Full Text
Date of Decision: 26th March, 2014.
GOODLUCK CAPITAL (P) LTD. .... Plaintiff
Through: Mr. A.K. Thakur and Mr. R.K.
Mishra, Advocates.
Through: None.
JUDGMENT
1. The plaintiff has instituted the present suit for recovery of Rs. 1,66,83,554.68, pleading:
(I) that the plaintiff and the defendant entered into an arrangement sometime in April 2007, for supply by the plaintiff to the defendant of Steel and Heavy Melting Scrap;
(II) that the defendant used to make payments on an ad-hoc basis for the supplies made by the plaintiff, as per invoices raised from time to time, and which were adjusted towards the outstanding dues in the usual course of business;
(III) that though initially the payments were promptly made by the defendant upon presentation of the invoice but subsequently, 2014:DHC:1681 especially from April 2009, the defendant started defaulting in making payments and the cheques issued by the defendant for unpaid invoices during the period 09.04.2009 to 26.10.2009 were dishonored due to stop payment instructions given by the defendant to its bankers and for which the plaintiff has also filed proceedings under Section 138 of the Negotiable Instruments Act against the defendant;
(IV) that the factum of payments in respect of supplies made by the plaintiff to the defendant being due is admitted by the defendant and in fact the defendant on 01.04.2009 had confirmed its liability to the extent of Rs. 1,69,78,165.85 in this regard after reconciliation of accounts between the two parties and signed of balance confirmation of accounts;
(V) that after 01.04.2009, various supplies were made and invoices were raised by the plaintiff and against which some payments were made by the defendant and after adjustment of which against the outstanding dues, the statement of accounts of the plaintiff for the period 01.04.2009 to 31.12.2010 reveal the net amount due and payable by the defendant to be Rs. 1,66,83,554.68;
(VI) that even after repeated requests, persuasion and follow-up, the defendant did not pay the outstanding dues and instead upon being approached intimidated the plaintiff with dire consequences, in lieu of which the plaintiff was also constrained to file an FIR on 02.12.2010 with Sihani Gate Police Station, Ghaziabad against the Directors of the defendant under Section 406, 420 and 506 of IPC for breach of trust, cheating and criminal intimidation; and
(VII) that the defendant has claimed MODVAT on the Excise Duty and VAT paid by the plaintiff on the supplies to the defendant and notices have been received by the plaintiff from the Excise Authority for verification of its invoices in this regard and thus such invoices cannot be denied by the defendant in law or fact. Accordingly, the plaintiff seeks to recover the aforesaid amount with interest at 12% per annum from 01.01.2011 till realization of its outstanding dues.
2. Summons of the suit were issued on 15.03.2011. Though the Director of the defendant personally entered appearance on 06.07.2011 and sought time for filing the written statement but subsequently failed to do so and stopped appearing thereafter. Accordingly, this Court on 09.12.2011 ordered the defendant to be proceeded ex parte and listed the case for ex parte evidence of the plaintiff. On the next date however, a counsel for the defendant appeared and informed the Court of an application for setting aside of the order proceeding ex parte order having been moved. However, since the counsel also stopped appearing thereafter, the said application was dismissed in default on 30.03.2012. The ex parte evidence of the plaintiff was closed on 18.01.2014 and the matter placed before this Court today for ex parte hearing.
3. The plaintiff has examined only one witness being Mr. Sunil Kumar Garg – the duly authorized representative of the plaintiff. The affidavit filed by way of evidence reiterates the case as urged in the plaint and need is thus not felt to advert thereto. Mention may however be made of the following documents which have been tendered in evidence to support the case of the plaintiff:
(I) Original Statement of Accounts of the plaintiff for the period
(II) Letter dated 01.04.2009 sent by the defendant to the plaintiff of confirmation of accounts and which discloses the balance due as on 31.03.2009 in the books of accounts of the defendant itself to be Rs. 1,69,78,165.85, exhibited with the mark ‘W’;
(III) Copies of the dishonored cheques issued by the defendant to the plaintiff, exhibited with the marks A to I;
(IV) Copies of summons issued in the proceedings initiated under
Section 138 of the Negotiable Instruments Act with respect to the dishonored cheques, exhibited with the marks K to P; and
(V) Copies of Notices received by the plaintiff for verification of its invoices, with regard to the MODVAT claimed by the defendant, exhibited with marks A-1 to A-26.
4. I am of the opinion that the documents on record satisfactorily prove the existence of an arrangement for supply of goods by the plaintiff to the defendant. As far as quantification of the amount owed by the defendant to the plaintiff under such an arrangement is concerned, notice must first be taken of the letter dated 01.04.2009 (Exhibit Mark ‘W’) by the defendant to the plaintiff seeking confirmation of balance with regard to the transactions between the parties and disclosing the outstanding dues in the accounts of the defendant itself to be Rs 1,69,78,165.85 as on 31.03.2009. The defendant has not contested the present suit to indicate whether it made any payments subsequently towards satisfaction of the said admitted outstanding dues. As opposed to this, the plaintiff has alleged that most cheques issued by the defendant after April 2009 were dishonored and that though there were some payments by the defendant with regard to invoices raised by the plaintiff even after 01.04.2009, the outstanding balance still stood at Rs. 1,66,83,554.68 as on 31.12.2010 (which is roughly 3 lacs less than the balance confirmed to be due by the defendant himself on 01.04.2009) and has filed before this Court its statement of accounts to establish the same (Exhibit PW1/1). I thus find no reason to disbelieve the plaintiff with regard to either the existence of the arrangement for supply of goods to the defendant or the quantification of the outstanding dues owed by the defendant to the plaintiff with respect to the aforesaid arrangement. I may also notice that though on the documents as mentioned in para 3 above at II to V, mark as distinct from exhibit mark was put in the ex parte evidence of the plaintiff, owing to the witness of the plaintiff, on the day when his statement was recorded, not carrying the original documents but the original documents were subsequently tendered on 18.01.2014 as well as today. It is for this reason that the same have been read in evidence.
5. Accordingly, I decree the suit of the plaintiff for recovery of Rs. 1,66,83,554.68 being the outstanding balance with respect to the transactions entered into between the parties. The plaintiff has also claimed interest at the rate of 12% from 01.01.2011 on the said amount. The transactions between the parties being of a commercial nature, I do not deem the rate of interest sought by the plaintiff to be exorbitant or unreasonable. Accordingly, it is held that the plaintiff shall also be entitled to interest on the sum of Rs. 1,66,83,554.68 at 12% per annum from 01.01.2011 till the realization of the sum from the defendant. The plaintiff shall also be entitled to costs of the suit with the counsel’s fee assessed at Rs. 20,000. Decree Sheet be drawn up.
RAJIV SAHAI ENDLAW, J. MARCH 26, 2014. aa