Radharaman International Pvt. Ltd. vs Gilvert Ispat and Others

Tarlok Singh Chauhan, J—The facts as pleaded in the plaint are that the plaintiff is a private limited Company incorporated under Companies Act, 1956 having its registered office at D-23, SMA Industrial Area, GT Karnal Road, Delhi-110033 and sale office at SPL-1/3, First Floor, RIICO Chowk Bhiwadi Distt. Alwar (Rajasthan). Sh. Harish Garg, Managing Director of the plaintiff company has been duly authorized by the Board of Directors vide its resolution dated 4.10.2013 to file the present suit.

It is averred that defendant No. 1 is a partnership firm and defendants No. 2 and 3 are partners of defendant No. 1 and have been managing, controlling and looking after the day to day affairs of the same and are responsible for the same jointly and severally.

Defendants No. 2 and 3 projected themselves to be person in charge of and responsible for day-to-day affairs of defendant No. 1. Defendant Nos. 2 and 3 also projected about the credibility of defendant No. 1 and assured the plaintiff that defendant No. 1 is in sound financial position and there shall be a timely supply of goods.

Defendants No. 2 and 3 had approached the plaintiff for and on behalf of defendant No. 1 in the month of May, 2012 and represented that defendant No. 1 was a leading manufacturer and supplier of stainless steel. Defendants No. 2 and 3 had also specifically represented and warranted to the plaintiff that defendant No. 1 shall supply stainless steel to plaintiff within the agreed period of two months. It was agreed between plaintiff and defendants No. 2 and 3, acting for and on behalf of defendant No. 1 in the month of May, 2012 that the defendants shall supply stainless steel worth a sum of Rs. 1.50 crores to the plaintiff. Accordingly plaintiff remitted an amount of Rs. 1.5 crores by way of two cheques bearing Cheque Nos. 061213, dated 30.5.2012 and Cheque No. 061215 dated 31.5.2012 amounting to Rs. 75 lakhs each, vide RTGS. Defendants No. 2 and 3 acting for and on behalf of defendant No. 1 supplied stainless steel worth Rs. 25,00,000/- only.

It is averred that in the month of August, 2012, defendants No. 2 and 3, acting for and on behalf of defendant No. 1 informed the plaintiff that for various reasons, they were not in a position to supply the remaining stainless steel worth Rs. 1.25 Crores. Defendants No. 2 and 3 failed to supply the stainless steel worth Rs. 1.25 Crores, while defendants specifically agreed to discharge legal enforceable debt of Rs. 1.25 Crores, remitted by the plaintiff towards the supply of stainless steel, by giving five post dated cheques bearing Nos. 217509, 217510, 217511, 217512 and 217513 dated 1.1.2013 drawn on National Bank, Marrahnwala (Panchkula), Haryana, amounting to Rs. 25,00,000/- each to plaintiff with the assurance that the amount standing to the credit of account of defendant No. 1 is sufficient as on 1.1.2013 to discharge the debt.

Relying upon the assurances given by the defendants, plaintiff presented the said cheques with their banker, State Bank of India, Wazirpur Industrial Estate, Delhi, but the utmost shock and surprise of the plaintiff, Cheque Nos. 217509 and 217510 were returned unpaid with remarks "Exceed Arrangement" vide return memo dated 17.1.2013. The plaintiff immediately contacted the defendants and requested for payment of cheques amount in cash, but defendants No. 2 and 3 did not pay any heed to request of the plaintiff and stared avoiding him on one pretext or the other.

Finding no other alternative, plaintiff got issued legal notice dated 11.2.2013 through its Advocate and called upon defendants to make payment of cheques amount. The said notice was sent to the defendants through speed post as well as courier and period of fifteen days was granted to them for making payment of dishonoured cheques. The notice sent through speed post and courier was duly served upon the defendants on or about 18.10.2013, but despite service of legal notice till date defendants have neither replied the same nor complied with it.

