MAHINDER NARAIN ( 1 ) THE plaintiff Smt. Santa Devi has filed this suit as proprietor of M/s. Essbee Associates,claiming decree in the sum of Rs. 1,04,100. 00 with costs, against the defendants on account of recovery of advance of Rs. 26,100. 00, and damages for the loss of profit in the sum of Rs. 78,000. 00. ( 2 ) THE order dated 21. 01. 1991, passed by the Joint Registrar, notes that the service was effected on the defendants, but none was present on their behalf. He had directed on that date that the matter be listed before the Court. The matter came up before the Court on 26. 02. 1991 and none was present on behalf of the defendants. It again came up before the Court on 14. 03. 1991 when the Hon ble Judge was on leave. ( 3 ) ON 15. 04. 1991 when none was present for the defendant, the Court renotified the matter for 09. 08. 1991. On 09. 08. 1991 the defendants were directed to be proceeded against ex parte, and it was directed that ex parte evidence by way of affidavit be filed, within six Weeks. Evidence by way of affidavits was filed by the plaintiff Smt. Sarita Devi, and Shri S. K. Khaitan, who is stated to be the husband of the plaintiff. ( 4 ) AS regards the documents, they are exhibit marked. Ex. P. 1 is the Memo of Understanding which is written in hand. Ex. P. 1/1 is another document, which is purported to be specification prescribed for 14" Black and White Televisionsets to be manufactured for Essbee by Sippy. Ex. P. 2 is the letter written by S. K. Khaitan, Chief Executive Of M/s. Essbee Associates to M/s. Sippy Electronics, defendant No. l, and Ex. P. 3 is the letter writen to M/s. Sippy Electronics for Smt. S. D. Khaitan. Ex. P. 4 is a cheque-book and Ex. P. 5 is a puss-book of Bank of Baroda. Ex. P. 6 is the letter written to the Manager, Bank of Baroda by S. K. Khailan. Ex. P. 7 is the certificate issued by Bank of Baroda, certifying that the cheque for Rs. 25,000. 00 was presented through clearing by P. N. B, C. H. B. Delhi, cleared on 27. 09. 1988 as per their record. Ex. P. 6 is the letter written to the Manager, Bank of Baroda by S. K. Khailan. Ex. P. 7 is the certificate issued by Bank of Baroda, certifying that the cheque for Rs. 25,000. 00 was presented through clearing by P. N. B, C. H. B. Delhi, cleared on 27. 09. 1988 as per their record. ( 5 ) ACCORDING to the affidavit evidence of the sole proprietor of M/s. Essbee Associates, the plaintiff, "agreement" was entered into between the plaintiff and M/s. Sippy Electronics Pvt. Ltd. , defendant No. l, through its director defendant No. 2, for the supply of 300 television sets of models 14" Black and White television. 100 pieces of each model were to be supplied by the defendant to the plaintiff. It is also asserted that the first lot of 200 pieces were to be delivered by 15. 10. 1988, and the time was the essence of the contract ( 6 ) THE affidavit further says that the terms and conditions were agreed upon and were incorporated in the Memo of Understanding, which was signed by S. C. Gupta, defendant No. 2, and that the same is marked as Ex. P. 1. It is also asserted that S. C. Gupta wrote and signed the Memo of Understanding in presence of the deponent. ( 7 ) IT is also stated that an advance of Rs. 110. 00 was given in cash, and a cheque for Rs. 25,000. 00 was given by the plaintiff firm to the defendant S. C. Gupta for and on behalf of defendant No. 1, the cheque being numbered as 034214 dated 25. 09. 1988. It is asserted that the total amount received was Rs. 26,100. 00. ( 8 ) IT is also stated in the affidavit that as per the agreement, the plaintiff supplied a monogram on 30. 09. 1988, and one Black and White television set of 14" size was given vide bill No. 1233 dated 12. 10. 1988 for inspection, and the same was found to be defective by the plaintiff s Engineers Mr. Aditya Nagpal and Mr. Vipul Kathuria. It is also stated in the affidavit that the said Engineers also represented to the defendants the defects should be removed. The defendants promised to rectify the defects and agreed to supply 300 pieces of television sets in accordance with the specification after removing the defects. Aditya Nagpal and Mr. Vipul Kathuria. It is also stated in the affidavit that the said Engineers also represented to the defendants the defects should be removed. The defendants promised to rectify the defects and agreed to supply 300 pieces of television sets in accordance with the specification after removing the defects. ( 9 ) IT is further asserted that the plaintiff had orders in hand, and was expecting to make profit of Rs. 260. 00 from each television set. None of the 300 pieces having been supplied to the plaintiff, the plaintiff assessed net loss of Rs. 78,000. 00. The affidavit says that damages assessed by the plaintiff are rupees 1 lac besides Rs. 78,000. 00, however, the claim in the suit is confined to Rs. 1,04,000. 00 only, representing Rs. 78,000. 00 as loss of profit and Rs. 26,000. 