( 1 ) IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SUIT SUIT SUIT NO. 810 OF 2000 NO. 810 OF 2000 NO. 810 OF 2000 M/s. IVP Limited . Rep. by A.Mahadevan, Power of Attorney . 727, Anna Salai, Chennai-600 006 ..Plaintiffs . V/s. . 1. M/s. B.P. Refineries, . rep. by its partner Mr. Narayanadas . Sohanlal Vaid, Mumbai-400 002. . . 2. Mr.Narayandas Sohanlal Vahid . Partner, M/s. B.P. Refineries, . 57/59 Zaveri Bazar, Mumbai-400 002. ..Defendants . . Shri Moorlindharan P.C. i/by Joy Legal Consulta. for . the plaintiff . None for defendants . CORAM : A.P. DESHPANDE,J. DATED : 12TH JUNE, 2008. ORAL ORAL ORAL JUDGMENT :- JUDGMENT :- JUDGMENT :- . This is a summary suit filed by the plaintiffs under Order XXXVII Rule 2 of the Code of Civil Procedure, 1908. The defendants had claimed leave to defend the suit, which was granted subject to condition of deposit of an amount of Rs.18,01,000.63 within a period of 12 weeks from the date of the order. This Court by the same order dated 16th July, 2002, had permitted the plaintiffs to withdraw the amount after furnishing the Bank Guarantee. The defendants did not comply with the condition of deposit of the amount and thereby lost the right to defend the suit. The plaintiffs have placed on record a communication received from the Advocate and Solicitors of the defendants dated 26th November, 2002 wherein it is categorically admitted that the defendants did not deposit the amount as directed by this Court. The learned Counsel for the plaintiffs was also present ( 2 ) when this Court passed an order on 13th April, 2008 and recorded the facts of failure of the defendants to deposit the amount, subject to deposit of which leave to defend the suit was granted. Thereafter, the Counsel chose to remain absent. The plaintiffs have placed on record an affidavit of examination-in-chief of its witness by name Sharad P. Kothari who has power of attorney for the plaintiffs. Even otherwise the Counsel for the plaintiff undertakes to file on record Non Deposit Certificate from the Prothonotary and Senior Master of this Court. 2. It is the case of the plaintiffs that it is a Company incorporated under the provisions of the Companies Act and carries on business of manufacturing, import and sell of Pamolein Oil. the defendant No.1 is the partnership firm of which defendant No.2 to 4 are the partners. The present suit has been filed for recovery of the value of the goods sold and delivered by the plaintiffs from time to time to the defendants pursuant to the orders placed by them. The details of various supplies made by the plaintiffs to the defendants are more particularly mentioned in the statement annexed and marked as Exhibit ’A’ to the plaint. The plaintiffs also relied upon a business confirmation note No.904/96/97 dated 08/10/1996 issued by M/s. Dinesh Enterprises, who is a brokerage firm. The goods were supplied in between period commencing ( 3 ) from the period 18th October, 1996 to 5th November, 1997. Copies of the delivery orders, which goes to substantiate factum of the delivery of the said consignment are also placed on record, which marked as Exhibit ’C-1’ to ’C-7’. The plaintiffs raised their invoices on the defendants, in the following sums, on the dates mentioned herein below :- ------------------------------------------------------ ------------------------------------------------------ ------------------------------------------------------ SR. SR. SR. INVOICE INVOICE INVOICE INVOICE INVOICE INVOICE RBD RBD RBD PALMOIL QTY PALMOIL QTY PALMOIL QTY AMOUNT AMOUNT AMOUNT NO. NO. NO. NO. NO. NO. DATED DATED DATED DELIVERED DELIVERED DELIVERED M.TONS (RS.) M.TONS (RS.) M.TONS (RS.) ------------------------------------------------------ ------------------------------------------------------ ------------------------------------------------------ 1. 14/16 10.10.96 10.000 1,37,659.55 2. 14/19 10.10.96 9.950 2,69,649.98 3. 14/66 15.10.96 9.680 2,62,332.84 4. 14/67 15.10.96 9.580 2,59,622.79 5. 13/4287 18.10.96 9.660 2,60,810.30 6. 13/4462 28.10.96 9.860 2,66,210.10 7. 14/88 5.11.96 12.770 3,44,777.23 -------------- -------------- -------------- TOTAL TOTAL TOTAL RS. RS. RS. 18,01,062.79 18,01,062.79 18,01,062.79 -------------- -------------- -------------- 3. According to the plaintiffs, the goods were sold ex-factory and the invoices also denote the net delivered weight. As per the invoices, the defendants have failed to pay the said amount. The defendants did issue a cheque bearing No.757477 dated 1st March, 1997 for the value of the goods sold and supplied to the defendants in the sum of Rs. 18,01,063/-, however, on presentation of the said cheque through the plaintiffs’ banker, the cheque was dishonoured on 11/04/1997 with an endorsement / remark "refer to drawer" a copy of the returned cheque and bank memo is also annexed. It will not be out of place to mention that the plaintiffs did file the complaint under Section 138 of Negotiable Instrument Act against the defendant Nos.1 and 2 who ( 4 ) are the partnership firm and the acting partner who had signed the cheque. The Trial Court acquitted the accused, however, the plaintiffs carried the matter in the High Court after seeking leave to file an Appeal. In the Appeal carried by the plaintiffs to the High Court, the High Court convicted the defendant No.2 and sentenced him to under go rigorous imprisonment for one year and imposed a fine of Rs.36,2,126/- and in default to undergo three months rigorous imprisonment. The fine amount denotes that it is twice the amount of the cheque issued by the defendant. A copy of the order passed by the Madras High Court is filed on record. With a view to ascertain as to whether the plaintiffs have received any amount pursuant to the proceedings under Section 138 of Negotiable Instruments Act, Court questions were put to the witness and the PW-1 has stated that within a few months from the date of Judgment of the Madras High Court, the defendant No.2 expired and hence the fine amount could not be recovered from defendant No.2 and he also did not undergo the sentence. It is categorically stated by the PW-1 that the plaintiffs did not receive any amount whatsoever from the defendant No.2 in the proceeding under Section 138 of Negotiable Instruments Act and, hence, the present suit has been filed for recovery of the amount. The plaintiffs are thus seeking a decree for the principle amount of Rs. 18,01,062.79/- together with interest thereon @ 18% per annum, which, ( 5 ) till the date of the suit works out in the sum of Rs.9,72,574/-. Thus, the suit is for recovery of total amount of Rs.27,73,637/-. The plaintiffs are thus entitled to a decree in the said sum. In the above factual matrix, a decree need to be passed in favour of the plaintiffs. It has came on record in the evidence of PW-1 that the defendant No.2 has expired and his legal representatives are not brought on record. Thus, the suit abates against the defendant No.2. The defendant No.3, as well has expired and the suit thus, also abate against defendant No.3. In the result I pass following order:- O R D E R R D E R R D E R 1. The defendant Nos.1 and 4 are directed to pay a sum of Rs.27,73,637/- to the plaintiffs together with interest @ 12% per annum from the date of filing of the suit i.e. 15th February, 2000 till realization of the amount. Suit is Decreed with costs. 2. Decree be drawn accordingly. ( A.P. Deshpande,J.) A.P. Deshpande,J.) A.P. Deshpande,J.)