It is averred that the defendants have malafidely, dishonestly and fraudulently issued the said cheques in due discharge of their part liability knowing it well that the said cheques will not be cleared at the time of presentation as the defendants have already instructed its banker for not honouring the cheques on presentation which were issued by defendants No. 2 and 3 in due discharge of liabilities of defendant No. 1 towards the plaintiff. Thus, defendants committed an offence which is punishable under Section 138 of the Negotiable Instruments Act, hence after expiry of notice period, plaintiff filed a complaint against the defendants under Section 138 of Negotiable Instruments Act.

The defendants are jointly and severally liable to pay the cheques amount being invoice amount along with interest @ 24% per annum on account of delayed payment being the commercial transaction between the parties and an amount of Rs. 59,00,000/- (i.e. invoice amount Rs. 50,00,000/- and interest @ 24% per annum from 1.1.2013 to 30.9.2013) is due and payable. Apart from this amount of Rs. 59,00,000/-, defendants are also liable to pay pendente lite and future interest @ 24% per annum from 1.10.2013 till realization. The plaintiff is filing the present suit under Order XXXVII of Code of Civil Procedure as the plaintiff''s suit is based upon cheque Nos. 217509 and 217510 both dated 1.1.2013, drawn on Punjab National Bank Marrahnwala (Panchkula), Haryana for Rs. 25,00,000/- each which were duly signed and issued by the defendants in favour of plaintiff in discharge of part liability.

That the cause of action for filing the present suit arose in favour of the plaintiff and against the defendants when plaintiff placed order for supply of goods and again when defendants failed to supply the material. The cause of action further arose when defendant issued five cheques in favour of plaintiff and again when out of five cheques, three were honoured and two cheques were returned as dishonoured. The cause of action further arose when the legal notice dated 11.2.2013 was issued and again when it was served upon the defendants. The cause of action further arose when plaintiff filed complaint under Section 138 of Negotiable Instruments Act against the defendants. The cause of action is still continuing and subsisting as till date defendants have not paid the amount of dishonoured cheques as well as balance amount of Rs. 79,978/-. It is averred that that this Court has the jurisdiction to try and entertain the present suit as the order was placed by the plaintiff at the manufacturing unit of the defendant which is situated at District Solan, H.P.

On the aforesaid averments, plaintiff prays for passing of a monetary decree for Rs. 59,00,000/- inclusive of interest @ 24% per annum from 1.1.2013 to 30.9.2013 and direction to the defendants to pay pendente lite and future interest @ 24% per annum from 1.10.2013 till its realization in favour of the plaintiff.

The defendants despite repeated opportunities have not chosen to contest the suit and in fact have not even disputed the claim of the plaintiff.

In support of the allegations in the plaint, the plaintiff has annexed copy of resolution passed by the meeting of Board of Directors of the Company held on 4.10.2013, in which Sh. Harish Garg, Managing Director of the Company was authorized to file the present suit. The plaintiff has also annexed copy of balance sheet and copies of cheques of Rs. 25,00,000/- each along with return memo report issued by the concerned bank. In addition to this copy of legal notice has also been annexed. Lastly, proceedings in the criminal complaint filed in Rohini Courts have also been appended which clearly establishes the fact that the defendants had in fact issued cheque Nos. 217509 and 217510 towards the discharge of liability and since these cheques have been dishonoured, the plaintiff is entitled to recovery the said amount. Once it is proved and established that it was a commercial transaction, the plaintiff in addition to the principal amount, is also entitled to pendente lite and future interest.

Therefore, taking into consideration all the cumulative facts and circumstances of the case, more particularly the fact that the defendants have not chosen to contest the suit, the suit of the plaintiff is decreed for a sum of Rs. 59,00,000/- inclusive of interest @ 24% per annum from 1.1.2013 to 30.9.2013 and in addition thereto the plaintiff is also entitled to interest @ 24% per annum w.e.f. 1.10.2013 till the payment of the aforesaid amount. Decree sheet be prepared accordingly. The parties are left to bear their costs.