Delhi District Court
Tradeco International vs M/S. Cl International on 18 January, 2012
1
IN THE COURT OF MS. SUJATA KOHLI
ADDITIONAL DISTRICT JUDGE(WEST)
TIS HAZARI : DELHI
C.S. No.422/2009
Tradeco International
Through Mr. Akhtar Jafri
544/14, Ground Floor, Opposite A-Block,
New Friends Colony,
Zakir Nagar, New Delhi-25.
....Plaintiff
Versus
1. M/s. CL INTERNATIONAL
43/41, West Punjabi Bagh,
New Delhi-30.
2. Abhishek Gupta (Partner)
43/41, West Punjabi Bagh,
New Delhi-30.
3. Abhinav Gupta (Partner)
43/41, West Punjabi Bagh,
New Delhi-30.
...Defendants
Date of Institution of Suit : 21.10.2009
Date of reserving the Judgment : 18.01.2012
Date of passing the Judgment : 18.01.2012
JUDGMENT:
Plaintiff has sought recovery of Rs.12,33,100/- by way of this summary suit under Order 37 CPC, alleging therein that in the third week of July 2007, plaintiff i.e. Tradeco International Vs. M/s. CL International 2 Sh. Akhtar Jaffrey, of the plaintiff firm and Sh. Abhishek Gupta, partner of defendant no. 1 firm were taking a journey in Baramati, Maharashtra for purchasing sugar, and during which meeting they developed and understanding as per which defendants shall be supplying sugar to various buyers of plaintiff assuring a good quality and the defendant no.2 agreed to charge a commission @ 2% on C.N.F. Consequently it was also agreed that the plaintiff shall be named as third party in all documents and a base price of Rs. 10,500/- for PMT FOB was agreed between the parties.
2. Plaintiff entered into transaction with defendants and when plaintiff pursuant to an order placed by his buyers for supply of Indian sugar of 104.332 MT and 156.499 MT, placed an order for the supply, total sum of Rs.20,0000/- were credited into the account of the defendant firm vide different Cheques as per particulars stated therein. It is further the case of the plaintiff that defendants no.2 and 3 provided forged and fabricated documents showing the goods to have been shipped to the aforesaid buyers of the plaintiff namely PEARL AL BAYDA and FARWARSIYA GEN at Kuwait, which had actually never reached the said buyers. Upon confronting the defendants and due to pressure being put by the respectable members of business fraternity, the defendants admitted their liability and acknowledged a sum of Rs.30,64,080/- to be due from them to the plaintiff and in partial discharge of their liability, defendants issued the Cheque bearing No.046035 for a sum of Rs.10,0000/- in favour of the plaintiff, drawn on Bank of India. Said cheque was however, returned dishonored with remarks 'Payment Stopped'. The plaintiffs were given assurances of payment but to no avail and ultimately, even the legal notice issued on 04.03.2008 brought no response from the defendants and hence the suit for recovery of the principal and interest.
3. The version of the defendants in their leave to defend application is that the plaintiff illegally presempted a cheque for encashment, which was handed over by the defendant only by way of security, at the inception of the business dealings between the Tradeco International Vs. M/s. CL International 3 parties. As per the defendants/applicants, the plaintiff had placed an order for supply of 260 MT sugar to M/s. Aqueela Gen. Trading at Kuwait and the price was settled at $US 360 per MT between the parties and it was further agreed that defendants would be the beneficiary of the subsidy granted by the Directorate General of Foreign Trade and the Excise subsidy granted by Excise Department for the goods exported by the defendants.
4. As per the terms and conditions, plaintiff had transferred Rs.17,0000/- to the defendants and defendants had very well exported 260 MT of sugar to the said company vide Invoice No.CL1/EXP/158A dated 16.07.2007 and pursuant to the delivery of the sugar, to the representative of the plaintiff at Kuwait, defendant requested to hand over the Bank Realization Certificate to the defendants so that the defendants could claim subsidy from the said departments. But the plaintiff failed to deliver the BRC.
5. It was also agreed for the future transaction that they would do business on basis of Letter of Credit (LC) so that no controversy arises. It is further alleged by the defendants that in October 2007, plaintiff ordered the defendants to export 250 MT of Basmati Sella Rice to M/s. Almina Trading Establishment at Jeddah, Saudi Arabia. On request of plaintiff it was agreed that 90% of the Invoice amount shall be paid at time of delivery of the documents/opening of the LC and the remaining 10% shall be paid at the time of delivery of the goods to the representatives of the plaintiff at Jeddah. It is the case of the plaintiff till date they have not received the said remaining 10%, resulting into loss of Rs.7,40,000/- to the defendants.
