High Court Judge passed an ex-parte decree against defaulting defendants in a suit for recovery of dues arising from a contract for sale of silver pomfrets where defendants failed to appear after notice.
Decree for sum of Rs.1,26,882.63 with interest @ 12% p.a. on principal of Rs.1,00,000/-
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.
SUIT NO. 1537 OF 1984
Konkan Fisheries P.Ltd .....Plffs.
vs.
M/s. S.I. Ahmed and Co.and Ors. .....Defnds.
T.A. Bhavsar i/b. Crawford Bayley and Co. for
the plaintiffs.
None for the defendants.
CORAM: S.U. KAMDAR, J.
DATE : 11TH AUGUST, 2005.
P.C. :
1. The present suit is filed for the recovery
of sum of Rs.1,26,882.63/- with interest on the
principal amount of Rs.1,00,000/- at the rate of
25% p.a. from the date of the suit till payment
and/or relisation. Some of the material facts
of the present case are as under :
2. Some time in or about May, 1983 an agreement
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was arrived at between the plaintiff and the
defendant for purchase of 1000 master cartons
containing 20 kg,. each of silver pomfrets at
the rate of 27 per k.g. It was agreed under the
said contract that the cartons lying with the
plaintiff will be first inspected by the
representative of the fist defendant and
thereafter the same will be purchased. The
second defendant also agreed to pay Rs.10,000/-
by way of an advance under the said contract.
On 21.5.83 the said agreement has ben recorded
by the plaintiff in writing and requested that
the export inspection agency, Ratnagiri to
inspect the goods and certify the same.
3. Thereafter the first defendant sent the
representative of the plaintiff at the warehouse
at Ratnagiri and inspected the entire
consignment of 1,000 master cartons. The
representative also took random sample of 60
cartons of the said consignment. Soon
thereafter the first defendant returned to
Bombay and the plaintiff received a phone call
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from the first defendant that the said
consignment has been arrived. Accordingly the
said goods were despatched on 4.6.83 by the
plaintiff to the first defendant under three
consignments and the defendant took delivery of
the said consignment of 1000 master cartons. In
view of the aforesaid the plaintiff performed
their part of the contract dated 7.6.83 and
issued their invoice for Rs.5,40,000/- being
price due and payable inrepsect of the goods
sold and delivered. After adjustment of
Rs.10,000/- the balance amount of Rs.5,30,000/-
was due and payable within 72 hours of the
delivery of the said goods. The first defendant
paid to the plaintiff a sum of Rs.2,00,000/- as
and by way of part payment on 12.6.83 but did
not make payment of the balance amount of
Rs.3,40,000/-. Sometime in or about June 1983
the first defendant sent a telex to the
plaintiff inter-alia contending that they have
received the complaints from foreign buyers
inrespect of 8 cartons and that the said cartons
contained black pomfrets instead of silver
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pomfrets. There were certain other complaints
were also received regarding the colour of the
pomfret is yellowish and it indicated that the
same were very old. In the aforesaid
circumstances the defendant has withheld the
said amount and did not make payment thereof.
4. However on 26.7.83 the first defendant made
further part payment of Rs.2,31,000/- leaving
balance amount of Rs.1,09,000/-. Out of the
said balance amount a sum of Rs.9000/- was
required to be adjusted against the
transportation charges and thus according to the
plaintiff the balance amount was due and payable
is Rs.1,00,000/- However since no payment was
received the plaintiff addressed a letter on
19.,8.83 to Marine Products Export Development
Authority to prevail upon the first defendant to
make payment of the balance of the amount of
Rs.1 lakh. On 13.9.83 the first defendant
addressed a letter in which it is admitted that
they had checked the consignment but disputed
the liability to pay. In view of the aforesaid
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position the plaintiff issued a notice dated
15.9.83 and called upon the defendant to make
payment. However since the said payment was not
made the plaintiff has filed the suit for the
balance amount of Rs.1,00,000/- with interest at
the rate of 24% p.,a. The defendants have filed
written statement inter-alia alleging that the
goods which were meant for export to the buyers
were found defective. Some of them contained
black pomfrets and some of the goods were not of
a merchantable quality and thus it has been
contended that the defendant is not liable to
make payment. On 2.8.2005 issues were framed.
The plaintiff has filed a compilation of
documents and affidavit of evidence of Mr.
Vinod Chandgadkar in examination-in-chief.
5. This matter was on board on 26.7.2005,
29.7.2005,2.8.2005, 9.8.2005, 10.8.2005 and
today, In view of the fact that none appeared
for the defendants on the aforesaid occasions I
directed the learned counsel to give notice to
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the advocate for the defendant. The said notice
was accordingly issued on 3.8.2005. But the
said notice was not accepted by the advocate for
the defendants. I further asked the plaintiffs
advocate to give personal notice to each of the
defendant. When the notice was sought to be
served it was found that the defendants are no
longer available on the said address. An
affidavit of service dated 11.8.2005 is tendered
on record. In the aforesaid circumstances I am
required to pass ex-parte decree against the
defendants and I accordingly pass the following
decree :
There shall be a decree in
favour of the plaintiffs
against the defendants for a
sum of Rs.1,26,882.63/- with
further interest @ 12% p.a.
on the principal amount of
Rs.1,00,000/- from the date of
the filing of the suit till
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payment and or realisation.
No order as to costs.
***********
Konkan Fisheries P.Ltd
M/s. S.I. Ahmed and Co.
S.U. KAMDAR
As recorded by the court registry
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