Delhi District Court
M/S Scj Plastics Ltd vs M/S Kiran Sales Pvt Ltd on 13 May, 2014
IN THE COURT OF Ms. TANVI KHURANA, CIVIL JUDGE1 (South)
SAKET COURTS NEW DELHI
In the Matter of
Civil Suit No.246/13
Case ID No.02406C0156842012
M/s SCJ Plastics Ltd.
F3/1011, Okhla Industrial Area
PhaseI, New Delhi110020 ..............Plaintiff
Versus
M/s Kiran Sales Pvt Ltd.
Plot No. 102, Sector 31
HSIDC, Faridabad121003 .......... Defendant
Date of institution :09.07.2012/27.08.2013.
Date of reserving the judgment : ORAL
Date of pronouncement : 12.05.2014
Decision : DECREED
Present: Ld. counsel for the plaintiff.
SUIT UNDER ORDER XXXVII CPC FOR RECOVERY OF Rs.1,39,950/
(RUPEES ONE LAC THIRTY NINE THOUSAND NINE HUNDRED AND
FIFTY ONLY ).
JUDGMENT:
The present suit has been filed by the plaintiff under Order XXXVII of the Code of Civil Procedure, 1908 against the defendant for recovery of liquidated sum of Rs. 1,39,950/ along with pendente lite and future interest at agreed rate of 24% per month.
2. Succinctly, the averments of the plaintiff in the plaint are that the plaintiff is a limited company duly incorporated under the Companies Act, 1956, registered with ROC (Delhi & Haryana) Suit No. 246/13 SCJ Plastic Ltd. Vs M/s Kiran Sales Pvt. Ltd. Page 1 of 4 having its registered office at Okhla dealing with Master Batches and Compounds. It is stated that Sh. Deepak Kamar, Marketing Executive has been duly authorised to be the authorised representative on behalf of the plaintiff by resolution dated 26.04.2012.
3. It is submitted that the defendant is a private limited company duly registered. It is averred that vide invoices from 11.10.2010 to 21.12.2010, the defendant had purchased Master Batches from the plaintiff worth Rs. 1,74,603/ on credit of 30 days. It is further stated that it was also condition in the invoice that the defendant were liable to pay interest @24% per annum from the date of payment in case of default. It is submitted that till 24.12.2011, defendant failed to make the payments despite assurances. It is averred that legal notice was issued dated 24.12.2011 in respect of dishonour cheque no. 152182 dated 10.12.2011 for Rs. 82,614/ under Section 138 of Negotiable Instrument Act. The payment was made by the defendant vide demand draft. The balance amount of Rs. 91,954/ (Ninety One Thousand, Nine Hundred and Fifty Four Rupees) still remain unpaid. It is further averred that the defendant had paid Rs. 50,000/ vide cheque number 176058 drawn on Canara Bank, Okhla Industrial Area but it was dishonoured and no payment was made for this amount. It is averred that defendant is liable to pay the amount of Rs. 1,39,950/ to the plaintiff. It was stated that another legal notice dated 26.03.2012 was also issued but in vain. Hence the present suit was filed.
4. Nothing, which can not be claimed within the ambit of Order Suit No. 246/13 SCJ Plastic Ltd. Vs M/s Kiran Sales Pvt. Ltd. Page 2 of 4 XXXVII was claimed in the present suit.
5. Summons for appearance were issued in the prescribed format U/O XXXVII and the defendant filed their appearnce on 08.01.2013 stating their address to be plot no. 102, Sector 31, HSIDC, Faridabad, Haryana. Summons for judgment were also issued at the same address time and again which is evident from the receipts placed on record. The address is same in all the receipt, however, none of the summons were received back. Court notice was also issued which was not received back. As per the provision under Order V Rule 9 (5) Proviso, of the Code of Civil Procedure, 1908, if the summons were properly addressed, pre paid and duly sent by registered post acknowledgement due and have not been received by the court within 30 days from the date of issue of summons it would be deemed service hence, the summons for judgment are deemed to be served upon the defendant. It is pertinent to mention here that the summons were issued five times on the same address. As abundant caution, Ld. counsel for the plaintiff also issued the summons with notice of today's date and address of the Director of the defendant. The tracking report of the consignment is also placed on record.
6. The defendant has not filed any leave to defend till date.
Therefore, as provision contained in Order XXXVII Rule 3(6) (a), CPC the plaintiff is entitled to decree forth with.
7. In order to establish the case, the plaintiff has placed on record following documents:
i. Original board resolution.
ii. Carbon copy of invoices no.4036,4089,4275,4377,4663,4714.Suit No. 246/13 SCJ Plastic Ltd. Vs M/s Kiran Sales Pvt. Ltd. Page 3 of 4
iii. Legal notice dated 24.12.2011
8. As the original documents are already on record and the defendant has not filed any application seeking leave to defend, the plaintiff is entitled to judgment under the provision of Order XXXVII Rule 3 (6)(a), Code of Civil Procedure, 1908.
9. The documents placed on record by the plaintiff establish the fact that a written contract was executed between the parties. The defendant failed to pay the amount raised. As the defendant has failed to pay the principal amount of Rs.91,954/, the plaintiff is entitled to the amount sought. It is also noted that the plaintiff has sought the interest @24% per annum. He has further submitted that it was agreed between the parties. However, no such agreement is reflected on the invoices. Therefore, this Court finds the interest quoted as exorbitant and thus, the rate of interest is adjudicated as 10% per annum.
10. Accordingly the suit of the plaintiff is decreed against the defendants for Rs 91,954/ along Rs.2,500/ and interest @ 10% per annum from 24.12.2011 till realization of the amount. Plaintiff is also entitled to the costs. Decree sheet be drawn accordingly. File after due completion, paging and indexing be consigned to record room.
Announced in the open court
on 12th May 2014 (TANVI KHURANA)
The judgment contains 04 pages, Civil Judge01 (South)
all checked and signed by me. Saket Courts/New Delhi
12.05.2014
Suit No. 246/13
SCJ Plastic Ltd. Vs M/s Kiran Sales Pvt. Ltd. Page 4 of 4