1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO.2427 OF 1988 M/s.Krishnanlal Hiralal ...Plaintiffs vs. M/s.Shchem Corporation ...Defendants Mr.Kirit J. Hakani for the plaintiffs None for the defendants CORAM :A.S.OKA,J. DATE : DECEMBER 17, 2009 JUDGMENT : 1 The plaintiffs have filed a suit for recovery of sum of Rs.1,53,400/- from the defendants. 2 The case of the plaintiffs is that the defendants had placed a purchase order dated 8 th April 1987. Under the purchase order, the defendants ordered the plaintiffs to supply 300 kgs. Of 3-4-5-Trimethoxy Benzlhyde in two lots of 150 kgs each. The rate quoted was Rs.600/- per kg. Reliance is placed on the terms and conditions of the sale order. 3 According to the case of the plaintiffs, they sold 350 kgs of the said material in the lots of 150 kgs and 200 kgs at the rate of Rs.600/- per kg. The goods were sold and delivered under two invoices dated 9 th April 1987 and 23 rd April 1987 in the amounts of Rs.93,600/- 2 and Rs.1,24,800/- respectively. 4 According to the case of the plaintiffs, various part payments set out in paragraph 6 of the plaint have been made. According to the plaintiffs total part payment of Rs.65,000/- was made by the defendants. 5 As the balance amount was not paid and Hundies were returned dishonoured, by letter dated 24 th July 1987 the plaintiffs called upon the defendants to pay the balance amount. According to the plaintiffs a false reply was given to the said letter. Therefore, the present suit is filed for recovery of the amount which is mentioned above. 6 Written statement was filed by the defendants contesting the claim of the plaintiffs. The defendants made a counter claim against the plaintiffs. The issues were settled on 30 th march 2009. The settled issues are as under : 1. Whether the plaintiffs prove that they are entitled to recover a sum of Rs.1,43,400/- with interest ? 2. Whether the plaintiffs prove that they had sold, supplied and delivered to the defendants the goods, more particularly described in para no.2 and 3 of the plaint ? 3. Whether the plaintiffs prove that the defendants 3 failed to honour the Hundis more particularly, set out in paragraph no.4 of the plaint ? 4. Whether the plaintiffs prove that they have paid to the defendants a sum of Rs.65,000/- as stated in paragraph no.2 of the plaint and further sum of Rs. 500/- as stated in paragraph nos.2 and 4 of the written statement ? 5. Whether defendants prove that the plaintiffs placed an order for the goods, more particularly, as described in the paragraph no.5 of the written statement and same was supplied ? 6. Whether the defendants prove that a sum of Rs. 48,602/- was due and payable and as against that the defendants agree to supply further quantity of goods, more particularly, as stated in paragraph no. 6 and 7 of the written statement ? 7. Whether the defendants prove that they are entitled to recover a sum of Rs.1,64,572.80 Ps. Along with interest in terms of their counter claim dated 15 th march 1989. 8. What order and relief ? 7 The plaintiffs examined one Mr.Yogesh Krishnalal Mohta as partner by filing his affidavit in lieu of examination in chief. The evidence of the said witness was recorded by this court on 9 th December 2009. True copies of the various documents were produced by the 4 plaintiffs. This Court permitted the plaintiffs to lead secondary evidence of the original documents by producing the true copies thereof. Accordingly, documents produced by the plaintiffs have been admitted in evidence. There was no cross examination of the said witness made by the defendants as none appeared for the defendants. There is no evidence adduced by the defendants. 8 I have heard the learned counsel for the plaintiffs. Apart from the making oral submissions, he has submitted written arguments. Perusal of the examination in chief of the witness shows that the purchase order dated 8 th April 1987 at Exh.P-2 has been duly proved. The purchase order was for material weighing 300 kgs which was to be delivered in two lots of 150 kgs each. The rate of Rs. 600/- per kg plus sales tax has been specifically incorporated in the purchase order. Payment term was 30 days only . Exhibit P-3 and P-4 are the invoices. The first invoice is in the sum of Rs.93,600/- and the second invoice is of Rs.1,24,800/-. Copies of Hundies are at Exh.5 and Exh.6. Exh.P-7 is a letter at 24 th July 1977 by which the plaintiffs called upon to pay the amounts of Rs.93,600/- and Rs.1,24,800/- which are the amounts covered by the invoices. The Advocate s notice dated 11 th June 1988 at Exh.P-8 was issued calling upon the defendants to pay the outstanding amount. 5 9 Notice was replied to by letter dated 18 th June 1988 (Exhibit P-9). The fact that the goods were purchased from the plaintiffs was admitted by the defendants. The defendants came out with a case that by mutual agreement it was decided that the defendants will supply to the plaintiffs certain material as consideration towards the balance payment of the price of the goods supplied and sold to the defendants. Reliance is placed in the reply on the certain invoices showing supply of the goods by the defendants to the plaintiffs. 10 In short, the contention of the defendants in the said reply is that the balance price of the goods sold and supplied by the plaintiffs was to be adjusted against the price of certain goods agreed to be sold by the defendants to the plaintiffs. In paragraph 11 of the affidavit in lieu of examination in chief the witness of the plaintiffs has specifically stated that the plaintiff had not placed any order with the defendants for supply of any goods and have not received any goods from the defendants. He has specifically denied the allegation of the defendant in the reply to the notice and in the written statement that the goods worth Rs.1,64,572.80 have been supplied by the defendants to them. 11 The defendants have specifically admitted receipt of the goods from the plaintiffs worth Rs.2,18,400/-. 6 Their case is that that they have paid a sum of Rs. 65,000/- to the plaintiffs. Their specific case is that the balance amount was not payable as the plaintiffs were liable to pay a sum of Rs.1,64,572.80 to them being the price of the goods supplied by them to the plaintiffs. The defendants have not adduced any evidence to show that they have supplied and sold goods to the plaintiffs as contended by them and that the price of the said goods was to be adjusted against the amount payable by the defendants to the plaintiffs. The defendants have made counter claim for recovery of the price of the goods allegedly sold and supplied by them to the plaintiffs. No evidence has been adduced to prove the said claim. In absence of any proof in support the said of the said contention, the position which emerges is that out of total sum of Rs.2,18,400/- payable under the two invoices, only a sum of Rs. 65,000/- has been paid by the defendants to the plaintiffs and therefore, the defendants are liable to pay the balance amount of Rs. 1,53,400/-to the plaintiffs. 12 The plaintiffs have prayed for further interest at the rate of 12% per annum on the decretal amount. The transaction between the parties was a commercial transaction. Considering the facts and circumstances of the case, further interest at the rate of 9% per annum deserves to be granted. 7 13 The suit will have to be decreed and the counter claim made by the defendants will have to be dismissed. 14 Hence, I pass the following order : i) The suit stands decreed as prayed with a modification that further interest will be payable at the rate of 9% per annum. ii)The counter claim of the defendants is dismissed. The defendants shall pay costs of the counter claim to the plaintiffs. iii)The defendants have deposited a sum of Rs. 75,000/- in this court as a condition for granting leave to defend. The plaintiffs will be entitled to withdraw the said amount with interest accrued thereon towards the satisfaction of the decree. However, the withdrawal will be permitted only after expiry of period of eight weeks from today. JUDGE