JUDGMENT
Sanjay Kishan Kaul, J.
IA No. 9422/2003 (under Order 6 Rule 17 CPC)
1. This is an application seeking amendment of the plaint whereby the suit amount is sought to be enhanced. No notice could be issued as the process fee was not filed and learned counsel for the plaintiff states that the address of the defendants are not known and even at the earlier stages in the suit the defendants were served by publication.
2. A perusal of the application and more specifically paragraph 7 shows that all that has been stated is that the total amount has been inadvertently mentioned as Rs. 30,31,724/- instead of Rs. 39,82,259/-. No basis has been given as to how the amounts are different or how the calculations have been reached. The amendment is being sought six years after the filing of the suit and would ex facie be barred by time. A specific query was thus posed to the learned counsel for the plaintiff as to how such an amendment was maintainable after more than six years of filing of the suit. There is no satisfactory explanation to this effect.
3. In view of the aforesaid, the application is dismissed.
CS (OS) No. 295/1997
4. The plaintiff has filed a suit for recovery of Rs. 30,31,724 along with pendente lite and future interest. The plaintiff is a Government company and inter alia enters into Hire Purchase Agreements for providing financial assistance to entrepreneurs. A copy of the Certificate of Incorporation is placed on record as Ext PW-1/1. The suit has been instituted through Mr. P.L. Malhotra, Principal Officer and Constituted Attorney of the plaintiff and copy of the Power of Attorney executed in his favor is exhibited as Ex PW-1/2.
5. The defendant No. 1 is a company incorporated and registered under Companies Act, 1956 of which defendant Nos. 2 to 5 are the Directors. Defendant No. 1 is stated to be engaged in the manufacture of cycles.
6. Defendant No. 1 vide application dated 25.11.93 (exhibited as PW-1/3) approached the plaintiff for grant of raw material assistance to them under the Raw Material Assistance Scheme of the plaintiff for the manufacture of cycles. In pursuance to the request made by defendant No. 1 an Agreement was executed between the parties on 9.7.1994 (exhibit PW-1/4). The plaintiff opened a letter of credit for import of the raw materials in pursuance to the proforma invoice supplied by defendant No. 1. The said irrevocable letter of credit dated 1.7.1994 was opened for US $ 87,500/- issued by Punjab National Bank, Okhla Industrial Estate, New Delhi in favor of the seller. The last date of shipment of material was 30.8.1994 and for negotiation of documents 20.9.1994, which was subsequently extended up to 15.11.1994.
7. The defendant No. 1 made a request for amendment of the letter of credit and the Punjab National Bank did amend the letter of credit but the same was sent to American Express Bank, New York instead of Paris Branch. The plaintiff in terms of the letter dated 26.9.1994 (Ex PW-1/15) asked the Punjab National Bank to send the amendment to the American Express Bank, Paris. The defendant No. 1 in terms of the letter dated 3.10.1994 (exhibit PW-1/16) asked the plaintiff to retire the shipping documents and asked the plaintiff’s clearing agent for clearance of consignment from customs. The defendant No. 1 once again vide another letter dated 3.10.1994 asked the plaintiff to get the letter of credit amended for the purposes of the date of shipment and date for negotiation of the documents and the plaintiff in turn requested the Punjab National Bank.
8. The foreign supplier dispatched the raw material consisting of CRCA sheets in 98 coils and the same were cleared by the clearing agents. The goods were to be dispatched to the Office of the plaintiff but were instead dispatched to the Office of defendant No. 1 by the forwarding agents. The plaintiff thus made a request vide letters dated 2.12.1994 (exhibit PW-1/36) 9.12.1994 (Ex PW-1/37) for sending the material to Delhi. It is stated that though the defendant No. 1 received the goods, it failed to liquidate the liability of the plaintiff despite repeated reminders. Defendant No. 1 issued some cheques for clearance of the amounts but the said cheques were stated to have been dishonoured on presentation. Exhibit PW-1/48 is one said cheques dated 7.7.1995 for Rs. 5 lakh.
9. The legal notice was sent by the plaintiff dated 7.2.1996 (Ex PW-1/50) and the dispatch receipts of the letter and the acknowledgement cards are Ex PW-1/51 to Ex PW-1/59. The plaintiff claimed a sum of Rs. 23,20,197/- as the amount due after adjustment of the margin money apart from interest @ 23 per cent per annum quantified at Rs. 7,11,527/- w.e.f. 1.7.1994.
10. The defendants were served and entered appearance but did not file their written statement. The counsel thereafter withdrew from the matter and the defendants were again served by publication. The plaintiff has filed affidavit of evidence of one Mr. Jasbir Singh, Manager (Accounts) who has proved the documents referred to hereinabove.
11. A specific query was posed to the learned counsel for the plaintiff as to how the liability was sought to be affixed on defendant Nos. 2 to 5 who were the Directors and as to whether the said defendants had executed any personal guarantee. Learned counsel for the plaintiff fairly states that there is no document executed by defendant Nos. 2 to 5 in their individual capacity. That being the position there is little doubt that the liability can be only of defendant No. 1.
12. The documents referred to above establish that the plaintiff had got opened the letter of credit at the request of defendant No. 1 and the payments were not made by defendant No. 1 in respect of the amounts remitted as per the letter of credit despite the receipt of the material by defendant No. 1. I am thus of the considered view that the plaintiff is entitled to the balance amount of Rs. 23,20,197/-.
13. The next question arises is of interest. The plaintiff has claimed interest @ 23 per cent per annum w.e.f. 1.7.1994. In this behalf learned counsel for the plaintiff has referred to exhibit PW-1/4. Clause 8 of the Agreement refers to interest @ 23 per cent per annum but the said interest rate is filled in hand with there being no counter signature. Interestingly Clause 14 refers to the agreed rate of interest at 17.5 per cent per annum plus additional interest of 5 per cent per annum in case of failure to redeem the goods from pledge by clearing the goods against payment of cost of goods. The goods apparently were taken over by defendant No. 1 thus the occasion for such redemption never arose.
14. Taking into consideration what is stated in the Agreement and the prevailing market rate of interest I am of the considered view that the plaintiff be held entitled to rate of interest @ 17.5 per cent per annum simple interest from 1.7.1994 till the date of decree. The plaintiff shall also be entitled to future interest @ 12 per cent per annum on the principal amount of Rs. 23,20,197/-.
15. A decree is passed in favor of the plaintiff and against defendant No. 1 for the sum of Rs. 23,20,197/- along with interest @ 17.5 per cent per annum simple interest from 1.7.1994 till the date of decree and @ 12 per cent per annum from the date of decree till the date of payment. The plaintiff shall also be entitled to proportionate cost.
16. The suit is dismissed qua the other defendants.
17. Decree sheet be drawn up accordingly.