- 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 ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION SUIT SUIT SUIT NO.1716 OF 1995 NO.1716 OF 1995 NO.1716 OF 1995 Anup Babulal Shah ...Plaintiff vs. Suraj Mukhi Market Media Pvt.Ltd. Indo-French Bio-Tech Enterprises Ltd. ...Defendants Ms A.H.Masand for the plaintiff None for the defendants CORAM CORAM CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : DECEMBER 1,2008 : DECEMBER 1,2008 : DECEMBER 1,2008 JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard the learned counsel for the plaintiffs. The present suit has been filed by the plaintiffs for recovery of a sum of Rs.13,51,691.40 together with interest thereon at rate of 21% p.a. on the principal amount from the date of institution of the suit till the date of realization or payment. 2. According to the case of the plaintiff, an order was placed by the 1st defendant with the plaintiff for printing of various materials mentioned in the said order. According to the order placed by the 1st defendant, the printing work enstrusted to the plaintiff was for the benefit and use of the 2nd defendant. incomplete para 3. The case of the plaintiff is that when he approached the 1st defendants with a demand for payment bills, the 1st - 2 - defendant promised to make payment by stating that the amount will be paid as soon as his dispute with the 2nd defendant was settled. When demand was made to the 2nd defendant, a case was made out that the 2nd defendant had already paid a sum of Rs.15,00,000/- to the 1st defendant for making payment to the plaintiff. The plaintiff has referred to the correspondence made by the Advocate for the plaintiff with the defendants and also correspondence made by the Advocates representing for the 1st and 2nd defendants. 4. The case of the plaintiff is that the 2nd defendant is the principal and the 1st defendant was an agent of the 2nd defendant for the purpose of getting the printing work done from the plaintiff. 5. Unconditional leave to defend was granted in favour of the defendants. However, they have failed to file the written statement. The plaintiff examined himself by filing his affidavit in lieu of examination in chief. His examination in chief was recorded on 7th December 2007. On that day, none appeared for the defendants and therefore, the evidence of the plaintiff was closed. The defendants have not appeared to contest the suit. 6. Perusal of the evidence of the plaintiff shows that the - 3 - delivery challans have been duly proved and the same have been marked as Exh.P-4 to P-25. The said challans prove the delivery of material to the 1st defendant. The bills issued by the plaintiff from time to time have been proved in evidence and the same have been marked as Exh.27 to Exh.35. The agreement executed by and between 1st and 2nd defendants dated 15th February 1992 (Exhibit 46) has been proved in evidence. Exh.P-47 is the notice of demand issued by the Advocate for the plaintiff to the defendants. The said notice was replied to by the Advocate for the 1st defendant by reply dated 14th October 1994 (Exh.P-48). In the said reply, it is contended that the order placed by the 1st defendant was on behalf of the 2nd defendant. It is contended that the 2nd defendant had apprised the plaintiff of the defects in the printing jobs. The Advocate for the 2nd defendant replied to the notice by his reply dated 5th October 1994 (Exh.P-49). In paragraph 5 of the reply, the Advocate for the 2nd defendant admitted that the materials were printed for the 2nd defendant. However, the 2nd defendant denied the liability to pay the amount. 7. Thus, the plaintiff has established that the 1st defendant had placed an order for printing certain material on behalf of the 2nd defendant. The delivery of the printed material was made by the plaintiff to the 1st defendant. The reply sent by the 2nd defendant to the notice of demand of the Advocate for - 4 - the plaintiff discloses the fact that the order was placed by the 1st defendant on behalf of the 2nd defendant. There is no evidence adduced by the defendants to show that there was any defect in the printed material. There is evidence on record to show that the 2nd defendant was the principal and the 1st defendant acted as his agent. 8. The principal amount claimed by the plaintiff is Rs.9,43,592/-. The plaintiff has also claimed interest on unpaid amount of bills at the rate of 18% per annum. up to the date of institution of the suit. As per the particulars of the claim (Exh.J to the plaint) the total amount comes to Rs.13,51,641.40. The claim to that extent will have to be decreed. The only question which remains to be decided is about the rate at which the interest under section 34 of the Code of Civil Procedure,1908 should be granted. There is no stipulation between the parties as regards the rate of interest payable on the unpaid bills. Considering the facts and circumstances of the case, interest deserves to be granted at the rate of 10% p.a. 9. Hence, I pass the following order : i) The suit is decreed in terms of prayer clauses (a) to (c) with a modification that the further interest payable on a sum of Rs.9,43,592/- will be at the rate of 10% p.a. from the date of suit till realization. - 5 - JUDGE JUDGE JUDGE