ITC LIMITED v. VIKAS RASTOGI

1. Present application has been filed under Order VIII Rule 10 CPC read with Order XIII-A of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. It is pertinent to mention that the present suit has been filed for recovery of Rs.1,77,35,973.91/-. The prayer clause in the present suit is reproduced hereinbelow:- 2018:DHC:4399 “a) Pass a decree, in favour of Plaintiff and against the Defendant for Rs. 1,77,35,973.91/- (Rupees One Crore Seventy Seven Lakhs Thirty Five Thousand Nine Hundred Seventy Three and Paise Ninety One Only); b) Award interest on the decreetal amount against the Defendants @ 18% p.a., and direct the Defendant to pay the interest at the said rate from 01.04.2015 till the time the whole of the amount is paid to the Plaintiff; e) award the costs of the proceedings to the Plaintiff; d) Pass such other appropriate orders and/or directions as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.”

2. Vide order dated 27th April, 2015, status quo order was passed in favour of the plaintiff with regard to defendant’s immovable property situated in Allahabad. Relevant paragraph of the order is reproduced hereinbelow:- “Consequently, till further orders, the defendant, his agents, representatives, nominees and assigns are restrained from creating any third party interest or parting with the possession of immovable property situated at 78, Beli Road, above Vijaya Bank, near Jagram Chauraha, New katra, Allahabad-211002, Uttar Pradesh.”

3. Since despite service, the defendant failed to file a written statement, the defendant’s right to file written statement was closed vide order dated 3rd February, 2017.

4. The present application being I.A No.4608/2018 was filed on 6th April, 2018.

5. On 9th July, 2018, the learned counsel for the defendant prayed for an adjournment on the ground that he wanted to file an appeal challenging the order dated 3rd February, 2017. However, the request for adjournment was declined as despite passage of more than one and a half years no steps had been taken by the defendant to get its appeal listed.

6. The contentions and submissions advanced by learned counsel for the plaintiff are as under:i. The plaintiff is a leading business company having business interests in various fields including lifestyle and retail business of branded apparels and other accessories. ii. The defendant is engaged in the business of distribution of garments and other products. iii. The defendant approached the plaintiff for being appointed as a distributor for distributing plaintiff’s branded apparels. Vide mutual agreement dated 26th September, 2003, arrived between the parties, the defendant was appointed as one of plaintiff’s distributors. The agreement was initially for a period of two years. It was extended from time to time. iv. The defendant in accordance with the agreements started placing orders for goods on the plaintiff, which were duly supplied by the plaintiff and invoices/bills were raised on the defendant. The defendant made an on account payment from time to time. v. However, the defendant failed to make payment against the entire supplies and became irregular in making the due payment to the plaintiff and thus committed a breach of the agreement. Further some of the cheques issued by the defendant to the plaintiff were dishonored. vi. The defendant vide letter dated 16th November, 2011 admitted and acknowledged that a sum of Rs.1,41,61,246.50/- was due and payable to the plaintiff on 31st October, 2011. vii. The defendant is also liable to pay VAT due on such purchase to the plaintiff as on 31st October, 2011. viii. The plaintiff on 28th August, 2012, asked the defendant to make payment of the amount due towards unreturned stocks/goods. ix. The distribution agreement between the parties finally expired on 25th September, 2013 and was not renewed any further. x. Further on various occasions during the period November, 2011 to January 2014, the plaintiff gave credit/adjustments to the defendants on account of sales returns and/or by accepting the claims of the defendant. xi. The plaintiff filed the present suit for recovery on 24th April, 2015.

7. The defendant during the course of the hearing handed over a copy of his reply to I.A 4608/2018 on 6th July, 2018, stating that the suit was barred by limitation as the defendant’s acknowledgement was dated 16th November, 2011, though the suit had been filed on 24th April, 2015.

8. Learned counsel for defendant further contended that the following claims of the defendant’s had not been cleared by the plaintiff

9. This Court while dealing with an application under Order VIII Rule 10 CPC in CS(OS) 873/2015 Samsung Electronics Company Limited &Anr. Vs. Mohammed Zaheeer Trading As M/s. Gujarat Mobiles &Ors. has culled out the relevant law as under:- “10. The Supreme Court in C.N. Ramappa Gowda Vs. C.C. Chandregowda, (2012) 5 SCC 265 has interpreted the Order VIII Rule 10 CPC as under:-

statement. But, if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the court to record an ex parte judgment without directing the plaintiff to prove the facts so as to settle the factual controversy. In that event, the ex parte judgment although may appear to have decided the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal which ultimately compounds the delay in finally disposing of the suit giving rise to multiplicity of proceedings which hardly promotes the cause of speedy trial."

11. A Coordinate Bench of this Court in Nirog Pharma Pvt. Ltd. Vs. Umesh Gupta and Ors., 235 (2016) DLT 354 has held as under:-

12. Another Coordinate Bench of this Court in Satya Infrastructure Ltd. and Ors. Vs. Satya Infra & Estates Pvt. Ltd., 2013 III AD (Delhi) 176 has held as under:-