* IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) No.1036/2005 & IA No.10228/2008 (u/O VIII Rule 10 CPC) % Date of Decision: March 02, 2009 # M/s. Everest Box Manufacturing Co. (through its prop. Sh. Umesh Gupta) ..... Plaintiff ! Through: D.K.Mehta, Adv. Versus $ M/s. Darshan Vanaspathi .....Defendant ^(through its prop. M/s. Darshan Oils Ltd.) Through: Mr.K.K.Jha, Adv. CORAM: HON'BLE MR. JUSTICE S.N. AGGARWAL 1. Whether reporters of Local paper may be allowed to see the judgment? 2. To be referred to the reporter or not? 3. Whether the judgment should be reported in the Digest? S.N.AGGARWAL, J (ORAL) 1. This is a suit filed by the plaintiff against the defendants for recovery of Rs.31,92,080/- with pendente lite and future interest @ 10% p.a. till realization. 2. Briefly stated the facts of the case are that the plaintiff is a proprietorship firm carrying on business of manufacturing corrugated boxes under the name and style of M/s. Everest Box CS(OS)No.1036/2005 Page 1 of 6 Manufacturing Co. The plaintiff firm is on the list of approved suppliers of corrugated boxes for Hindustan Lever Ltd. During August/September, 2000 the defendant firm had approached the plaintiff firm for purchase of corrugated board boxes of various sizes for packing their plastic containers containing vegetable ghee etc. The parties to the suit had agreed for the rates and other terms and conditions of payment and quality of the corrugated boxes to be supplied by the plaintiff firm to the defendant firm from time to time. In terms of agreement between the parties the corrugated boxes were to be supplied by the plaintiff firm to the defendant firm on credit basis with five months period after delivery of goods. As per the orders placed by the defendant firm from time to time, the plaintiff firm supplied the corrugated boxes of various sizes to the defendant firm as mentioned in the bills raised upon the defendant firm. The corrugated boxes were supplied by the plaintiff firm to the defendant firm on receipt of U.P. Sales Tax Form No.31 furnished by the defendant firm. 3. The plaintiff firm had been maintaining an account of the defendant firm in its account books maintained in the regular course of business and the said account of the defendant firm maintained by the plaintiff firm showed a debit balance of CS(OS)No.1036/2005 Page 2 of 6 Rs.24,76,438.68 as on 31.8.2002 being the principal amount due against the firm on that date. Thereafter, the plaintiff firm had received Rs.5000/- from the plaintiff firm on 13.8.2004 and Rs.10,000/- by cheque on 18.4.2005 thereby leaving a balance of Rs.24,61,438.68/- as principal amount due and outstanding to the plaintiff firm from the defendant firm in respect of price of corrugated boxes supplied to it from time to time. The parties had agreed that in case the defendant firm would fail to make the payment of the supplies made to it within five months credit period then the defendant firm will be liable to pay interest on the outstanding amount at 24% p.a. However, the plaintiff in the present suit has claimed interest on the outstanding balance only at 10% p.a. in stead of agreed rate of 24% p.a. Since the defendant firm failed to make the balance outstanding payment as stated above despite service of repeated reminders including service of legal notice dated 15.4.2005, the plaintiff firm has to file the present suit seeking recovery of its outstanding amount from the defendant firm. 4. This suit was filed by the plaintiff firm on 28.4.2005. The defendant was served with summons of the suit on or around 9.12.2005 as is apparent from the proceedings of 9.12.2005. The CS(OS)No.1036/2005 Page 3 of 6 defendant has failed to file its written statement since then till date despite repeated opportunities given to it. The plaintiff has now filed an application being IA No.10228/2008 under Order VIII Rule 10 CPC seeking judgment and decree against the defendant firm for the suit amount claimed against it. The defendant firm was served with the notice of this application. Despite service of notice the defendant firm has not filed any reply to the application under Order VIII Rule 10 CPC. 5. Mr.Jha, appearing on behalf of the defendant firm requests for four weeks more time for filing of written statement saying that he does not dispute the factual position regarding service stated by the plaintiff in his application under Order 8 Rule 10 CPC. More than three years have expired since the defendant was served with the summons of the suit and, therefore, now I am not inclined to give any more time to the defendant firm for filing of its written statement. 6. I have gone through the documents filed by the plaintiff firm along with the plaint and on going through the same and particularly the statement of account which is Annexure P-2 at pages 12 to 17 of Part-III file, I am satisfied that an amount of Rs.24,61,438.68/- was due and outstanding to the plaintiff firm CS(OS)No.1036/2005 Page 4 of 6 against the defendant firm as on 18.4.2005. From a perusal of the statement of account (Annexure P-2) it may be noticed that an amount of Rs.24,76,438.68 was due and outstanding to the plaintiff against the defendant firm as on 31.8.2002 and thereafter the plaintiff had received only two part payments, one of Rs.5000/- and the second of Rs.10,000/- on 13.8.2004 and 18.04.2005 and, therefore, the plaintiff firm will be entitled to interest @ 10% p.a. on Rs.24,76,438.68 with effect from 1.9.2002 onwards till realization. While computing interest adjustment of part payment of Rs.5000/- and Rs.10,000/- made by the defendant to the plaintiff firm on 13.8.2004 and 18.4.2005 may be taken into account and the interest should be worked out on the reducing balance after adjustment of these two part payments. Since the defendant firm has failed to file written statement despite repeated opportunities given to it during last three years, the plaintiff is entitled to a judgment in its favour under Order VIII Rule 10 CPC and accordingly a decree of Rs.24,76,438.68 with proportionate costs and interest @ 10% p.a. with effect from 1.9.2002 onwards till realization is passed in favour of the plaintiff and against the defendant. The adjustment of part payments of Rs.5000/- and Rs.10,000/- made by the defendant to the plaintiff firm on 13.8.2004 and 18.4.2005 be CS(OS)No.1036/2005 Page 5 of 6 given while preparing the decree sheet. 7. Decree sheet be prepared accordingly. 8. In view of the above the main suit as well as the IA stands disposed of. March 02, 2009 S.N.AGGARWAL 'vg' [JUDGE] CS(OS)No.1036/2005 Page 6 of 6