Delhi District Court
M/S Bindal Technopolymer Pvt. Ltd vs M/S Vin Oxide Industries on 6 July, 2012
IN THE COURT OF SH SUNIL K. AGGARWAL: ADDL.
DISTRICT JUDGE (CENTRAL) 10: DELHI
Suit No. 310/11
M/s Bindal Technopolymer Pvt. Ltd.
Regd. Office at 21, Dr. Ambedkar Stadium,
Delhi Gate, New Delhi - 110002 ....Plaintiff.
VERSUS
M/s Vin Oxide Industries
F-18,Ram Bagh Colony,
Kothrud
Pune-411038. ....Defendant
Plaint presented on 21.09.2011
E X-P A R T E J U D G M E N T.
1.Plaintiff, a registered private limited company has filed this money recovery suit through Sh. Manoj Kumar Aggawal, Manager Accounts, who has specifically been authorized in this behalf by Board of Directors by passing a resolution, stating that it is a manufacturer, supplier and exporter of battery containers, plastic products, cell covers, PVC Separators, polyform Vent plugs and mould. The defendant company has been purchasing various goods from the plaintiff as per their requirements by placing orders. The plaintiff had supplied remelted lead ingots to the defendant vide invoice dated 02.03.2011 worth Rs.
25,50,937/-. When the defendant failed to make its payment, the plaintiff reminded them on which part Suit no. 310/11 Page no. 1 of 5
payment of Rs. 3,50,937/- was made in cash. A cheque dt. 18.04.2011 for a sum of Rs. 15 Lakhs was also issued in favour of the plaintiff. On being presented for encashment, however the cheque bounced reflecting the ulterior motive of defendant of avoiding to make payment. On being contacted the defendant sought to gain time with promise to make payment but in vain. The plaintiff therefore, gave legal notice dated 28.04.2011 to the defendant for paying the balance invoice amount with interest @ 15% p.a.. The defendant in response thereto paid a sum of Rs. 5Lakhs by way of cheque but it not make efforts to clear the balance dues. Therefore, this suit.
2. The defendant was duly served with summons for the suit by registered post in the last week of October, 2011. The plaintiff also claimed to have confirmed this fact from the defendant and even E-mail dated 21.11.2011 was received from them proposing few terms for settlement which however never came about. The text of mail however indicates that they defendant was aware of the pendency of present suit. On non appearance by the defendant, they were proceeded exparte in the suit on 24.01.2012.
3. Plaintiff has examined Sh. Manoj Kumar Aggarwal, Attorney, as the lone witness PW1 who besides narrating the facts, proved copy of board resolution Ex. PW1/1, that of Suit no. 310/11 Page no. 2 of 5 invoice Ex. PW1/2, Cheque of Rs. 15 Lakhs Ex. PW1/3, bank return memo Ex. PW1/4, legal notice Ex. PW1/5 and postal receipt Ex. PW1/6. The ex parte evidence led by way of affidavit concluded on 17.04.2012.
6. I have heard Sh. Mohd. Furqan, advocate, ld. Counsel for the plaintiff and carefully perused the record. The liability of defendant in the present suit is confined to invoice dated 02.03.2011 Ex. PW1/2. Filing of suit for recovery of balance amount thereof in September, 2011 was well within the period of limitation. The suit instituted by a juristic person through its Manager (Accounts) on the strength of resolution Ex. PW1/1, which for a company dealing in high value business through professionals, is not happily worded, is taken to be proper in the absence of any opposition. Sh. Manoj Kumar Aggarwal by virtue of his managerial position was competent to sign and verify the plaint U/o 29 rule 1 CPC being its principal officer.
7. Although the statement of account, if any maintained by the plaintiff, has not been filed yet the plaintiff has informed the total amount received from the defendant under the transaction confined to invoice Ex. PW1/2. There was mention of material shortage in E-mail dated 21.11.2011 received by the plaintiff from the defendant, which was filed by the manager of plaintiff with Suit no. 310/11 Page no. 3 of 5 his affidavit dated 24.01.2012 but in the absence of material details thereof, no latitude can be shown to the defendant who were expected to turn up in the court and take all available defences including reduction of liability under invoice dated 02.03.2011 due to short supply of material.
8. The plaintiff has informed that even the demand draft of Rs. 10,00,975/- of which copy was forwarded by the defendant with their E-mail, has not actually been received by them. It has been argued that no letter or notice in respect of short supply was received from the defendant. Even the legal notice Ex. PW1/5 went un-responded. In view of the patent abstention of defendant from the present proceedings, they are deemed to have accepted the version of plaintiff by giving them walkover. The plaintiff thus has been able to establish the merits of case.
9. Plaintiff has claimed interest @ 18% p.a. from the date of damage/loss of the suit goods. They have not calculated interest at any rate for pre-suit period nor paid court fee thereon. The plaintiff thus is not entitled to pre- suit interest. The basis of claiming interest at high rate of 18% has not been explained. There is no such term in the invoice. No other general terms agreed to by the defendant in this behalf are proved. Nevertheless the interest was claimed in the legal notice. Even otherwise the defendant Suit no. 310/11 Page no. 4 of 5 having retained the capital of plaintiff are liable to make the same good with reasonable compensation in the shape of interest as against penalty. Grant of interest @ 10% p.a. from the date of filing of suit appears to be expedient in the ends of justice.
10. In view of the above suit is decreed in the sum of Rs. 17,00,000/- with interest @ 10% p.a. from the date of filing of suit till realization and half costs in favour of the plaintiff and against the defendant.
Decree sheet be prepared. File be consigned to Record Room.
Announced in the open court on 6th July, 2012 (Sunil K. Aggarwal) Addl. District Judge (Central)-10 Delhi.
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