1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. SUIT NO.1536 OF 1999 H. S. Shobha Singh Pvt. Ltd. ...Plaintiff. Vs. Rajasthan Breweries Ltd. ...Defendant. .... Mr. V.J. Mehta i/b. Divyakant Mehta & Asso. for the Plaintiff. None for the Defendant. ..... CORAM :DR.D.Y.CHANDRACHUD, J. February 6, 2008. P.C.: The Defendant placed a purchase order dated 17th November 1995 with the Plaintiff for the purchase of certain machinery. An advance payment of Rs.90,459/- was made to the Plaintiff under an invoice dated 27th March 1996. The goods ordered were sold and supplied by the Plaintiff to the Defendant of a total value of Rs.3,52,050/-. The Plaintiff had imported the machinery from the US. Under the arrangement, the Plaintiff was to forward the documents and Lorry Receipt to the Defendant through the Plaintiff's bankers and the Defendant was to retire the documents from its own bankers against the payment of the balance amount under the 2 invoice. The case of the Plaintiff is that the documents were so forwarded to the Defendant's bankers, namely, Bank of Rajasthan Ltd., Branch at South Extension Part 2, New Delhi-110 049. The goods were, according to the Plaintiff, sent through a transporter nominated by the Defendant. The Defendant was required to pay a balance of Rs.2,61,591/- after giving credit to the advance payment. The Defendant failed to retire the documents from its bankers upon which the bankers by a letter dated 30th July 1996 informed the Plaintiff accordingly. The Defendant was called upon by a letter dated 22nd May 1997 to make payment of an amount of Rs.3,34,836/-. By a letter dated 27th June 1997, the Defendant agreed to lift the consignment, but sought waiver of the interest charges. On 20th August 1997, the Plaintiff expressed readiness to waive interest charges provided the Defendant paid an amount of Rs.2,62,116/-. The case of the Plaintiff is that the Defendant neither retired the documents nor accepted delivery. Eventually, according to the Plaintiff, the transport Company handed over the goods to the Plaintiff. The Plaintiff has also alleged that it became liable to pay an amount of Rs.30,465/- to the Central Sales Tax Authorities. The suit 3 has been instituted for a direction to the Defendant to take delivery of the consignment against the payment of the balance or in the alternative for the recovery of an amount of Rs.4,69,938/- together with future interest on the principal amount of Rs.2,61,591/-. 2. The Defendant has been served with the writ of Summons. An affidavit of service has been filed. The Defendant has not entered appearance despite service. Accordingly, the suit has proceeded as an undefended suit. The Plaintiff has relied upon an affidavit in lieu of Examination-in-Chief of its Director together with a compilation of the original documents which have been placed on the record. 3. While deposing to the material facts of the case noted above, the Plaintiff in the Examination-in-Chief of its witness has also stated that the machinery involved in the present suit was a Special Purpose Testing Equipment manufactured and was imported from the US to meet the peculiar technical specifications of the Defendant. It has been stated that the machinery has no market in India. Since the machinery was not lifted by the Defendant, the Plaintiff was left with 4 no alternative but to recall the machinery from the Transport Company and in order to avoid additional cost towards octroi and other charges, the machinery was redirected to Amritsar at a sister concern of the Plaintiff. It has been stated that in order to mitigate the loss occasioned, the Plaintiff has attempted to sell the machinery in the Indian market, but since it was designed for the special purpose of the Defendant, the machinery found no buyer in India. 4. The claim of the Plaintiff has remained to be controverted in the absence of a defence. In the circumstances, in view of the evidence that has been placed on the record, both in the form of the evidence of the Plaintiff's witness and in the form of the original documents, the suit has to be decreed and is accordingly decreed in the amount of Rs.2,61,591/-. The Plaintiff will be entitled to interest on the aforesaid sum at the rate of 9% per annum from 28th March 1992 till the date of the institution of the suit and at the same rate from the date of the suit until payment or realisation. .......