Delhi District Court
M/S Scj Plastics Ltd vs M/S Unicore Cables on 15 October, 2011
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI,
ADDITIONAL SENIOR CIVIL JUDGE (SOUTH),
SAKET COURTS, NEW DELHI.
CS No. 517/2011
I.D No. 02406C0085942011
M/s SCJ Plastics Ltd.,
F3/1011, Okhla Industrial Area,
PhaseI, New Delhi 110 020.
...Plaintiff
versus
M/s Unicore Cables
X42, PhaseII,
Okhla Ind. Area, New Delhi110020.
...Defendant
DATE OF INSTITUTION : 15.04.2011
DATE OF RESERVING JUDGMENT : Not Reserved.
DATE OF PRONOUNCEMENT : 15.10.2011
SUIT FOR RECOVERY OF Rs.22,500/ (RUPEES TWENTY
TWO THOUSAND FIVE HUNDRED ONLY) UNDER ORDER
XXXVII OF CPC.
JUDGMENT
1. This is a suit filed under Order XXXVII of The Code of Civil Procedure (in short "CPC") by plaintiff for recovery of liquidated sum of Rs.22,500/ along with pendente lite and future interest @ 24% per CS No. 517/2011 Page 1 of 5 annum and costs. After the summons of the suit were issued to defendant in the prescribed form as defined under Order 37 (2) (Sub Rule 2) CPC, defendant has not entered its appearance.
2. The defendant remained absent despite service of summons upon it at X42, PhaseII, Okhla Ind. Area, New Delhi110020.
3. I have heard learned counsel for plaintiff at considerable length and have perused the record.
4. The suit has been filed through Shri Deepak Kumar, Marketing Executive, who is duly authorized to sign, verify, institute and pursue the present suit against the defendant on behalf of plaintiff by means of a resolution dated 16.08.2010 passed by the Board of Directors of the plaintiff company in his favour. The defendant had running account with the plaintiff. On 29.01.2008, 15.03.2008 & 02.07.2008 vide invoices no. 5610, 6469 & 1611 respectively, the defendant purchased from the plaintiff master batches worth Rs.18,680/ on credit of 60 days. As per condition stipulated in the invoices and also as per Section 61 (2) of The Sale of Goods Act, on delayed payment, the defendant is liable to pay interest @24% per annum from the date the payment became due till realization. It is stated that against the purchase of goods vide said three invoices, a balance payment of Rs. 13,849/ is still due, which defendant has failed to make to plaintiff CS No. 517/2011 Page 2 of 5 despite repeated demands by plaintiff. It is further stated that the defendant is also liable to pay a sum of Rs. 8,651/ as interest @ 24% per annum from the date of expiry of said credit period of 60 days till date. The plaintiff sent a legal notice dated 02.08.2010 to defendant by speed post. The said legal notice was received back to plaintiff unserved with remark 'LEFT'. The suit is based on invoices no. 5610, 6469 & 1611 of Rs.18,680/, which is placed on record by plaintiff hence the same is covered within the provisions of Order 37 CPC and is also tendered within limitation.
5. There is no relief claimed by plaintiff which does not fall within the ambit of the provisions of Order, 37 CPC.
6. It is useful to refer the relevant provisions of law which are as under: Order XXXVII Rule 3(1) CPC.
(1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such services, enter an appearance either in person or by pleader and, in either case, he shall file in court an address for service of notice on him.
Order XXXVII Rule 2(3) CPC.
(3) The defendant shall not defend the suit referred to in sub rule(1) unless he enters an appearance and in default of his CS No. 517/2011 Page 3 of 5 entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the Hon'ble High Court from time to time by rules made in that behalf and such decree may be executed forthwith.
7. In view of the above mentioned provisions of law, it is clear that if the defendant makes default in entering its appearance within ten days from the date of service of summons upon it, the allegations as leveled in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. As per record, the defendant stood served with the summons of the suit in prescribed proforma on 02.08.2011. Till date, no appearance has been entered into by the defendant and accordingly the allegations leveled in the plaint are deemed to be admitted by it, entitling the plaintiff to a decree straightway.
8. The plaintiff has placed on record extracts of Board Resolution dated 16.08.2010, bill/invoice no. 5610, 6469 & 1611 of Rs.18,680/, statement of account and notice U/O 37 CPC dated 2.8.2010. The documents placed on record by the plaintiff shows that defendant entered in a commercial transaction with the plaintiff company. The defendant failed to pay the outstanding dues to the plaintiff company. CS No. 517/2011 Page 4 of 5 The details of account of defendant for the period 1.4.2008 to 31.3.2009 shows that as on 02.07.2008, the defendant was liable to pay a sum of Rs.13,849/ as outstanding amount.
9. The plaintiff has claimed pendentelite & future interest @ 24% per annum. Plaintiff has produced nothing on record to show its entitlement for such exhorbitant rate of interest i.e. 24% per annum. In these circumstances, the plaintiff is entitled for interest only at the prevailing bank rate. Since the defendant entered in a commercial transaction with the plaintiff company, therefore, in the facts & circumstances of the case, the defendant is directed to pay interest @ 12% per annum.
10. Hence, in the given circumstances as well as the submissions made by counsel for plaintiff, suit of the plaintiff is decreed with costs against defendant. Defendant is directed to pay a sum of Rs. 22,500/ to the plaintiff with interest @ 12% per annum from the date of filing of the suit till its realization. Decreesheet be prepared. File be consigned to record room.
(Announced in open Court (Raj Kumar Tripathi)
on 15.10.2011) Additional Senior Civil Judge (South)
Saket Courts, New Delhi.
CS No. 517/2011 Page 5 of 5