,000 KGs of ungarbled
black pepper on consignment basis. 5000 KGs of pepper
were sold in the month of September 2016 at Rs.703/- per
KG and the balance quantity of 20000 KGs of ungarbled
pepper was sold in the month of October 2016 at Rs.683/-
per KG. In total the defendants were liable to pay
Rs.1,71,75,000/- with regard to entire 25000 KGs of pepper
sold to the defendants. For payment, defendants have made
part payment of Rs.61,71,355/- between 2/4/2016 to
30/12/2016. With regard to the balance of Rs.1.1 crore the
defendants took 3 months time for payment and have given
cheques for due amount and have also given cash voucher.
In March 2017, defendants approached plaintiffs and paid
Rs.20 lakhs and for payment of balance of Rs.90 lakhs they
took time and offered to handover additional cheques and
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stated that till subsequent cheques are encashed, earlier
cheques could be retained by the plaintiffs. For Rs.90 lakhs,
defendants have given 5 cheques in the name of plaintiffs
No.1 to 5 for different amount. These cheques when presented
for encashment were dishonoured with endorsement 'funds
insufficient' and when the plaintiffs approached the
defendants, the 2nd defendant requested plaintiffs to re-
present the cheques, but on representation, cheques are
returned as 'drawers signature differs'. The defendants have
deliberately failed to clear the amount due to the plaintiffs,
inspite of several reminders and requests and therefore the
plaintiffs got issued legal notice on 18/11/2017 calling upon
the defendants to pay Rs.90 lakhs. The plaintiffs have also
issued legal notice on 26/9/2017 for dishonour of the
cheques and the defendants issued reply in which they have
taken evasive and unreasonable contention. The notice of the
1st plaintiff is not replied by the defendants. Since the cheque
amount are not paid, the plaintiffs have filed case for the
offence under Section 138 of the N.I.Act and the same is
pending in Belur Court. Thereafter, plaintiffs together got
issued legal notice on 18/11/2017 seeking payment of Rs.90
lakhs with 18% interest and the notice is served and the
defendants, but they have not responded. By including
interest upto 16/1/2018 @18% which comes to
Rs.14,16,576/- and the notice charges of Rs.25,000/-, total
amount due from the defendants is Rs.1,04,16,576/-. For
recovery of this amount, the plaintiffs have filed this suit. It
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is stated that the defendants have acknowledged the debts
payable by them to the plaintiffs by issuing cheques and the
suit is maintainable under Order 37 Rule 1 and 2 of CPC and
the plaintiffs have not claimed any relief which does not fall
within the ambit of Section XXXVII Rule 2. With these
averments, plaintiffs have filed the suit.
3. Since the suit is filed under Order XXXVII of CPC,
defendants were required to obtain leave to defend.
Accordingly, defendants after appearing before the court have
filed application in I.A.No.III seeking leave to defend. The
learned predecessor of this court by order dated 19/6/2019
has granted leave to defend to the defendants with condition
that the defendants shall deposit 50% of the claim amount
within 15 days. Therefore, leave to defend was given on
condition. However, plaintiffs have not deposited 50% of the
amount as per order of this court which is confirmed by the
Hon'ble High Court. Thereafter a memo was filed by the
plaintiffs on 14/11/2019 stating that as the defendants have
not complied conditions of leave to defend the decree is to be
passed in the suit as prayed. This memo is objected by the
defendants stating that there is Moratorium order passed by
the NCLT against defendant Company. Learned predecessor
of this court, after hearing both sides, has passed order on
7/3/2020 and dismissed the memo filed by the plaintiffs
dated 14/11/2019 to decree the suit, on the round that
Moratorium order is passed by NCLT against 1 st defendant.
This order of this court was challenged before the Hon'ble
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High Court in WP No.10975/2020 by the present plaintiffs.
Hon'ble High Court by its order dated 21/3/2022 has allowed
the writ petition and held as under:
"Order dated 7th March 2020 in Com.OS
No.1026/2018 on the file of LXXXIII Addl.City Civil
and Sessions Judge, Bengaluru is hereby quashed
and the trial court is directed to accept the memo
dated 14th November 2019 and pass appropriate
orders accordingly."
4. By this order, Hon'ble High Court has directed this
court to accept the memo dated 14/11/2019 and to pass
appropriate order. Against this order of Hon'ble High Court,
1st defendant has filed SLP (Civil) No.011019/2022 before
Hon'ble Supreme Court and learned counsel for the
defendants has repeatedly filed memo stating that SLP is
pending and also produced case status of the said case. Even
today, counsel for the defendant filed a memo stating that
SLP before Hon'ble Supreme Court is likely to be listed on
24.04.2023. However, there is no stay to the order of the
Hon'ble High Court passed in WP No.10975/2020. As such,
this case is proceeded, in view of Order of Hon'ble High Court.
5. Now the points that arise for my consideration, in
view of Memo dated 14.11.2020 are:
1. Whether the plaintiff is entitle for recovery of the
suit claim amount with interest as prayed?
2. What decree or order?
6. Perused records. Heard arguments by learned
counsel for plaintiff.
7. My answer to the above points are :
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Point No.1 : Partly in the affirmative.
