M/S HARKARAN DASS DEEP CHAND v. VIREN AGROTECH PVT LTD

1. Plaintiff has filed the present suit under the provisions of Order XXXVII of the Code of Civil Procedure for recovery of Rs.60,36,522/- along with pendente lite and future interest at the rate of 18%, per annum.

2. Summons in the suit were issued to the defendant Under Order XXXVII CPC in Form 4 of Appendix B CPC. Since, the defendant could not be served in the ordinary way, the plaintiff filed an application under Order V Rule 20 CPC for substituted service. Defendant has since been served by publication. Despite substituted service defendant has failed to enter appearance in the matter.

3. Learned counsel for the plaintiff prays for passing of a decree while relying on Order XXXVII Rule 2 (3) of CPC.

4. As per the plaint, plaintiff is a partnership firm and defendant is a company. The defendant, through its Directors and other officials, had approached the plaintiff at its Delhi office for supply of Palm Stearine Oil. A detailed discussion and deliberation with respect to the said purchase, 2014:DHC:1558 including the final price and other terms, was held at plaintiff’s Delhi office and thereafter contract between the parties was finalised at Delhi. As per the contract, the plaintiff supplied Palm Stearine Oil to the defendant vide Invoice at

┌──────────────────────────────────────────────────────────────────────────────────┐
│

┌────────────────────────────────────────────────────────────────────────────┐
│              SL.NO. CHEQUE NO.           DATE            AMOUNT            │
│                 i.     965348            12.4.2010       Rs.10,56,400/-    │
│                ii.     965358            15.4.2010       Rs.10,49,534 /-   │
│               iii.     965371            25.4.2010       Rs.11,20,558/-    │
│               iv.      965372            26.04.2010      Rs.11,00,148/-    │
│                v.      965373            27.04.2010      Rs.11,01,776/-    │
│               vi.                   TOTAL                Rs.54,28,416/-    │
└────────────────────────────────────────────────────────────────────────────┘

6. Learned counsel for the plaintiff submits that before the cheques could be presented for realisation, the defendant requested the plaintiff not to present the aforesaid cheques as the defendant company was facing a financial crunch, however, all the cheques were presented by the plaintiff after 20.5.2012 on the assurance given by the defendant that the said cheques would be encashed on presentation. It is contended by counsel for the plaintiff that despite assurance given by the defendant the said five cheques were dishonoured due to insufficient funds.

7. I have heard learned counsel for the plaintiff, perused the plaint and the certified copies of all the documents, which have been placed on record in support of the pleas raised by the plaintiff in the suit. Present suit is based on dishonour of five cheques and invoices.

8. It is no longer res intigra that invoices/bills are covered within the definition of written contract. In the case of KLG Systel Ltd. V. Fujitsu ICIM Ltd., reported at 92 (2001) DLT 88 it was held as under:

9. Order XXXVII Rule 2 (3) reads as under: “(3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith.”

10. Having regard to the submissions made and taking into consideration that the defendant has failed to make the payment and the fact that despite substituted service defendant has failed to enter appearance in the matter, present suit is decreed in favour of the plaintiff and against defendant in the sum of Rs.60,36,522/- together with pendente lite and future interest at the rate of 8%, per annum. Let a decree sheet be drawn up accordingly. I.A. 5890/2013 (u/S 151 CPC).

11. Application stands dismissed in view of the order passed in the suit. G.S.SISTANI, J MARCH 21, 2014 msr