6. Defendant denies any order as alleged by the plaintiff to have been given to the defendant for supply of Indian sugar of the alleged quantity to PEARL AL BAYDA and FARWARSIYA GEN at Kuwait, and also that plaintiff had made a payment of Rs. 20,0000/- to the defendant for the alleged orders. It is further submitted that plaintiff the payments had been made by plaintiff towards running account maintained by the defendant.
Tradeco International Vs. M/s. CL International 4
7. During the course of arguments it was the contention of the Ld. Counsel for plaintiff that had there been any truth in the contention of the applicant, a suit would have been filed by the defendant long ago, which was never done. It was further argued that many other cases similar in nature are pending against the defendants and that the conduct of the defendant also shows that he was even avoiding to be served at the initial stage.
8. Ld. Counsel for defendant/applicant on the other hand has referred to a letter issued from them addressed to plaintiff dated 20.11.2007 stating therein that defendant had sent several reminders for their outstanding amount but they have not received any reply from the plaintiff and that they were not willing to carry on business with the plaintiff any more and the plaintiff was directed to return their security cheques No.046035 and to settle the outstanding within two days and failing which they would be compelled to initiate legal proceeding.
9. No doubt that Ld. Counsel for the plaintiff/non-applicant pointed out to the conspicuous/absence of dates, the mode of the alleged reminders, the particulars of the outstanding amount referred in the said notice but then it cannot be disputed that there is a mention of a request to return the cheque described as a security cheque being No. 046035 in this letter and also the defendant has called upon the plaintiff to settle the outstanding amounts within two days and in default they would be compelled to start legal proceedings.
10. The controversy between the parties can evidently, not be decided without affording an opportunity to the defendants to prove its defence, which on the face of it cannot be termed sham or frivolous in as much as triable questions are involved which would require detailed evidence.
11. However, in view of the surrounding facts, while allowing the leave to defend, it was deemed necessary to secure the interest of the plaintiff as well, and as Tradeco International Vs. M/s. CL International 5 such the leave to defend was granted on condition to place on record a fixed deposit receipt in the sum of RS.10,00,000/- (ten lacs) vide order dated 03.10.2011.
12. However, the defendant failed to comply with the said conditions in spite of ample time and repeated opportunities i.e. 05.12.2011 and 22.12.2011. On 05.12.2011, ld. counsel for defendant appeared and only stated that he was contemplating to file the written statement. Since the written statement was directed to be filed within 30 days and same was not done, after compliance of the condition, the matter was kept reserved for orders.
13. At the belated stage when the matter was already reserved for orders, defendant came up with an application praying therein that the matter be adjourned for two weeks and that no adverse orders be passed. Preliminary hearing was given on this application, wherein it was stated that applicant have filed a FAO before Hon'ble High Court vide Diary No.189635 and that after removing all objections have again refiled the FAO on 13.01.2012.
14. The entire length of delay right from 03.10.2011 remained unexplained. It was also quite surprising that the defendants did not ever bother to sign the application and no necessity was seen ever to file an affidavit in support. The application was also conspicuously about the date of the first filing referred in para 1.
15. As per the guidelines from the Hon'ble High Court circulated from time to time unless and until there was an order of stay, the lower courts are not bound to stay the proceedings. Even apart from that the application was nothing but a gross abuse of process of law deliberately not supported by an affidavit and defendants did not even signed it. As such same was not even maintainable and could not be entertained even.
16. The entire conduct of the defendants makes it very clear that neither they bothered to comply with the orders of this court passed as long as back in 30.10.2011 nor they availed their remedies under the law in a reasonable time instead of Tradeco International Vs. M/s. CL International 6 approaching higher courts, they have come to seek virtually of the stay of the proceedings which is not an harmony with the said procedure provided in Order 37 CPC as well. Order 37 Rule 3(6) Clause (b) provides as under:-
"if the defendant is permitted to defend as to the whole or any part of the claim, the court or Judge may direct him to give such security and written such time as may be fixed by the court or Judge and that, on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith".
17. In terms of said provision there is no scope for discretion as the said provision is mandatory. Even otherwise the conduct of the defendants does not even deserve any such discretion even if vested in the court.
In view of the above detailed discussion, the suit is being decreed in favour of the plaintiff and against the defendant for a sum of Rs.12,33,000/- alongwith costs of the suit and interest @ 12% p.a. from the date of filing suit till date of judgment/decree.
Decree sheet be prepared.
File be consigned to record room.
Announced in the open court (SUJATA KOHLI)
today i.e. on 18.01.2012 ADJ ( WEST)/DELHI
Tradeco International Vs. M/s. CL International