1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO. 1254 OF 1988 M/s.Boolani Engineering Corporation ...Plaintiffs vs. M/s.Milind Engg. Works Pvt.Ltd. ...Defendants Ms K.C.Nichani for the plaintiffs None for the defendant CORAM :A.S.OKA,J. DATE ON WHICH JUDGMENT IS RESERVED: DECEMBER 17, 2009 DATE ON WHICH JUDGMENT IS PRONOUNCED:JANUARY 6,2010. JUDGMENT : 1 The plaintiffs have filed the present suit for recovery of a sum of Rs.3,06,910/- with further interest at the rate of 6% per annum on the sum of Rs.2,64,590/- from the defendants till payment or realisation. 2 The plaintiffs are a partnership firm registered under the Indian Partnership Act, 1932. The defendants are a private limited company carrying on a business of manufacturing of various vaccum driers and other products. 3 In December 1984, the defendants approached the plaintiffs and offered to supply to the plaintiffs a Double Cone Rotary Vaccum Drier of certain specifications. Negotiations were held between the parties. On 12 th December 1984, the defendants offered 2 to supply to the plaintiffs the said vaccum drier for total consideration of Rs.4,00,000/-. The defendants offered to deliver the vaccum drier to the plaintiffs within a period of 4 to 6 weeks. The plaintiffs accepted the said offer. 4 According to the case of the plaintiffs, they paid various amounts to the defendants from time to time aggregating to Rs.1,95,000/- towards advance. On the request of the defendants, the plaintiffs purchased bearings on account of defendants and supplied to them under the delivery challan dated 11 th March 1985 for a sum of Rs.39,258/-. On the request made by the defendants, the plaintiffs paid a sum of Rs.30,261/- to one M/s.Auto Control and Solidtron on account of material supplied under two bills dated 7 th May 1985. The defendants signed hundies against the said amounts which were ultimately dishonoured. Thus, the case of the plaintiffs is that they paid a total sum of Rs.2,64,590/- to the defendants by way of advance towards the price of the Vaccum drier. 5 On the request made by the defendants, the plaintiffs extended time for delivery of the vaccum drier. However, the defendants failed to supply the vaccum drier even within the extended time. Therefore, by a letter dated 11 th January 1986, the plaintiffs 3 called upon the defendants to refund the aforesaid amount of Rs,264,590/-. The plaintiffs issued reminder dated 1 st February 1986. Defendants replied by letter dated 12 th February 1986 contending that the plaintiffs have not paid the amount equivalent to 75% of the agreed consideration. The defendants demanded a further sum of Rs.50,000/-. 6 Thereafter, there were meetings held between the parties and ultimately it was agreed that the defendants should give delivery of the vaccum drier on or before 3 rd March 1986. This was recorded by the plaintiffs in their letter dated 12 th March 1986 addressed to the defendants. However, the defendants failed to deliver the drier. Ultimately by letter dated 26 th February 1987, the plaintiffs called upon the defendants to pay the amount along with interest at the rate of 21% per annum. Thereafter, a legal notice dated 27 th August 1987 was issued by the Advocate for the plaintiffs to the defendants. There was no response to the said notice. Therefore, the present suit was filed invoking Order XXXVII Rule 2 of the Code of Civil Procedure,1908. 7 This court granted unconditional leave to defend the suit in favour of the defendants. The defendants filed a written statement and contended that along with the order, the plaintiffs had agreed to pay a sum of Rs. 4 2,00,000/- being 50% of the price as an advance. It was contended that the plaintiffs paid only a sum of Rs. 1,95,000/-. The defendants accepted that the plaintiffs supplied bearings and other material worth Rs.39,258/- to the defendants. Thus, the defendants accepted that a sum of Rs.39,258/- was paid by the plaintiffs. The defendants also accepted that the sum of Rs.30,251/- was paid by the plaintiffs on behalf of the defendants to M/s.Auto Control and Solidtron. The contention of the defendants is that after giving credit to said amounts of Rs.39,258/- and Rs.30,251/-, an amount of Rs.55,481/- remained due and payable by the plaintiffs to the defendants. Thus, the defendants accepted that towards the price of the vaccum drier, they received amounts of Rs.1,95,000/-, Rs.39,258/- and Rs.30,251/- from the plaintiffs. It was contended in the written statement that by letter dated 12 th February 1986, the defendants had called upon the plaintiffs to pay the sum of Rs. 50,000/- which was not paid by the plaintiffs. The defendants denied that subsequently they agreed to deliver the drier on or before 3 rd March 1986. It was contended that the defendants were always ready and willing to deliver the drier provided the plaintiffs were ready and willing to pay the balance amount. The defendants contended that though a sum of Rs.30,261/- was paid by the plaintiffs to M/s.Auto Control and Solidtron, the plaintiffs took delivery of the control panel from 5 M/s.Auto Control and Solidtron but did not deliver the control panel to the defendants. The defendants prayed for dismissal of the suit. 8 The issues were settled on 21 st March 2009 which read thus : 1. Whether time for delivery was mutually extended as alleged in para 4 of the plaint ? 2. Whether plaintiffs were required to pay 75% of total consideration as alleged by the defendants ? 3. Whether the defendants have committed breach of the suit contract ? 4. Whether plaintiffs are entitled to refund of amount as prayed ? 