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2013 DIGILAW 624 (HP)

P. A. Times Industries v. Apex Marketing

2013-07-01

V.K.SHARMA

body2013
Judgment : V.K. SHARMA, J. - 1. The plaintiff, M/s P.A. Times Industries, a partnership firm, has filed the present suit for recovery of Rs.15,49,770/- (rupees fifteen lac forty nine thousand seven hundred seventy only) along with pendente elite and future interest @12% per annum against the defendant, M/s Apex Marketing on the following averments set up, vide paras 3 and 4 of the plaint:- "3. That the defendant used to purchase watches and spare parts from the plaintiff. The plaintiff used to issue separate invoices to the defendant time to time for the purchase of watches and spare parts. It is pertinent to mention here that plaintiff had been maintaining the separate running accounts of the defendant in its books of accounts wherein watches sold and payment received from the defendant is duly reflected in the books of accounts. The accounts and bills relating to transaction, with respect to sale and purchase with the defendant are properly maintained by the plaintiff. The goods/watches purchased by the defendant as per the plaintiff's invoice is given in detail below:- It would be worthwhile to mention here that the defendant has made some payment to the plaintiff out of these bills/invoices mentioned hereinabove in the table and only Rs.15,49,770/- is to be paid by the defendant to the plaintiff. 4. That despite the receipt of goods/watches, the defendant is failed to perform their part and thus has not made the payment to the plaintiff since 28- 05-2010 and hence this suit perforce. Since the defendant has received the articles/goods/watches as demanded by the defendant from the plaintiff, as such the defendant is bound to pay the outstanding amount. The goods i.e. watches/spare parts so dispatched by the plaintiff to the defendant are duly acknowledged by the defendant on the particular dates. It is pertinent to mention here that after receiving the entire watches/spare parts as demand, the defendant is duly bound to pay the price of the watches purchased from the plaintiff. As already mentioned in this para the defendant has not paid any amount to the plaintiff since 28-05-2010, consequently amount is due against the defendant. The defendant assured the plaintiff that the payment would be made to the plaintiff time to time but defendant failed to do so and defendant is liable to pay the amount i.e. Rs.15,49,770/- to the plaintiff." 2. The defendant assured the plaintiff that the payment would be made to the plaintiff time to time but defendant failed to do so and defendant is liable to pay the amount i.e. Rs.15,49,770/- to the plaintiff." 2. On being served for 13.3.2012 and failure to put in appearance on the date fixed, the defendant was proceeded against ex parte, vide order dated 1.6.2012. In its ex parte evidence, the plaintiff has examined its Senior Manager (Accounts)-cum-special power of attorney, Sh. Vinod Rana, as PW.1, who has deposed on oath as under:- "Stated that I am working as Senior Manager (Accounts) in the plaintiff-firm. I also hold special power of attorney on behalf of the plaintiff-firm to prosecute the present case. The power of attorney is Ext.PW.1/A. The plaintiff is a partnership firm with two partners, namely H.S. Purewal and M.S. Purewal. The plaintiff-firm is engaged in manufacture of watches/watch parts, electrical circuit boards (ECBs), coils and stapper motors etc. The registered office of the plaintiff-firm is at Dharampur, District Solan, H.P. The defendant M/s Apex marketing was our distributor for sale of watches. The defendant also used to buy spare parts from us. The plaintiff-firm was having business dealings with the defendants since 2007-2008. We had been maintaining the accounts in respect of the supplies made to the defendant. The statement of accounts is Ext.PW.1/B (11 leaves). It has been prepared by me and bears my signatures. As per statement of accounts Ext.PW.1/B, the defendant owes a sum of Rs.15,49,770/- (fifteen lac forty nine thousand seven hundred seventy only) to the plaintiff firm on account of supplies made on and after 28.5.2010. Earlier to that the plaintiff-firm had been making supplies to the defendant and the latter used to make the payment. The plaintiff-firm used to make supplies to the defendant through courier service. The bills relating to the period 28.5.2010 to 24.6.2010 are Ext.PW.1/C.1 to PW.1/C.20 detail thereof is Ext.PW.1/C.21. Earlier to that the plaintiff-firm had been making supplies to the defendant and the latter used to make the payment. The plaintiff-firm used to make supplies to the defendant through courier service. The bills relating to the period 28.5.2010 to 24.6.2010 are Ext.PW.1/C.1 to PW.1/C.20 detail thereof is Ext.PW.1/C.21. We used to make supplies to the defendants through courier service known as 'Gati Ltd.' The courier documents in respect of the supplies made under bills Exts.PW.1/C.1 to PW.1/C.20 are Ext.PW.1/D.1 to PW.1/D.9, which were received back by us after delivery of the goods to the defendant by the courier service and the same bear signatures of the persons, who had received the supplies for the defendant and stamps of the defendant, which are encircled in red and marked as A to J. The plaintiff had been demanding payment of the aforesaid sum of Rs.15,49,770/- (fifteen lac forty nine thousand seven hundred seventy only) from the defendant from time to time, but the defendant failed to make the payment. Accordingly, the plaintiff served legal notice dated 25.3.2011 upon the defendant through registered post, as also speed post. Copy of the notice is Ext.PW.1/E and the postal receipts are Exts.PW.1/F and PW.1/G. The defendant did not reply the notice despite having received the same. As the defendant failed to make the payment, the plaintiff-firm was compelled to file the present suit against it. It is prayed that the suit may be decreed along with interest and costs." 3. The above ex parte evidence remains totally un-rebutted. Taking into consideration the oral and documentary ex parte evidence led on behalf of the plaintiff, a case is made out for grant of a decree for recovery of Rs.15,49,770/- (rupees fifteen lac forty nine thousand seven hundred seventy only) in favour of the plaintiff and against the defendant on account of unpaid amount of bills Exts.PW.1/C.1 to PW.1/C.20, relating to supply of watches and spare parts for the period 28.5.2010 to 24.6.2010. It being a commercial transaction, the plaintiff is also entitled for interest @12% per annum, as prayed for. 4. It being a commercial transaction, the plaintiff is also entitled for interest @12% per annum, as prayed for. 4. In view of the above, the suit of the plaintiff is decreed against the defendant ex parte with costs and the former is held entitled to recover a sum of Rs.15,49,770/- (rupees fifteen lac forty nine thousand seven hundred seventy only) from the latter along with pendente lite and future interest @12% per annum, with effect from the date of filing of the suit, that is, 2.7.2011 till payment/realization.