: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.2590 of 2001 SUIT NO.2590 of 2001 SUIT NO.2590 of 2001 Ved Prakash Sidhwa, Indian inhabitant and proprietor of M/s.Metro Pharma Distributors, having office at 13, Andheri Ruby Apartment, M.V.Road, Andheri (E), Mumbai - 400 069 and residing at 21, Lily Villa C.H.S., St.Anne’s Church Road, Bandra (West), Mumbai - 400 050. .. Plaintiff. Versus 1. Mahadev Medical Agencies Private Limited, a company incorporated under the Companies Act, 1956 having its registered office at 7, Ganesh Mansion Sector 11, Main Road, Jugaon, Vashi, New Mumbai : 2 : 2. Maple Pharmaceuticals Pvt. Ltd., a company incorporated under the Companies Act, 1956, having its registered office at Pereira Wadi, 29th Road, T.P.S.III, Pali, Bandra (W), Mumbai - 400 050 and local office at Laxmi Krupa, Flat No.4, T.P.S. III, 24th Road, Bandra (W), Mumbai - 400 050 .. Defendants. Mr.N.R.Gandhi for the plaintiff. None for the Defendants. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATE : 19th December, 2008. DATE : 19th December, 2008. DATE : 19th December, 2008. JUDGEMENT :- JUDGEMENT :- JUDGEMENT :- 1. The plaintiff has filed this suit for recovery of Rs.1,95,568.28. Plaintiff has also prayed for interest @18% p.a. on Rs.1,27,359.47 from the date of the filing of the suit till realisation and for costs. 2. The plaintiff is a proprietor of a firm by name : 3 : M/s.Metro Pharma Distributors and was dealing with medical products. Defendant No.1 is also a distributor like plaintiff. Defendant No.2 is a company manufacturing various drugs. The plaintiff was a super stockist of the products of defendant No.1 till about April, 1998. Plaintiff, thereafter, informed defendant No.2 that after April, 1998, he would not be able to work as the stockist of defendant No.2. As a result of this, between plaintiff and defendant No.2, an arrangement was arrived at and plaintiff was directed to deliver the unsold goods of defendant No.2 to defendant No.1 and that defendant No.2 would be paying the amount covered by this goods which would be delivered to defendant No.1. According to the plaintiff, plaintiff raised invoice dated 9.7.1998 for the sum of Rs.1,27,359.47. This is because the cost of the goods delivered to defendant No.1 was Rs.1,57,464.11. Plaintiff gave trade discount and reduced the invoice cost to Rs.1,46,442/-. At the time of actual delivery of the goods, certain quantity of medicines by name Maxcal Suspension could not be delivered to defendant No.1. Hence plaintiff reduced the cost of the said goods to the extent of Rs.23,401.51. As a result of this, the goods worth Rs.1,27,359.47 came to be actually delivered to defendant No.1. Hence, according to plaintiff, defendant : 4 : No.1 as well as defendant No.2 were liable to pay to plaintiff Rs.1,27,359.47. 3. Plaintiff demanded the aforesaid monies from the defendant No.1 by sending telegrams from time to time. The plaintiff also tried to use the good offices of the defendant No.2 to get the monies but the plaintiff was unsuccessful. Plaintiff by notice dated 22.2.1999, demanded the monies from defendant No.1. Ultimately, plaintiff on 2.8.1999 gave notice to defendant No.1 under Section 434 of the Companies Act and demanded monies, failing which, the petition was to be filed for winding up of defendant No.1. As the monies were not paid, the plaintiff filed Company Petition No.34 of 2000. The plaintiff has admitted that on 11.10.1999, defendant No.2 assured to defendant No.1 that they will pay monies to Plaintiff. Such a record was produced before the court attending the Company Petition and that is how the Company Petition got disposed off. The plaintiff did not receive the monies, hence, the plaintiff filed the present suit for recovery of monies. 4. Though writ of summons was served upon the defendant Nos.1 and 2, they have remained absent before : 5 : the court and none of them filed written statement. Hence, the matter was taken up for ex-parte decree. Since, the matter was taken up for ex-parte decree, Advocate for the plaintiff filed evidence affidavit and compilation of documents. Since, no written statement is filed, issues have not been framed. 5. The court is required to see whether the plaintiff has made out the case to grant the basic claim and, if yes, with what interest. 6. With the assistance of learned Advocate Mr.Gandhi appearing on behalf of the plaintiff, I have perused the record. 