Partnership firm sued a limited company for recovery of unpaid invoices represented by dishonoured cheques, resulting in a decretal judgment authorizing deduction of court fees.
Decree granted for Rs. 1,08,94,051.57/- with 14% interest from date of filing suit till realization.
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 ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 220 OF 2010
M/s. J. Poonamchand & Sons
… Plaintiffs.
V/s.
Banyan & Berry Alloys Limited … Defendants.
Mr. Krishnagopal S. Tripathi for the Plaintiffs. None for the Defendants.
CORAM : N. M. JAMDAR, J. DATE : 30 SEPTEMBER, 2013
P.C. :
1 By this suit, the plaintiff seeks a decree of Rs. 1,08,94,051.57/- from the defendants alongwith the interest on the principal sum due.
2 The learned counsel for the plaintiff has tendered an affidavit of evidence and compilation of documents. It is stated in the affidavit that the original documents have been filed in the proceedings taken before the Court of Metropolitan Magistrate, Mumbai under section 138 of the Negotiable Instruments Act and the certified copies of the documents are produced alongwith the compilation. The witness of the plaintiffs is present.
3 None appears for the Defendants. No written statement has been filed by the defendants and by order dated 6th October, 2010
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passed by the Registrar and Prothonotary and Senior Master, the suit has been transferred to the lists of undefended suits. The learned counsel for the plaintiff states that the plaintiff has informed the defendants regarding hearing of the suit at the time of the hearing of the criminal complaint before the Metropolitan Magistrate.
4 I have heard the learned counsel for the plaintiffs. I have perused the documents which are produced on record.
5 The plaintiff is a partnership firm. The plaintiff is in the business of import and supply of non-ferrous, minor metals, ferro alloys and electro-plating chemicals materials etc.. The defendant is a limited company incorporated under the Companies Act, 1956. The defendants are engaged in the business of manufacturing of various steel products. In the regular course of business, the plaintiffs sold and supplied various material such as copper nickel, alloys/ ferro silicon/ cupro alloys ingots/ coper scrap/ silicon and other metals and ferrous, non-ferrous alloys to the defendants. The goods were received by the defendants without raising any complaint regarding quality and quantity. The details of various invoices raised have been specified by the plaintiff in paragraph -4 of the affidavits of evidence. The challans showing that the goods were received by the defendants have been placed on record.
6 It appears that the defendants made part payments to the plaintiffs and the last payment was made on 22nd November, 2006 for Rs.10,00,000/-. However, the balance of amount of Rs.
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63,43,451/- was not paid. The defendants issued cheques towards the payments and the cheques were dis-honoured. Thereupon the plaintiffs filed criminal complaints bearing nos. 273/S/2007, 282/SS/2007, 295/S/2007, 302/S/2007 and 326/SS/2007 filed before the Metropolitan Magistrate, 14th Court at Girgaon, Mumbai. Before filing these criminal complaints, the plaintiffs issued notices to the defendants in respect of the dishonour of cheques. The defendants replied it by letters dated 6th February, 2007 and 13th March, 2007, acknowledging their liability to pay. The defendants sought time to make the payments and called upon the plaintiffs to amicably resolved the issue. However, the balance amount was not paid.
7 From the perusal of the invoices of delivery challans, it is clear that the goods were received by the defendants. This has acknowledged by the defendants themselves in the reply to the notice as stated above. In spite of the knowledge of the suit, the defendants have not appeared nor filed any written statement to controvert the assertion of the plaintiffs. The liability of the defendants is clear. Thus the plaintiffs will be entitled to a decree as prayed for.
8 The plaintiff has claimed interest at the rate of 24%. There is no reason given in the complaint, as to how interest at the rate of 24% is claimed. Considering the facts and circumstances of the case, in my opinion, that the interest of justice will be met if the interest at the rate of 14% is provided.
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9 Accordingly, the suit is decreed in terms of prayer clauses (a) and (b) with rate of interest being 14% from the date of filing of the suit till realization.
10 Refund of Court fees if any, as per rules. The original documents be returned to the parties after the true copies of the documents are placed on record to the satisfaction of the office.
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3 issues framed by the court
Whether the plaintiff is entitled to a decree as they supplied goods and lost cheques remained unpaid.
What rate of interest will provide justice given no compelling reason for 24% was claimed.
Whether the liability of the defendants is clear given their failure to appear or file a written statement.
2 provisions across 2 enactments
M/s. J. Poonamchand & Sons
Banyan & Berry Alloys Limited
N. M. Jamdar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
