Delhi District Court
M/S Geodis Overseas Pvt. Ltd vs M/S Ultra Violet Inc on 2 December, 2011
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI,
ADDITIONAL SENIOR CIVIL JUDGE,
SAKET COURTS, NEW DELHI.
CS No. 210/2011
I.D No. 02406C0199952011
M/s Geodis Overseas Pvt. Ltd.,
having its registered office at
DLF Building No. 8, Tower A,
5th Floor, DLF City, PhaseII,
Sector25, Gurgaon, Haryana
Plaintiff
Versus
1. M/s Ultra Violet Inc.
Through its partners,
C406, First Floor, Defence Colony,
New Delhi 110 024.
2. Mr. Akhil Khanna,
Partner of M/s Ultra Violet Inc.
B4/54, Safdarjung Enclave,
New Delhi 110 029.
3. Mr. Virat Taneja,
Partner of M/s Ultra Violet Inc.
C406, First Floor, Defence Colony,
New Delhi 110 024.
Defendants
DATE OF INSTITUTION : 05.08.2011
DATE OF RESERVING JUDGMENT : 28.11.2011
DATE OF PRONOUNCEMENT : 02.12.2011
CS No. 210/2011 Page No. 1 of 7
SUIT UNDER ORDER XXXVII OF CPC FOR RECOVERY OF
RS. 1,28,444.15 (RUPEES ONE LAC TWENTY EIGHT
THOUSAND FOUR HUNDRED FORTY FOUR AND FIFTEEN
PAISA ONLY) WITH PENDENTI LITE AND FUTURE
INTEREST
JUDGMENT
1. This is a suit filed under Order XXXVII of The Code of Civil Procedure (in short "CPC") by plaintiff company for recovery of liquidated sum of Rs. 1,28,444.15 with pendente lite and future interest @ 18% per annum from the date of invoices till the date of payment and costs of the suit. After the summons of the suit were issued to defendants in the prescribed form as defined under Order 37 (2) (Sub Rule 2) of CPC, defendants have not entered their appearances.
2. The defendants no. 1 and 3 remained absent despite service of summons of the suit upon them at C406, First Floor, Defence Colony, New Delhi 110 024. Defendant no. 2 remained absent despite service of summons of the suit upon him at B4/54, Safdarjung Enclave, New Delhi 110 029.
3. I have heard learned counsel for plaintiff at considerable length and have perused the record.
CS No. 210/2011 Page No. 2 of 7
4. The plaintiff is a company incorporated and registered under The Companies Act having its registered office at DLF Building No. 8, Tower A, 5th Floor, DLF City, PhaseII, Sector 25, Gurgaon, Haryana and engaged in the business of providing Freight forwarding and allied service solutions to its customers. The suit is instituted through Shri Samdarshi Lamba, Dy. Manager Legal & Company Secretary of plaintiff company, who has been authorized to sign and verify the plaint vide resolution dated 05.03.2010. Defendant no. 1 is a partnership firm engaged in the business of export and import. Defendant no. 2 and 3 are partners of defendant no 1. It is stated that plaintiff had been rendering freight forwarding and logistic services to defendant no. 1 and had commercial dealings with it. The defendant no. 1 through its authorized representative interacted with the executives/officer of the plaintiff for placing orders for different jobs in due course of their business. The plaintiff had raised an invoice No. DLDI1008457 dated 27.9.2010 of Rs. 87,226.90 for the commercial services Job No. IDAES1001991 and another invoice No. DLDI1008871 dated 06.10.2010 of Rs. 41,217.25 for the commercial servicesJob No. IDAES1002085. The defendant no. 1 issued a cheque bearing No. 528240 dated 15.10.2010 of Rs. 85,482.00 drawn on Bank of Baroda, E28, Saket, New Delhi as part payment towards CS No. 210/2011 Page No. 3 of 7 the invoice No. DLDI1008457 with an assurance that the said cheque shall be honoured. The plaintiff presented the said cheque to its bank Royal Bank of Scotland, Hansalaya Building, 15, Barakhamba Road, Delhi but the same was returned unpaid by the bank of plaintiff on 29.10.2010 with the endorsement "Funds Insufficient". It is further stated that an amount of Rs. 1,28,444.15 is still outstanding and defendants are legally bound to make the payment as defendant no. 1 had availed the commercial services of plaintiff for its commercial needs. The plaintiff requested the defendants to make the payment of outstanding amount of above invoices but they failed to make the payment of Rs. 1,28,44.15. Plaintiff issued a legal notice dated 27.11.2010 through speed post. The suit is based on invoice No. DLDI1008457 dated 27.09.2010 of Rs. 87,226.90 for commercial services Job No. IDAES1001991 and invoice No. DLDI1008871 dated 6.10.2010 of Rs. 41,217.25 for commercial services Job No. IDAES1002085, which are 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 XXXVII CPC.
CS No. 210/2011 Page No. 4 of 7
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 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 defendants make default in entering their appearances within ten days from the date of service of summons upon them, the allegations as leveled in the plaint shall be deemed to be admitted and the plaintiff CS No. 210/2011 Page No. 5 of 7 shall be entitled to a decree. As per record, defendants no. 1 and 3 stood served with the summons of the suit in prescribed proforma on 03.11.2011. The defendant no. 2 stood served with the summons of the suit in prescribed proforma on 13.10.2011 and 11.11.2011. Till date, no appearance has been entered into by the defendants and accordingly the allegations leveled in the plaint are deemed to be admitted by them, entitling the plaintiff to a decree straightway.
8. The plaintiff has placed on record the statement of account of defendant company, invoice no. DLDI108457 dated 27.9.2010, cheque no. 528240 dated 15.10.2010 of Rs. 85,482/ Bank memo dated 27.10.2010, invoice no. DLDI1008871 dated 6.10.2010, Airway bill No. HAWB IDAE1002085, certificate of origin, shipping bill no. 2633716 dated 1.10.2010 and legal notice dated 27.11.2010. The documents placed on record shows that defendants failed to make the payment of invoice no. DLDI1008457 dated 27.09.2010 of Rs. 87,226.90 and invoice No. DLDI1008871 dated 6.10.2010 of Rs. 41,217.25 raised by plaintiff for the commercial services rendered and performed by plaintiff to defendants. A cheque bearing No. 528240 dated 15.10.2010 of Rs. 85,482.00 drawn on Bank of Baroda, E28, Saket, New Delhi issued by defendant no. 1 as part payment towards the invoice No. DLDI1008457 was also returned unpaid with the CS No. 210/2011 Page No. 6 of 7 remarks "Funds Insufficient". From the documents, it is seen that an amount of Rs. 1,28,444.15/ is due and payable by the defendants to the plaintiff. The defendants failed to clear the outstanding dues of the plaintiff despite availing its services. Defendant no.2 Mr. Akhil Khanna and defendant no. 3 Mr. Virat Taneja being the partners of defendant no. 1 M/s Ultra Violet Inc are jointly and severely liable to pay the outstanding dues.
9. Hence, in the given circumstances as well as the submissions made by counsel for plaintiff, suit of the plaintiff is decreed with costs against defendants. Defendants no. 1, 2 and 3 are jointly and severely directed to pay a sum of Rs. 1,28,444.15/ to the plaintiff with interest @ 8% per annum from the date of filing of the suit till the date of realization of decreetal amount. Decreesheet be prepared. File be consigned to record room.
(Announced in open Court (RAJ KUMAR TRIPATHI)
on 2.12.2011) ADDITIONAL SENIOR CIVIL JUDGE
SAKET COURTS, NEW DELHI
CS No. 210/2011 Page No. 7 of 7