7. The plaintiff’s case that the goods were delivered to defendant No.1 is in turn admitted by defendant No.1 on the basis of the endorsement appearing on the copy of the invoice raised by the plaintiff in favour of defendant No.1. The plaintiff has honestly deducted the sum of Rs.23,401.51 as goods to that extent were not delivered to defendant No.1 though included in the invoice. I have perused the entire plaint and it is the case of the plaintiff that defendant No.1 received the goods worth : 6 : Rs.1,27,359.47 and hence, the defendant No.1 is liable to pay the said amount. Sofar as defendant No.2 is concerned, the plaintiff wants that amount from defendant No.2 because an arrangement arrived at between defendant No.1 and defendant No.2 is sought to be relied upon so as to see that the defendant No.2 would pay the monies to plaintiff. The evidence affidavit clearly goes to show that the plaintiff has referred to the said arrangement in paragraph 11 of the said evidence affidavit. The case of the plaintiff that defendant No.2 promised plaintiff that the monies in regard to the goods delivered to defendant No.1 would be paid by defendant No.2 to the plaintiff has gone unchallenged. 8. After having considered the entire record, it is clear that the averments in the plaint have gone unchallenged and, therefore, the court is required to consider the case of the plaintiff from that angle. The fact that the plaintiff has delivered the goods to defendant No.1 is borne out by the invoice which is produced by the plaintiff. If this be so, defendant No.1 has received the goods and, therefore, the defendant No.1 is liable to pay to the plaintiff the sum of Rs.1.27 lacs and odd amount. It is true that there is no direct : 7 : agreement entered into between the plaintiff and defendant No.1 as regards the liability of defendant No.1 to pay to the plaintiff. However, the said defendant No.1 is liable to pay to plaintiff because he has received the goods and that he has utilised the goods to his benefit. In the present case, sofar as defendant No.1 is concerned, the provisions of Section 70 of The Indian Contract Act, 1872 (hereinafter referred to as the said "Act") can be gainfully applied. The provisions of Section 70 of the said Act clearly indicate that if certain goods or otherwise articles are delivered, a person not intending to do so gratuitously and if such person has enjoyed the benefit, such person is required to compensate the said person or to restore the things. Applying the provisions of Section 70 of the said Act to the facts of this case, defendant No.1 to whom the goods were delivered has enjoyed the benefit of the said goods and, therefore, on the basis of the provisions of Section 70 of the said Act, defendant No.1 is liable to pay to plaintiff Rs.1.27 lacs and odd amount as demanded in the plaint. 9. Sofar as liability of the defendant No.2 is concerned, on account of correspondence between defendant No.1 and defendant No.2 which is reflected in the evidence : 8 : affidavit as well as documents having been produced before the court being letter dated 11.10.1999 addressed by the defendant No.2 to defendant No.1, the case of the plaintiff that defendant No.2 had undertaken to pay the monies to plaintiff directly is made out. In any event, in the absence of any written statement from defendant No.2 the case of the plaintiff to that extent has gone unchallenged and defendant No.2 is liable to pay to plaintiff Rs.1.27 lacs and odd amount as demanded in the plaint. 10. Sofar as rate of interest is concerned, the plaintiff has prayed for interest @18% per annum. No such specific agreement is shown to have been made between the parties at the time when the goods were delivered to defendant No.1. A perusal of the invoice raised by the plaintiff against defendant No.1 goes to indicate that no specific rate of interest is quoted on the invoice. If this be so, the case of the plaintiff that plaintiff is entitled to recover from defendants interest @18% per annum cannot be accepted. Considering the facts of this case and the period when the transaction did materialise i.e. in the year 1998, I am of the view that interest @10% per annum is awarded on the basic claim of Rs.1.27 : 9 : lacs and odd amount from the date of the delivery of the goods to defendant No.1 i.e. 10.7.1998, the interest of justice would be met. Insofar as interest from the date of the filing of the suit till realisation, considering the provisions of Section 34 of the Code of Civil Procedure, I am inclined to fix the rate of interest @6% per annum. Appropriate decree shall be passed hereunder. Plaintiff, of course, would be entitled to get costs of the suit. 11. For the reasons mentioned aforesaid, I pass the following decree :- D E C R E E D E C R E E D E C R E E i) Defendants do pay to plaintiffs Rs.1,27,359.47. ii) Defendants do pay to plaintiffs interest @10% per annum from 10.7.1998 upto the date of the filing of the suit on Rs.1,27,359.47. iii) Defendants do pay to plaintiffs interest @6% per annum from the date of the suit till : 10 : realisation on Rs.1,27,359.47. iv) Defendants do pay to plaintiffs costs of the suit. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)