Delhi District Court
Sh. Naresh Bansal vs M/S. Marco Francesco Shoes (India) Pvt. ... on 20 January, 2020
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR, ADDITIONAL
DISTRICT JUDGE-04, CENTRAL, TIS HAZARI COURTS, DELHI
SUIT UNDER ORDER XXXVII CPC
Suit No. 619253/16
Sh. Naresh Bansal
Proprietor
M/s. Sri Balaji Sales Corporation
313/20B, Shop No. 6
Bansal Market, Inderlok
New Delhi-110035
Through his Attorney Holder
Mr. Pukhraj Bansal .....Plaintiff
VERSUS
1. M/s. Marco Francesco Shoes (India) Pvt. Ltd.
Through its Managing Director
S-363, First Floor
Greater Kailash-II
New Delhi-110048
Also at:
19/13, West Patel Nagar
New Delhi-110008
Also at:
C-40, Okhla Industrial Area, Phase-II
New Delhi-110020
Also at:
C-49, Indira Enclave
Neb Sarai
New Delhi-110068
2. Sh. Agnibesh Dasgupta
Director
M/s. Marco Francesco Shoes (India) Pvt. Ltd.
S-363, First Floor
Greater Kailash-II
New Delhi-110048
3. Sh. Amitava Chatterjee
Director
M/s. Marco Francesco Shoes (India) Pvt. Ltd.
S-363, First Floor
Greater Kailash-II
New Delhi-110048
4. M/s. Paolo Santini Warenvertriebs GmbH
S-363, First Floor
Greater Kailash-II
New Delhi-110048
5. Sh. Samdev Dasgupta
Authorized Signatory
M/s. Paolo Santini Warenvertriebs GmbH
S-363, First Floor
Greater Kailash-II
New Delhi-110048 .....Defendants
Date of Institution : 08.08.2016
Date of judgment reserved on : 20.01.2020
Date of judgment : 20.01.2020
JUDGMENT
SUIT UNDER ORDER XXXVII CPC FOR RECOVERY OF RS.10,16,000/- ALONGWITH PENDENTELITE AND FUTURE INTEREST AGAINST THE DEFENDANTS
1. The present suit is filed u/Order XXXVII CPC by the plaintiff praying for recovery of Rs.10,16,000/- which includes principal sum of Rs.8 lakhs in reference to cheque dated 27.03.2014. The plaintiff was represented by the defendants that they are importers and trader of good quality sport shoes for supply of which defendants has asked for advance payment. The goods had to be supplied by end of February 2013 with assurance to refund the money paid with interest @ 12% p.a on non supply of goods. Hence cheque dated 08.02.2013 bearing no. 061311 for a sum of Rs.6 lakh and cash for a sum of Rs. 2 lakh was handed over to defendant no. 1 and defendant no. 2 respectively. The receipt was sent vide E-mail dated 06.02.2013 to the plaintiff at the address [email protected]. Defendant no. 2 and 3 had issued a cheque of Rs.8 lakh dated 27.03.2014 bearing no. 103218 for assurance of such supply. However defendants failed to supply the goods despite service of legal notice dated 16.05.2014. The suit is based on cheque dated 27.03.2014. Hence plaintiff had prayed for the decree for the sum claimed alongwith pendentelite and future interest @24% p.a from the date of filing of the suit till realization of the same alongwith cost of the suit. Accordingly the plaintiff has prayed for decree of his suit.
2. Summons were sent on the defendants. The defendant no. 3 and 4 had failed to file appearance within prescribed period of 10 days after service on which judgment is already granted against the said defendants vide order dated 11.01.2017 for a sum of Rs.10,16,000/- with decree.
3. Defendant no. 1 and 2 had appeared through ld. Counsel on 19.04.2017. Leave to defend was also filed by defendant no.1 and 2 on 01.04.2017 alongwith application u/Sec. 5 of Limitation Act for condonation of delay in filing leave to defend. However no one has appeared on behalf of above defendants to argue on their applications.
4. Ld. Counsel for defendant no. 1 and 2 has not appeared despite service and which is recorded in order dated 22.05.2018 wherein the ld. Counsel for defendant has reported that his client had taken back their file. The report is in process for 22.05.2018 and the report is dated 22.02.2018. The report on defendant no. 1 for 08.10.2018 is received with the report dated 26.06.2018 that this premises was sealed about four years back. Another report on defendant no. 1 dated 15.01.2020 for 20.01.2020 mentions that there is no such firm by such name.
5. Parties are heard and record perused.
6. Heard. In such view of the matter it appears that defendant no. 1 and 2 are not interested to submit arguments on their leave to defend. They were duty bound to inform Court about their correct address. Keeping in view the Rule 7 of Order XXXVII CPC the defendants who not appeared is hereby proceeded ex-parte who are defendant no. 1 and 2. On such proceeding of ex-parte of the said defendants u/R. 11 of Order IX CPC it tantamounts to not filing of leave to defend as arguments are not submitted on the same. Therefore in view of judgment titled Kishan Bharwany v. V.P. Aggarwal 2002(97) DLT 723 the plaintiff is held entitled to judgment forthwith in joint and several liability against the defendant no. 1 and 2.
7. Defendant no. 5 was recorded served personally vide order dated 02.02.2019 and in this regard statement of Process Server was recorded in that defendant no. 5 was served personally on 02.03.2017. The report is Ex.P-1 on record. No appearance is filed by defendant no. 5 and in absence of the same then plaintiff is hereby held entitled to judgment under Sub-Clause (a) of Rule (6) of Rule 3 of Order XXXVII CPC. Hence judgment is hereby passed against the defendant no. 1, 2 and 5 u/Order XXXVII CPC for due sum of Rs.8 lakh only which is cheque amount in the cheque dated 27.03.2014. Pre-suit interest is not granted being not part of contract with the plaintiff. However pendentelite and future interest is granted to the plaintiff against all the defendants in joint and several liability @6% p.a. on due amount in view of fact that decree is already passed against defendant no. 3 and 4 vide order dated 11.01.2017.
8. Accordingly, suit of the plaintiff is decreed for a sum of Rs.8,00,000/- u/Order XXXVII CPC and pendentelite and future interest is allowed to the plaintiff and against defendant no. 1, 2 and 5 in joint and several liability @ 6% p.a. from the date of filing of the suit till the realization of the suit amount. Decree sheet be prepared accordingly.
File be consigned to the record room.
Digitally signed JOGINDER by JOGINDER
PRAKASH
Announced in the open Court PRAKASH NAHAR
on 20.01.2020. NAHAR Date: 2020.01.22
16:32:38 +0530
(JOGINDER PRAKASH NAHAR)
ADDL. DISTRICT JUDGE-04
CENTRAL/TIS HAZARI COURT/DELHI