Delhi District Court
In Re vs M/S. N. G. Technologies Ltd on 9 August, 2011
IN THE COURT OF SH. SANJAY GARG, ADDITIONAL
DISTRICT JUDGE01 (NORTH), TIS HAZARI COURTS,
DELHI.
CS No. 219/2009
In Re:
M/s. SCJ Plastics,
Having its registered office at:
BII/22, Mohan Cooperative Ind. Estate,
Badarpur, New Delhi110044.
Through one of its duly registered partner
Sh. Darpan Jain.
....Plaintiff
Versus
M/s. N. G. Technologies Ltd.,
5, Sant Nagar, First Floor,
New Delhi110065. ....Defendant
Date of institution : 31.03.2008
Date of reserving order : 26.07.2011
Date of decision : 09.08.2011
ORDER:
1. By this order, I shall decide an application under Order XXXVII Rule 3 (5) & (7) read with Section 151 CPC filed by CS No.219/2009 Page 1/6 the defendant seeking condonation of delay and leave to defend the suit.
2. The plaintiff has filed the present suit for recovery of Rs.
3,49,950/ under Order XXXVII CPC on the basis of bills/invoices. The case of the plaintiff as set out in the plaint is that the defendant used to purchase plastic dana from the plaintiff and that a running account was being maintained by the parties. Vide bill nos.393 dated 29.07.2004 and 626 dated 20.10.2004, the defendant purchased material of Rs.98,687/ and Rs.1,04,561/ respectively on credit of sixty days from the plaintiff. After receiving the supply, the defendant issued a cheque bearing No.247140 dated 19.04.2007 for a sum of Rs. 10,000/ drawn on Oriental Bank of Commerce, Delhi to the plaintiff towards part payment and promised to pay the balance amount of Rs.1,93,248/ alongwith interest within a short duration. Since the defendant failed to make payment despite repeated demands, the plaintiff sent a legal notice dated 15.06.2007 to the defendant through registered A.D. post at CS No.219/2009 Page 2/6 their Delhi address but to no avail. The plaintiff was thus constrained to file the present suit for the recovery of the principal amount alongwith Rs.1,56,702/ towards interest calculated at the rate of 24% per annum.
3. Upon being served with the summons for judgment on 09.07.2008, the application on hand was filed by the defendant on 05.08.2008.
4. I have heard the counsel for the plaintiff. The counsel for the defendant has failed to advance arguments despite opportunity being granted.
5. The condonation of delay in filing the leave to defend application has been sought on the ground that the peon of the defendant company upon whom the summons for judgment were served handed over the same to the director of the company on 01.08.2008. A perusal of the service report shows that the summons for judgment were served on 09.07.2008 CS No.219/2009 Page 3/6 upon Sh. Pradeep Nanda, the director of the defendant company, who has applied for the grant of leave to defend the suit. Thus the explanation furnished by the defendant for delay stands falsified. However, I proceed to consider the application on merits. It is not in dispute that the defendant company used to purchase plastic dana from the plaintiff. According to the defendant, since the goods supplied by the plaintiff from July to October, 2004 were of poor quality, the payment was withheld and the plaintiff had assured to replace the same. It has been averred that as the plaintiff failed to fulfil its assurance and lift the substandard material, the defendant sold it in scrap in the year 2005 for a sum of Rs.36,700/. Thereafter, in the year 2007, when the plaintiff approached the defendant, it was agreed between the parties that the amount realized from the sale of the scrap would be paid by the defendant to the plaintiff towards the full and final settlement of all its claims. The defendant thus issued a cheque of Rs.10,000/ to the plaintiff but the plaintiff failed to issue the credit note despite the encashment of the cheque. From the averments made in the CS No.219/2009 Page 4/6 application, it is evident that the plaintiff had supplied the goods to the defendant in the months of July and October, 2004. Though the defendant has alleged that the said goods were rejected for being substandard but neither the date of such rejection nor the mode of communication thereof has been disclosed. According to the defendant, since the plaintiff failed to lift the rejected goods, the same were sold in scrap for Rs. 36,700/ in the year 2005, however, no document in support of the above has been placed on record. Further, the defendant company has averred that after negotiations, it was agreed between the parties that the sale proceeds of the scrap would be paid by the defendant to the plaintiff towards the full and final settlement of its claims. If so, no explanation has been furnished by the defendant for issuing a cheque of Rs.10,000/ only instead of making the payment of Rs.36,700/ to the plaintiff. It is the case of the plaintiff firm that since the defendant failed to make the payment of the outstanding amount of the bills, it served a legal notice dated 15.06.2007 upon the defendant. The copy of the legal notice alongwith postal receipts and duly CS No.219/2009 Page 5/6 signed AD card have been placed on record by the plaintiff. The receipt of the said notice has not been disputed by the defendant. Adverse inference has to be drawn against the defendant company for its failure to respond to the said legal notice. In the light of the above discussion, it is clear that the defence raised by the defendant company is completely sham and vexatious. Accordingly, the application under Order XXXVII Rule 3 (5) & (7) read with Section 151 CPC filed by the defendant is dismissed. Consequently, a decree for recovery of Rs.1,93,248/ alongwith costs and interest at the rate of 18% per annum from the date of the bills till the realization of the decretal amount is passed in favour of the plaintiff and against the defendant.
Decree sheet be prepared accordingly.
File be consigned to the record room.
Pronounced in the open court. (SANJAY GARG)
Dated : 09.08.2011 Additional District Judge01
(North), Tis Hazari Courts,
Delhi.
CS No.219/2009 Page 6/6