S C Manocha v. M/S Balaji Thurmo Electrical Pvt Ltd

1. The plaintiff has instituted the instant suit for recovery of `26,80,484/- along with pendente lite and future interest.

2. Plaintiff is the proprietor of M/s Max Engineering and Marketing Company and deals in electrical items of various description. The defendant used to purchase goods from him through various invoices. He was liable to pay interest at the rate of 24% per annum on delayed payment. 2014:DHC:6963

3. Case of the plaintiff is that the defendant purchased electrical goods from him through various invoices as detailed in para (4) of the plaint from September 21, 2010 to October 2010. As per the statement of account maintained by him a balance of `23,51,302/- was due and outstanding against the defendant on account of balance price of the goods till 23rd October, 2010. The defendant in discharge of the part liability issued a cheque for the sum of `10,11,431/- vide cheque bearing No.007966 dated 20.11.2010. However, on presentation the cheque was dishonoured. Again, the defendant issued another cheque in the last week of January, 2011 which was also dishonoured. Proceedings under Section 138 Negotiable Instruments Act have been initiated. The defendant failed to make payment despite various requests. Hence the present suit.

4. None appeared on behalf of the defendant despite service. The defendant was accordingly proceeded ex-parte by an order dated 18.02.2014. The plaintiff examined himself as PW-1 besides examining PW-2 (Nikhil Kumar) and PW-3 (R.K.Suri).

5. I have heard the learned counsel for the plaintiff and have examined the record. The averments in the plaint have been proved by PW-1 Shomender Gupta, attorney of the plaintiff. He filed affidavit of evidence (Ex.PW-1/A). He proved various documents (Ex.PW1/1 to Ex.PW1/21). Reliance was also placed on documents marked X to X[5]. Ex.PW1/1 is the general power of attorney issued in favour of Shomender Gupta. Exhibit PW-1/2 to Ex.PW-1/19 are 18 invoices through which electric goods were purchased by the defendant from the plaintiff. Statement of account is marked ‘X’ for the period from 01.04.2010 to 31.03.2011. Mark-X[1] is the photocopy of the cheque bearing No.007966 issued in favour of the plaintiff. Ex.PW-1/20 is the notice dated 03.03.2011 served upon the defendant.

6. PW-2 (Nikhil Kumar) brought the judicial record in the proceedings under Section 138 Negotiable Instruments Act and deposed that it contained original cheque No. 007966 dated 20.11.2010 drawn on ICICI bank and return memo dated 02.02.2011 issued by the Indian Overseas Bank. Photocopies of the same were marked as Ex.PW2/1 and Ex.PW-2/2 respectively. Postal receipts were exhibited as Ex.PW-2/3 to Ex.PW-2/6. PW-3 R.K.Suri, Assistant Manager, Indian Overseas Bank, Punjabi Bagh, proved return memo (Ex.PW-2/2).

7. The testimonies of PW-1 to PW-3 have remained unchallenged and uncontroverted. Adverse inference is drawn against the defendant for not appearing and contesting the suit. There are no sound reasons to disbelieve the unchallenged testimony of PW-1 to PW-3. Issuance of two cheques in the discharge of part liability by the defendant and proceedings under Section 138 Negotiable Instruments Act corroborate the version given by the plaintiff in the plaint and evidence by way of affidavit.

8. In the light of the above discussion, the suit of the plaintiff is decreed for the sum of `26,80,484/- with costs. The plaintiff shall also be entitled for interest at the rate of 12% per annum from the date of filing of the suit till the realization of the outstanding amount.

9. Decree sheet be prepared accordingly.

10. The suit and pending IA (if any) stand disposed of accordingly.

(S.P.GARG) JUDGE December 11, 2014 sa