1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.67 of 1999 Rajesh B. Asrani .. Plaintiff versus M/s.Surinco Workwear pvt.Ltd. .. Defendant ... Mr.Hemant B. Sethi for the plaintiff CORAM : D.G. KARNIK, J DATED : 10th June 2009 P.C:- 1. Heard learned counsel for the plaintiff. Defendant and its advocates are absent when called. 2. The case of the plaintiff is that as per the order placed by the defendant, which is a Private Limited Company, the plaintiff sold, supplied and delivered goods (garments) to the defendant. The goods were supplied under three different invoices dated 13th December 1995, 20th December 1995 and 11th January 1996. The defendant received the goods and made part payment in respect of the first invoice. However, the defendant failed and neglected to pay the balance amount. Plaintiff therefore by its advocates notice demanded the payment but the defendant failed and neglected 2 to pay and raised a false dispute that the goods were supplied late, after the export of the order of the defendant was cancelled and therefore defendant is not liable to make the payment. The defendant disputed its liability and contested the Summons for Judgement. Conditional leave to defend was granted to the defendant subject to deposit of Rs.1,32,000/-. The defendant deposited the amount and filed a written statement. In the written statement, the defendant admitted that the goods were supplied by the plaintiff. As regards the first two invoices/bill no.28 and 13, he pleaded that part payment was made. As regards the third invoice bearing bill no. 31, it contended that the goods covered under the said bill are not supplied in time. Time for supply was essence of the contract. As the goods were supplied late, the export order for the fulfillment of which he had purchased the goods was cancelled. He could not execute the export order and therefore he had requested the plaintiff to take back the goods. The defendant is therefore not liable to pay the price of the third bill. 3. On these pleadings, following issues were framed: ISSUES i) Do the plaintiffs prove that they sold and delivered to the defendants, goods amounting to Rs.2,56,192/0 as per the Invoice Nos.28, 30 and 41 of the respective dates? 3 ii) Do the plaintiffs prove that the defendants failed and neglected to pay the sum of Rs.3,59,306/- being the cost of the goods and the interest thereon as set out in particulars of plaintiffs claim? Iii) Do the defendants prove that the goods received by them were of defective quality and as such they were not liable to pay the amount to the plaintiffs? iv) What reliefs and orders are the plaintiffs entitled to? My answer to the issues are Issue Nos.1 and 2 in the affirmative Issue No.3 in the negative Issue no.4 As per order below REASONS 4. The matter came up before this Court for hearing on 30th August 2008 when the defendant and his advocate were absent. This Court (Coram R.Y. Ganoo, J) therefore directed the plaintiff to produce the original documents and produce evidence. Accordingly plaintiff has filed original documents on record. Plaintiff has also filed affidavit of Mr.Rajesh Asrani (plaintiff) in lieu of examination in chief. The 4 defendant and its advocate are absent when called and there is no cross examination of the plaintiff s witness. Plaintiff s evidence has gone unchallenged. 4. Plaintiff has produced on record office copies of the three invoices bearing nos.28, 13 and 41. The office copies bear signature of the defendant made in token of receipt of the goods. In the written statement also, the defendant has not denied receipt of the goods. By an advocates notice dated 14th April 1997, the plaintiff demanded paayment. The defendant replied to the said notice through its advocate on 30th April 1997. In the said reply also the defendant has not disputed the receipt of the goods. In the paragraph no. 1 of the reply, after the setting out of the three bills sent by the plaintiff the defendant contended that it had made part payment of Rs.16,186/- to the plaintiff and therefore, the said sum is required to be deducted. Perusal of the plaint shows that the plaintiff has given a credit to the defendant of the said sum of Rs.16,286/-. In paragraph no.2 of the reply, the defendant has admitted the receipt of the goods under the third bill no.21 for Rs.1,25,466/-. He however contended that the goods were not delivered in time and were received by the plaintiff after the export order in the hands of the plaintiff was cancelled. He therefore informed the plaintiff to take back the goods but the plaintiff did not take them back. Therefore, the defendant 5 is not liable to make the payment. The same defence is repeated in the written statement. 5. Mr.Rajesh Asrani in his affidavit has denied this contention of the defendant. He has denied that the goods were not delivered in time. He has specifically denied that the defendant informed the plaintiff to take back the goods and that he had agreed to take them back. This statement of the plaintiff has gone unchallenged. The defendant has not produced any evidence on record to show within what time the plaintiff was required to supply the goods and that the supply was made after that date. There is no written or even oral evidence on record to show that the goods were supplied late by the plaintiff. In the circumstances, defence of the defendant that the goods were supplied late, and therefore he rejected them cannot be accepted and has not been proved by the defendant. For these reasons, issue nos.1 and 2 are answered in the affirmative and issue no.3 is answered in the negative. 6. As regards the interest, invoice mentions that the defendant would be liable to pay interest @ 30% p.a. Plaintiff has charged interest @ 18% p.a which is less than the interest agreed upon by the defendant by unconditionally signing the invoices. In my view therefore, plaintiff is also entitled to interest on the principal sum. 6 7. The total value of the invoices is Rs.2,56,192/-. After giving a credit of Rs.16,826/- paid by the plaintiff principal amount due comes to Rs.2,39,266/-. In addition the plaintiff is entitles to interest of Rs.1,20,000/- prior to the suit. 8. As regards the future interest, in my view, taking into consideration the fact that the transaction was a commercial transaction, plaintiff is entitled to interest at the commercial rate u/s.34 of the Code of Civil Procedure. Hence, I pass the following order:- O R D E R 9. Defendant shall pay to the plaintiff a sum of Rs. 3,59,366/- together with interest on the principal sum of Rs.2,39,266/- @ 12% p.a rom the date of the suit till payment and all costs of the suit. Plaintiff is permitted to withdraw the amount which has been deposited in the court along with interest. Credit shall be given to the defendant of the amount with interest so withdrawn. (D.G. KARNIK, J)