Point No.2 : As per final order for the following:
REASONS
8. Point No.1: Case of the plaintiffs is that the
defendants have purchased 25,000 KGs of pepper from the
plaintiffs and in respect of the same, defendants were
required to pay Rs.1,71,75,000/- to the plaintiffs. According
to the plaintiffs, the defendants have paid Rs.61,71,355/-
initially and for balance Rs.1.1 crore they had issued 5
cheques, but subsequently they have paid Rs.20 lakhs and
again issued 5 cheques for payment of balance of Rs.90
lakhs. It is also plaintiff's case that Cheques were presented
for encashment but are dishonoured and after giving notice
the case under Section 138 of the N.I.Act are filed against the
defendants. According to the plaintiffs, legal notice was also
issued to the defendants on 18/11/2017 asking the
defendants to pay Rs.90 lakhs balance with interest @18%
per annum from 1/3/2017 till date of payment. However, the
defendants have not made payment. Balance is shown as
Rs.90 lakhs and the interest upto 16/1/2018 @18% per
annum is calculated as Rs.14,16,576/- and by including
notice charges of Rs.25,000/-, the plaintiff is seeking recovery
of Rs.1,04,67,576/- with interest @18% per annum.
9. Since, suit is filed under Order 37 of CPC,
defendants on service of summons have appeared before this
court and they have sought leave to defend the suit. This
court has granted leave to defend, on condition of depositing
50% amount and the said order is not complied. Thereafter,
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a memo was filed by the plaintiffs seeking decree as the
defendants have not complied with the order granting leave to
defend. Then the defendants have contended about NCLT
proceedings pending against the defendants. This court has
dismissed the Memo filed by plaintiffs as, NCLT proceedings
were pending and held that decree cannot be passed. Against
this order, plaintiffs have preferred Writ petition in WP
No.10795/2020 before the Hon'ble High Court and same is
allowed on 21/3/2022 and Hon'ble High Court has directed
this court to accept the memo dated 14/11/2019 and pass
appropriate order. Against this order, SLP is filed before the
Hon'ble Supreme Court. However, there is no stay order for
the proceedings of this suit. Hence this case is proceeded for
summary judgment.
10. Since, defendants have not complied with the order
granting leave to defend by depositing 50% of the claim
amount, there is no defence of the defendants before the
court. Therefore, plaint averments remained unchallenged.
The plaintiffs have produced documents to substantiate their
contention. The consignment agreement dated 19/3/2016
signed by the defendants show that the defendants have
received 25,000 KGs of ungarbled black pepper from the
plaintiffs by promising to make payment after settlement of
two weeks. The plaintiffs have also produced the cheques
issued by the defendants and also produced the cash
voucher. The cheques return memo are also produced to
show that the cheques given are dishonoured. Copy of the
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legal notice given to the defendants on dishonour of the
cheques, separately by the plaintiffs are also produced and a
legal notice dated 18/11/2017 issued by the plaintiffs to the
defendants seeking outstanding amount of Rs.90 lakhs with
18% interest is also produced. The reply notice given are also
produced to show that the notices are served. To the notices
issued by the plaintiffs separately after dishonour of the
cheques, defendants have given reply and copies of those
reply notices are also produced. In the reply notice,
defendants have stated about receipt of pepper consignment
from Spices world in the year 2015 and cheques were given as
security and has also stated about several payments made
and stated that the cheques given in good faith are misused
and it is breach of faith etc.
11. On looking to all these documents and on
considering the plaint averments which are not contested,
case of the plaintiffs is sufficiently established. Since present
suit is a summary suit and defendants failed to file their
defence after obtaining leave to defend, plaintiffs are entitle
for decree. Accordingly, on 14/11/2019 memo was filed
praying to decree the suit as prayed for. The memo has been
accepted by the Hon'ble High Court in WP No.10975/2020.
As such, as the memo is accepted, suit is to be decreed
against the defendants. Plaintiffs have claimed decree for Rs.
Rs.1,04,16,576/- which includes principal due amount of
Rs.90 lakhs, interest @18% amounting to Rs.14,16,576/- and
notice charges of Rs.25,000/-. As it is commercial transaction
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till the date of suit, interest as prayed @ 18% per annum can
be awarded. Though interest @18% is prayed by the plaintiff
even from the date of suit, by considering the interest
prevailing, it is proper to award interest @9% per annum from
the date of suit till realization of the entire amount.
Accordingly, plaintiffs are entitle for recovery of
Rs.1,04,16,576/- with interest @9% per annum from the date
of suit till realization of the entire amount. Accordingly, point
No.1 is answered partly in the affirmative.
12. POINT No.2 : For the discussion made on above
point, following order is passed:
ORDER
Suit of the plaintiffs is partly decreed with costs.
The defendants are jointly and severally liable and are directed to pay Rs.1,04,16,576/- to the plaintiffs with interest @9% per annum from the date of suit till realization of the entire amount.
Draw decree accordingly.
[Dictated to the Judgment Writer; transcript thereof corrected, signed and then pronounced by me, in the Open Court on this the 20th day of April 2023] [Ravindra Hegde] LXXXIII Additional City Civil Judge.
BENGALURU.
***