Bombay High Court
M/S Vimal Intertrade Pvt. Ltd vs M/S Multiflex Lami Print Ltd. And 6 Ors on 31 January, 2020
Author: N.J. Jamadar
Bench: N.J. Jamadar
1/9 4-COMSS-149-2015-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL SUMMARY SUIT NO. 149 OF 2015
M/s. Vimal Intertrade Private Limited ]
A company duly registered under the provisions ]
of the Indian Companies Act, 1956 ]
having it's registered office at C-310, ]
Shyam Kamal, Agarwal Market, Vile Parle (East) ]
Mumbai - 400 057 ]
Through its General Manager and Authorized ]
Representative Mr. Bhavesh Chimanlal Shah ].. Plaintiff
Vs.
1. M/s. Multiflex Lami Print Limited ]
a company duly registered under the provisions ]
of the Indian Companises Act, 1956, ]
having it's office at 340, Kalindas Udyog ]
Bhavan, Prabhadevi, Mumbai-400 025 ]
and having it's factory premises at ]
Plot No. D 54 to D 59, MIDC Industrial Area, ]
Mahad, Dist. Raigad, Maharashtra - 402301. ]
]
2. Mr .Anil Kundanlal Dang ]
Managing Director of ]
M/s. Multiflex Lami Print Limited ]
Having his address at 10, Plam Springs, ]
Near Chandan Cinema, Juhu, ]
Mumbai-400 049. ]
]
3. Mr.Sanjay Dang ]
Authorized signatory of ]
M/s. Multiflex Lami Print Limited ]
Having his address at 1513-15-15, ]
Samaratha Angan III, B Wing, ]
New Link Road, Andheri (W), ]
Mumbai-400 053. ]
]
4. Mr.Bindesh Shah ]
Shraddha Talekar PS
2/9 4-COMSS-149-2015-J.doc
Authorized Signatory of ]
M/s. Multiflex Lami Print Limited ]
Having his office address at 903/4, ]
Rivera Towers, 10th floor, B-Wing, ]
Lokhandwala Complex, Kandivali (East) ]
Mumbai. ]
]
5. Mr.Amrit Kumar Agrawal ]
Director of M/s. Multiflex Lami Print Limited ]
Having his address at k-21/14A, Upper Gr.Flr. ]
Model Town III, Delhi-110 009. ]
]
6. Mr.Sajid Siraj Malik ]
Director of Multiflex Lami Print Limited ]
Having his address at 702, Vastu, 07th floor, ]
B.J. Road, Bandstand, Bandra (West), ]
Mumbai-400 050. ]
]
7. Mr. Phootermal Pukhraj Surana ]
Director of M/s. Multiflex Lami Print Limited ]
Having his addressed at A-8, Purshotam Nagar, ]
Jarimari Mandir Marg, Bandra (West), ]
Mumbai-400 050. ].. Defendants
Mr.Paras N. Vira for plaintiff.
None for defendants.
CORAM : N.J. JAMADAR, J.
DATE : 31ST JANUARY 2020
ORAL JUDGMENT :
1. Heard the learned counsel for the plaintiff.
2. The learned counsel for the plaintiff has tendered the original documents for the perusal of the Court.
3. The suit is taken up for ex-parte decree.
Shraddha Talekar PS 3/9 4-COMSS-149-2015-J.doc
4. This commercial division summary suit came to be instituted for recovery of a sum of Rs.6,25,14,221.80, as claimed in the particulars of the claim at Exh.'G' annexed to the plaint along with interest @ 18% per annum based on the invoices raised to evidence sale and delivery of the goods by the plaintiff to the defendants, who committed default in payment of the price of the goods.
5. The material averments in the plaint can be summarized as under :-
(a) The plaintiff is a company registered under the Indian Companies Act, 1956. It deals in the business of sale and distribution of various types of chemicals and chemical raw material. The defendant No.1 is also a company registered under the Companies Act. Defendant No.2 is the Managing Director of defendant No.1. Defendant Nos. 3 and 4 are the authorized signatories of defendant No.1, whereas the defendant Nos.5 to 7 are the Directors of defendant No.1. Defendant Nos.2 to 7 are in control and management of the business and day-to-day affairs of defendant No.1-Company.
Shraddha Talekar PS 4/9 4-COMSS-149-2015-J.doc [b] The defendant No.1 had placed orders for purchase of various grades of metlocence plastic polymer with the plaintiff on various dates from 29 th March 2012 to 21st May 2012. The plaintiff had sold and delivered the goods in accordance with the purchase orders by raising 24 invoices from 31 st March 2012 to 21st May 2012. The delivery of the goods was acknowledged by the defendants under the lorry receipts. Few consignments were accepted by the defendants as a part of high seas sale. The defendants had made an initial payment of Rs.9,50,444/- which was adjusted towards part payment of the price of the goods sold under invoice No.011188, dated 31 st March 2012. In order to cover the difference in the rate of foreign exchange rate in connection with the sale and delivery of the goods as a part of high seas sale, the plaintiff issued debit notes for a sum of Rs.16,82,437/-.
[c] Towards discharge of the liability, the defendants have drawn 39 cheques drawn on Khetwadi Branch of Bank of Baroda payable on various dates, from 14 th September 2012 to 10th November 2012.