5. What order ? 9 The plaintiffs examined Mr.Vijay Boolani, their partner by filing his affidavit in lieu of examination- in-chief. The examination-in-chief of the said witness was recorded on 17 th December 2009. The defendants did not appear on that day and no cross examination of the said witness was made. The plaintiffs closed the evidence on that day and as the defendants did not appear, arguments were heard on the very day. 10 I have considered the submissions made by the 6 learned counsel for the plaintiffs. I have perused the pleadings, affidavit in lieu of evidence and original documents placed on record. Office copy of the letter dated 1 st February 1986 sent by the plaintiffs to the defendants is at Exhibit P-2. By the said letter a demand was made by the plaintiffs to the defendants to repay the sum of Rs.2,64,590/- with interest thereon at the rate of 21% per annum. Receipts issued by the postal department of the dispatch of the letter by registered post have been also produced on record. The plaintiffs have also produced an office copy of the letter dated 12 th March 1986 sent by the plaintiffs to the defendants in which it was stated that there was a meeting between the parties and in the said meeting, the defendants promised to deliver the vaccum drier on 3 rd March 1986. By the said letter it was contended that the drier was not delivered and therefore, the defendants were called upon to give delivery. The office copy of the letter dated 22 nd April 1986 (Exhibit P-4) is produced on record along with registration receipt thereof. In the said letter it was stated that the defendants were not serious about complying with their promise. Therefore, the defendants were called upon to refund the amount. Another letter of demand was issued on 26 th February 1987 by the plaintiffs to the defendants. Office copy of the said letter along with the registration receipt thereof has been marked as Exhibit P-5. There is a communication 7 issued by the defendants on 12 th December 1984 addressed to the plaintiffs (Exhibit P-6). The terms and conditions on which the drier was offered to be sold by the defendants were incorporated in the said letter. 11 Even according to the case of the defendants, price of the drier was agreed to be Rs.4,00,000/- (excluding tax). According to them, 50% amount was to be paid as an advance along with the order. 30% of the amount was to be paid while work was in progress. The balance 20% of the price was to be paid at the time of delivery. It is not in dispute that the total sum of Rs.2,64,590/- was paid by the plaintiffs to the defendants. The contention of the defendants that though the plaintiffs paid a sum of Rs.30,261/- to M/s.Auto Control and Solidtron towards the price of the control panel, the plaintiffs did not deliver the control panel to the defendants. The said contention has not been substantiated by the defendants by leading any evidence. The defendants have also not adduced any evidence to show that the work of manufacturing of drier was in progress. There is no letter issued by the defendants to the plaintiffs calling upon the defendants to pay further 30% of the amount. There is no communication issued by the defendants calling upon the plaintiffs to take possession of the drier. Office copy of the letter dated 12 th March 1986 (Exhibit P-3) addressed by the plaintiffs to the 8 defendants records that the defendants had agreed to deliver the drier on or before 3 rd March 1986. There is no challenge by the defendants to the said version of the plaintiffs. 12 As stated earlier, receipt of a sum of Rs.2,65,590/- is admitted by the defendants. By the evidence of Mr.Vijay Boolani, the plaintiffs have established that the parties mutually agreed to extend the time to deliver the drier. By letter dated 26 th April 1986, the plaintiffs called upon the defendants to pay a sum of Rs. 2,64,590/-. By letter dated 26 th February 1987 the plaintiffs made demand of the said amount with interest at the rate of 21% per annum. It is alleged that neither delivery was made by the defendants nor refund was made by the defendants. Therefore, a legal notice was issued by the Advocate for the plaintiffs to the defendants calling upon them to pay the amount. There was no response to the demand. Therefore, the present suit was filed. 13 As far as the first issue is concerned, the plaintiffs have discharged their burden by proving the fact that time for delivery was mutually extended as set out in paragraph 5 of the plaint. The defendants have failed to prove that any breach was committed of the contract by the plaintiffs. In the circumstances, the 9 plaintiffs are entitled to refund of the amount with interest. As far as claim made in the suit is concerned, Exhibit E gives particulars thereof which includes principal amount of Rs.2,64,590/- with interest on the said amount at the rate of 6% per annum from 8 th May 1985. The plaintiffs have claimed further interest on the principal amount only at the rate of 6% per annum which deserves to be granted. 14 The plaintiffs have established their case by adducing evidence. The defendants have failed to adduce no evidence. Therefore, issues framed will have to be answered in favour of the plaintiffs and a decree will have to be passed against the defendants as prayed. The plaintiffs are claiming further interest at the rate of 6% per annum which deserves to be granted. 15 Hence, I pass the following order : i) The suit stands decreed as prayed. ii)The parties to act upon an authenticated copy of this Judgment. JUDGE