JUDGMENT
Anil Kumar, J.
1. This judgment will dispose of plaintiff’s suit for recovery of Rs. 25,68,182.75 on account of price of goods sold and delivered to the defendant.
2. The plaintiff contended that it is a company duly incorporated under the Companies Act and Shri R.S. Jain is the Company Secretary of the plaintiff, who has signed, verified and instituted the suit on behalf of the plaintiff company. On behalf of plaintiff, it was averred that company was incorporated under the companies act and had been manufacturing and marketing polyester films on a regular basis.
3. The defendant company had been purchasing the polyester films manufactured by the plaintiff and he had been raising the invoices for the material supplied and sold to the defendant. The defendant made on account of payment in respect of invoices. The details of the cheques given by the defendant were given in para 4 of the plaint. The cheques which were given by the defendant, were however, dishonoured when they were presented for encashment. Consequent of dishonouring of cheques, various meetings between the officials of the plaintiff and defendant took place where promises were made to make the payment. In this regard a letter was also written by the defendant to the plaintiff on 16th December, 1996 promising to liquidate the outstanding of the defendant.
4. It was contended by the plaintiff that on the assurance of the defendant, plaintiff continued to supply further goods and kept on getting part payments of the amounts due from the defendants. On taking accounts on 31st May, 1997, an amount of Rs. 68,97969 was found to be due to the plaintiff from defendant. Thereafter, more payments were made by the defendant to the plaintiff. The plaintiff averred that it maintains regular books of account where the bills raised are duly debited and the payment received are duly credited and as per books of account maintained, a sum of Rs. 15,47,098.03 was found due to the plaintiff from the defendant. Therefore the demands were raised for the amounts due from defendant to plaintiff vide letters dated 15.10.1999, 10.11.1999, 24.12.1999 and 28.12.1999, however, defendant failed to pay the amount and in the circumstances, the plaintiff has claimed a sum of Rs. 15,47,098.03 on account of balance price of goods supplied to defendant and an amount of Rs. 10,21,084.72 as interest at the rate of 24% per annum till the date of the filing of the suit and thus a total sum of Rs. 25,68,182.75 which defendant has not paid despite a legal notice dated 10.01.2000.
5. The suit was filed under Order xxxvII of the Code of the Civil Procedure by the plaintiff and summons was served by publication in Delhi in ‘Indian Express’ dated 14.03.2003. The defendant was also served by way of affixation on the notice board.
Since no appearance was put on behalf of the defendant despite service, though the suit was under Order xxxvII, the defendant was proceeded ex parte by order dated 18.08.2003.
6. Since the defendant did not file appearance under Order xxxvII, the suit could be decreed on the averments made in the plaint, however, plaintiff was directed to file his evidence on affidavit and consequently, an affidavit of Shri S.K. Jain, Company Secretary, authorized signatory dated 13.01.2004 was filed.
7. The witness of the plaintiff Shri S.K.Jain deposed that he is the Company Secretary and authorized signatory and he proved the authorization given in his favor as Exhibit PW1. He also proved the certificate of incorporation of plaintiff company as Exhibit PW2. He has also deposed that the plaintiff company is a leading manufacturer of polyester film and markets and sells the said products to its various customers across the country. Shri S.K. Jain, the authorised signatory of the plaintiff, depose about the cheques for Rs. 1.50 lakh each given by the defendant to the plaintiff in 1996 and proved these four cheques for a sum of Rs. 5.50 lakh as Exhibit PW3. The deposition about the meeting between the officials of the plaintiff and defendants was also made and about the letter dated 16th December, 1996 promising to pay the amount due from the defendant and also proved the said letter as Exhibit PW4. It was stated that as on 31.05.1997, a sum of Rs. 68,979.69 was due from defendant to plaintiff.
8. It was deposed that the defendant assured to make payment and consequently more goods were sold and delivered. Some part payments were also made by the defendant. The deponent on behalf of the plaintiff deposed that the plaintiff company maintains regular books of accounts and as per books of accounts, the statement of which was proved as Exhibit PW5, a sum of Rs. 15,47,098.03 was due from the defendant to plaintiff. The demands raised on the defendants vide letters dated 15.10.1999, 10.11.1999, 24.12.1999 and 28.12.1999 were proved as Exhibit PW6 to PW9. It was also proved on behalf of plaintiff that on the amounts due from defendant, plaintiff company is entitled for interest @ 24% per annum and till the date of filing of the suit, plaintiff proved that an amount of Rs. 10,21,084.72 was due from the defendant to the plaintiff. Legal notice given to the defendant demanding the amount was proved as Exhibit PW10 and the postal receipt and acknowledgment card as PW11 and PW12 respectively. The witness deposed that the defendant has failed to pay the amount due from him to the plaintiff.
9. I have perused the averments made in the plaint and the documents filed and proved by the plaintiff. The plaintiff has established that it is a company duly incorporated and the plaint has been signed, verified and instituted by a duly authorized person on behalf of plaintiff firm. The part payments made vide various cheques and the bank slips regarding dishonouring of cheques have also been proved by the plaintiff. The plaintiff has also established the acknowledgment on the part of defendant of a proximately Rs. 15.00 lakh by their Assistant Manager (Commercial). The statement of account which has been duly proved by the plaintiff reflects that a sum of Rs. 15,47,098.03 was due to the plaintiff. The plaintiff demanded the amount with interest at 4% which matter has not been replied. The legal notice sent through the counsel also demanded interest @ 24% per annum contending that the said rate of interest was agreed and is also in accordance with usage and customs of market and trade. A notice on demand dated 10.01.2002 was also given which has not been replied by the defendant. The pleas and contentions of the plaintiff in the facts and circumstances remain unrefuted.
10. Considering the facts and in totality of circumstances, the inevitable inference is that the plaintiff has been able to prove that defendant is liable to pay Rs. 15,47,098.03 on account of balance price of goods and interest @ 24% per annum till the date of filing of the suit amounting to Rs. 10,21,084.72 and thus a total amount of Rs. 25,68,182.75 is due from the defendant to the plaintiff which the defendant has failed to pay.
11. Accordingly, the suit of the plaintiff is decreed and a decree for the recovery of Rs. 25,68,182.75 is passed in favor of the plaintiff and against the defendant. The plaintiff is also awarded pendente lite and future simple interest @ 9% per annum from the date of institution of the suit till the realisation of the decreetal amount. Cost of the suit is also awarded to the plaintiff and against the defendant. Decree sheet accordingly be drawn.