Shraddha Talekar PS
5/9 4-COMSS-149-2015-J.doc
[d] On presentment, the cheques were returned unencashed on
account of insufficiency of funds. The plaintiff addressed a statutory notice on 20th December 2012. Despite service of the notice, the defendants failed to comply with the demand. Instead, the defendants issued a reply raising false contentions. Hence, the plaintiff is constrained to institute this suit for recovery of the unpaid price of the goods, as indicated above. [e] On 3rd October 2017, this Court was persuaded to grant an unconditional leave to defend the suit to defendant Nos.2 to 7 as triable issues were raised, as regards the liability of defendant Nos.2 to 7, who were sued in the capacity of being either Directors or authorized signatories of defendant No.1- company. The suit was directed to be transferred to the list of Commercial Causes with a direction to defendant Nos.2 to 7 to file their written statement within a period of four weeks from the date of the said order.
[f] The defendant No.1 was, however, granted leave to defend the suit, subject to depositing in this Court the principal amount of Rs.4,03,52,190/- within a period of 12 weeks from the date Shraddha Talekar PS 6/9 4-COMSS-149-2015-J.doc of the order. The defendant No.1 did not deposit the amount, subject to which the leave to defend was granted. Hence, by order dated 12th April 2018, the claim against defendant No.1 came to be decreed. The plaintiff was held entitled to a sum of Rs.6,25,14,221.80 together with interest on the principal amount of Rs.4,03,52,190/- at the rate of 12% per annum. [g] By a subsequent order dated 31st July 2019, this Court noted that the defendant Nos.2 to 7, to whom the unconditional leave to defend the suit was granted, have not filed any written statement and thus the suit was directed to be listed for an ex- parte decree against defendant Nos.2 to 7.
6. Mr. Bhavesh Chimanlal Shah, General Manager of the plaintiff has filed an affidavit in support of his claim. The plaintiff has also tendered a compilation of documents for perusal of the Court.
7. The claim of the plaintiff finds requisite support in the invoices (Exhibit No.B 1 to B 24), which incorporate the necessary conditions of sale and delivery of the goods. The delivery of goods is evidenced by the delivery notes and lorry receipts (Exh.'C1' to 'C16'). The Shraddha Talekar PS 7/9 4-COMSS-149-2015-J.doc claim that the plaintiff has raised debit notes to cover the difference in the foreign exchange rate in respect of part of high seas sale finds support in the debit notes (Exh.D1 to D8). The fact that the defendants had drawn cheques payable on Khetwadi Branch of Bank of Baroda payable on various dates, from 14 th September 2012 to 10th November 2012 towards payment of price of the goods is evidenced by the true copies of the cheques placed on record. The dishonour of the cheques on presentment is also evidenced by the true copies of the cheque return memos.
8. In fact, in the reply to the statutory notice, dated 3 rd January 2013, the factum of issuance of the cheques is not disputed. It is, however, asserted that the defendant Nos.5 to 7 are independent Directors and they have no control over the affairs of the defendant No.1-company. A defence of supply of defective goods was sought to be raised therein. However, the defendants have not filed any written statement to contest the assertions of the plaintiff to substantiate the said defence of supply of defective goods.
9. As the claim of the plaintiff has gone unimpeached and finds requisite support in the documents placed on record, there is no other Shraddha Talekar PS 8/9 4-COMSS-149-2015-J.doc go but to decree the suit. So far as the individual liability of the defendant Nos. 2 to 7, the learned counsel for the plaintiff does not press for a decree against defendant Nos. 5 to 7. It was submitted that the defendant Nos.2 to 4 are, however, signatories to the cheques. Thus, the liability of defendant Nos.2 to 4 can hardly be disputed.
10. As there is unflinching material on record to establish that the defendant Nos.2 to 4 had drawn cheques towards the discharge of the liability, a decree against defendant Nos.2 to 4 can be legitimately passed. However, as regards defendant Nos.5 to 7, in view of the submissions on behalf of the plaintiff that the plaintiff does not press for a decree against defendant Nos.5 to 7, and in the absence of any other material to make out the liability of defendant Nos. 5 to 7, the suit against defendant Nos.5 to 7 deserves to be dismissed.
11. Hence, the following order :
(i) The suit as against defendant Nos. 2 to 4
stands decreed.
(ii) Defendant Nos.2 to 4 do jointly and severally pay a sum of Rs.6,25,14,221.80, more Shraddha Talekar PS 9/9 4-COMSS-149-2015-J.doc particularly described in the particulars of claims at Exh.'G', along with interest on the principal amount of Rs.4,03,52,190/- @ 12% per annum from the date of suit till realization.
(iii) The defendant Nos.2 to 4 shall also pay costs of Rs.3,00,000/- quantified under section 35 of the Code of Civil Procedure, 1908, as amended by the Commercial Courts Act, 2015.
(iv) The suit against defendant Nos.5 to 7 stands dismissed.
(v) The plaintiff is entitled to refund of Court fees, if any, in accordance with the Rules.
(vi) The decree be drawn and sealed
expeditiously.
[ N.J. JAMADAR, J. ]
Shraddha Talekar PS