00 the amount given in advance. ( 10 ) THE defendant No. l is a private limited company. The Memorandum of Under- standing is stated to be signed by S. C. Gupta who is stated to be the director of defendant No. l. This is stated upon affidavit by the plaintiff. A perusal of Ex. P. l indicates that it contains illegible signatures which are attributed to S. C. Gupta. It does not say that the said Memorandum of Understanding is being made on behalf of the company, acting under the authority of the company, by stating that S. C. Gupta is signing on behalf of the company. In this view of the matter, keeping in view the provisions of section 46 (1) of the Companies Act, this Memorandum of Understanding having been made in writing, it is not possible to make Sippy Electronics liable on the basis of the Memorandum of Understanding, particularly as the said Memorandum of Understanding does not even purport to have been written on any paper or letter form which belongs to Sippy Electronics. ( 11 ) SECTION 46 (l) (a) of the Companies Act reads as under:- 46. ( 11 ) SECTION 46 (l) (a) of the Companies Act reads as under:- 46. (1) Contracts on behalf of a company may be made as follows:- (a) a contract which, if made between private persons, would by law be required to be in writing signed by the partiesto be charged therewith may be made on behalf of the company in writing signed by any person acting under its authority,express or implied,and may in the same manner be varied or discharged. ( 12 ) IN this view of the matter it is not possible to say that there is a contract between Sippy Electronics and the plaintiff, and, therefore, no loss or damage can be claimed from M/s. Sippy Electronics on account of any alleged breach of contract. And, as it is the case of the plaintiff that S. C. Gupta was acting on behalf of M/s. Sippy Electronics, no amount of damage can be claimed from him in his personal capacity also. ( 13 ) ANOTHER part of the claim of the plaintiff is that a sum of Rs. 1100. 00 was given in cash at the time of signing the Memorandum of Understanding, as also a cheque of Rs. 25,000. 00 - as an advance. Encashment of the cheque of Rs. 25,000. 00 is proved by reference to the certificate issued by Bank of Baroda, which is Ex. P. 7, wherein the Bank has certified "that cheque No. 034212 dated 25. 09. 1988 was presented through clearing by P. N. B. (Punjab National Bank) C. H. B. Delhi, and was cleared at our end on 27. 09. 1988 as per our record". These two documents - certificate by the Bank of Baroda Ex. P. 7 and the Memo of Understanding Ex. P. 1 - taking together, goes to show that money has been had and received by M/s. Sippy Electronics from S. K. Khaitan by cheque drawn on the savings bank account of S. K. Khaitan and Sarita Khaitan. S. K. Khaitan has filed affidavit evidence, stating that he is the husband of Sarita Devi who is the sole proprietor of M/s. Essbee Associates Pvt. Ltd. He says that a sum of Rs. 25,000. 00 was given by cheque, and Rs. 1100. 00 by cash to S. C. Gupta. Reference to the pass-book which is Ex. S. K. Khaitan has filed affidavit evidence, stating that he is the husband of Sarita Devi who is the sole proprietor of M/s. Essbee Associates Pvt. Ltd. He says that a sum of Rs. 25,000. 00 was given by cheque, and Rs. 1100. 00 by cash to S. C. Gupta. Reference to the pass-book which is Ex. P. 5, shows that S. K. Khaitan and Sarita Devi Khaitan had a joint account No. 3921. It is on this account that the cheque of Rs. 25,000. 00 - was drawn, and S. K. Khaitan says that his wife paid the cheque of Rs. 25,000. 00. ( 14 ) ON the basis of the aforesaid. documents, mainly Ex. P. 7 the certificate issued by Bank of Baroda, pass-book Ex. P. 5 read with Ex. P. 1, I am satisfied that M/s. Sippy Electronics through S. C. Gupta have been recepient of Rs. 26,100. 00, and by letter dated 08. 12. 1988, written on behalf of the plaintiff, the amount received, along with damages on account of loss in profit, was demanded. There has been no response to this demand. ( 15 ) THE defendants have been proceeded ex parte in this suit ( 16 ) I am satisfied that the plaintiff is entitled to receive a sum of Rs. 25,000. 00 from defendant No. 1, and a sum of Rs. 1100. 00 from defendant No. 2. As the demand Ex. P. 3 does not have claim for interest, the plaintiff is not entitled to any interest prior to the date of the decree. ( 17 ) IN view of my holding that the plaintiff is entitled to receive a sum of Rs. 1100. 00 from defendant No. 2 on account of money had and received by him, I pass a decree for the aforesaid amount against defendant No. 2. In view of my holding that defendant No. 1 had and received -Rs. 25,000. 00 from the plaintiff, which it has failed to pay to the plaintiff, the plaintiff shall be entitled to a decree of Rs. 25,000. 00 against defendant No. l. The plaintiff shall also be entitled to costs of the suit which are quantified at Rs. 2500. 00. The plaintiff shall, in addition, also be entitled to interest at the rate of 6% per annum from the date of the decree till the date of realisation of the decretal amount. 25,000. 00 against defendant No. l. The plaintiff shall also be entitled to costs of the suit which are quantified at Rs. 2500. 00. The plaintiff shall, in addition, also be entitled to interest at the rate of 6% per annum from the date of the decree till the date of realisation of the decretal amount. ( 18 ) THE suit stands disposed of.