M/S MOSER BAER PHOTO VOLTAIC LTD v. M/S MAS PROJECT ENGINEERS PVT LTD

1. Plaintiff has filed the present suit under Order 37 CPC for recovery of the amount of Rs.20,13,218/-.

2. After service of summons on the prescribed form the defendant did not file Memo of Appearance, although a counsel appeared in court on 25.5.2012, 31.5.2012 and 21.1.2013. No vakalatnama has been filed by the counsel for the defendant. Counsel for the plaintiff submits that being a suit under Order 37 CPC and in the absence of the defendant filing his memo of appearance, the plaintiff is entitled to a decree.

3. As per the plaint, the defendant had placed an order on the plaintiff for supply of photovoltaic Solar Panels (hereinafter referred to as the goods) vide purchase order No.P/04/08/SS/385 dated 21.11.2008. The goods were duly delivered and installed by the plaintiff at the desired site mentioned by the defendant. Plaintiff raised two sale invoices on the defendant dated 31.12.2008 bearing No.PVDTE/000531 and dated 2.12.2009 No.2009900286 for Rs.12,42,360/- and Rs.10,34,790.38 2014:DHC:395 respectively. Part payments of Rs.2,23,252/- and Rs.8,69,652/- were made by the defendant to the plaintiff. Reliance is placed on the invoices, where the amount payable to the plaintiff by the defendant stands quantified.

4. Counsel for the plaintiff submits that legal notice was issued to the defendant and being a commercial transaction defendant was informed that if the outstanding amount was not cleared, the defendant would be liable to pay interest @ 18%.

5. It is also pointed out by counsel for the plaintiff that a petition under Sections 433 and 434 of the Companies Act for winding up was also filed against the defendant before the Company Court. The parties had arrived at an amicable settlement in C.P.No.516/2011. In the settlement it was agreed that the defendant would pay the principal sum of Rs.11,84,246/along with simple interest @ 5% w.e.f. 20.12.2009 in 12 equal monthly instalments and in case of default, the defendant would be liable to pay the principal amount with interest @9%.

6. Counsel submits that out of principal amount of Rs.11,84,246/-, the plaintiff has already received a sum of Rs.8,95,161/-. It is prayed that the suit be decreed for the balance amount together with interest accrued thereupon.

7. I have heard counsel for the plaintiff. The plaintiff has filed the present suit under the provisions of Order 37 of the Code of Civil Procedure. As per the provisions of Order 37 Rule [2] (3) upon receipt of summons the defendant is to enter appearance and in default of his entering appearance, the allegations made in the plaint are deemed to be admitted and the plaintiff is entitled to a decree with interest at the rate specified, if any, upto the date of decree. As per Order 37 (3) the defendant is to enter appearance within 10 days and also file in court an address for service of notices on him.

8. In this case after service, the defendant did not enter appearance as per the provisions of Order 37 (3) CPC, although a counsel appeared on 25.5.2012, on which date counsel for the parties requested that the matter be placed before the Mediation Centre. Counsel for the defendant also appeared on the next date of hearing on 31.5.2012 and also on 21.1.2013, and thereafter none has chosen to appear on behalf of the defendant. It may also be noticed that the defendant has not only failed to file memo of appearance, but the counsel has not filed Vakalatnama.

9. Counsel for the plaintiff has also handed over a copy of the order dated 7.5.2012 passed in Company Petition No.516/2011 wherein the statement of the defendant has been recorded, and he has agreed to pay the principal sum of Rs.11,84,246/- along with the simple interest @5% w.e.f. 20.12.2009 in 12 equated monthly installments to the plaintiff. Relevant portion of the order dated 7.5.2012 passed in Co.Pet.No.516/2011 read as under: “I, have heard the order passed in Court today. I on behalf of the respondent company, agree to pay the principal sum of Rs.11,84,246/- along with the simple interest @5% per annum w.e.f. 20th December, 2009 totalling to Rs.13,32,277/in twelve equated monthly installments to the petitioner. The first installment shall be paid on or before 21st May, 2012 and the remaining installments shall be paid on or before 21st day of each month. I on behalf of the respondent company, shall pay the monthly installment of Rs.1,11,023/- by RTGS mode to the petitioner. I further agree that in the event of default in making payment of any of the two equated monthly installments, respondent shall be liable to forthwith pay the principal sum along with the simple interest @ 9% per annum.”

10. Counsel for the plaintiff submits that the part payment of Rs.8,95,161/has been made.

11. For the reasons stated above, the present suit is decreed in the sum of Rs.2,89,085/- along with interest @ 9% from 7.5.2012 till realization. Decree-sheet be drawn up accordingly. G.S.SISTANI, J JANUARY 22, 2014 ssn