CS(OS) No.1539/2007 Page 1 of 5 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) No.1539/2007 % Date of Decision: 28.05.2009 M/s Sampark Industries Ltd. …. Plaintiff Through Mr. Pankaj Chaudhary, Advocate for the plaintiff. Versus M/s Balaji Polymers …. Defendant Through Nemo. CORAM: HON’BLE MR. JUSTICE ANIL KUMAR 1. Whether reporters of Local papers may be allowed to see the judgment? YES 2. To be referred to the reporter or not? NO 3. Whether the judgment should be reported in the Digest? NO ANIL KUMAR, J. * 1. This is a suit for recovery of Rs.45,84,950/- under Order 37 of Code of Civil Procedure. The defendant, pursuant to the summons under Order 37 of the Code of Civil Procedure, had filed his appearance within time. Thereafter, summons for judgment was issued. After service of summons for judgment which was accepted by the defendant on 3rd April 2008, the leave to defend application was filed by the defendant. 2. Leave to defend was returned under objection, however, it was not re-filed despite various opportunities granted to the defendant on CS(OS) No.1539/2007 Page 2 of 5 31st October, 2008, 28th November, 2008. Last opportunity was granted to re-file the application for leave to defend subject to cost of Rs.10,000/-. 3. The matter was adjourned from time to time, however, the cost was not paid and on 12th May, 2009 last opportunity was granted to the defendant to pay the cost within one week. 4. On 21st May, 2009 no one had appeared on behalf of defendant nor the cost imposed vide order dated 2nd February, 2009 was paid. Therefore the application of the defendant for leave to defend and Contest Suit being IA No.2289/2009 was dismissed in default and for non-prosecution. 5. The plaintiff has sought recovery of Rs.45,84,950/- on account of job work and material supplied by the plaintiff to the defendant. The plaintiff has given the detail of invoices which were raised on the defendant for the material supplied and work done amounting to Rs.84,21,649/-. 6. The defendant made part payment and after deducting the amount paid by the defendant to the plaintiff on 1st April, 2006 a balance amount of Rs.43,57,889/- was due. After 1st April, 2006 more amounts were paid and on 10th February, 2007 it was acknowledged CS(OS) No.1539/2007 Page 3 of 5 that on 31st December, 2006 an amount of Rs.37,58,889/- was due from defendant to the plaintiff which was confirmed by the defendant in a letter addressed to Mr. Harish of the plaintiff. 7. The plaintiff has filed the copies of the invoices of the material supplied and the job work done. The invoices, however, do not stipulate as to what interest the plaintiff shall be entitled for the amount of invoices which will remain due. 8. The plaintiff had sent a notice dated 10th May, 2007 demanding the amount due from defendant to plaintiff alongwith interest @24% per annum. The defendant had also given the cheques bearing No.251151 & 251152 for Rs.5,00,000/- each which were dishonoured on account of ‘insufficient funds’. 9. The plaintiff has also claimed an amount of Rs.8,26,061/- on account of interest @24% per annum from the date of confirmation letter dated 10th February, 2007 till the filing of the present suit. The plaintiff asserted that the claim of interest @24% was not opposed by the defendant despite receipt of legal notice dated 10th May, 2007 and the rate of interest in the market and as per legal usage is also 24% per annum. CS(OS) No.1539/2007 Page 4 of 5 10. In these facts and circumstances, this cannot be disputed that a sum of Rs.37,58,889/- was due from the defendant to the plaintiff as on 31st December, 2006 which was acknowledged by the defendant on 10th February, 2007. Though, the plaintiff has claimed interest @24% per annum. However, besides making the bald allegation in the plaint that according to market custom and usage plaintiff is entitled for interest @ 24% per annum, no document has been filed with the plaint to show that rate of interest was 24% per annum. The rate of interest was also not agreed by the parties. Therefore the plaintiff is not entitled for interest @ 24% per annum as claimed by the plaintiff. However, since the amount of Rs.37,58,889/- is due from defendant to the plaintiff, the plaintiff shall be entitled for interest and therefore plaintiff is awarded interest @12% per annum from 10th February, 2007 till the filing of the suit and thus an amount of Rs.4,13,031/- is also due to the plaintiff from the defendant on account of interest. 11. Therefore, the plaintiff is entitled for a principal sum of Rs.37,58,889/- and simple interest @12% per annum till the filing of the suit amounting to Rs.4,13,031/- and thus a total amount of Rs.41,71,920/- is due from the defendant to the plaintiff 12. Thus, a decree for recovery of Rs.41,71,920/- (Rupees forty one lakhs seventy one thousand nine hundred and twenty) is passed in favour of the plaintiff and against the defendant. Pendente lite and CS(OS) No.1539/2007 Page 5 of 5 future simple interest is also awarded to the plaintiff on the decreetal amount @ 9% per annum till the realization of the decreetal amount. Cost of the suit is also awarded to the plaintiff against the defendant. Decree sheet be drawn accordingly. MAY 28th, 2009. ANIL KUMAR, J. “gsr”