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2016 DIGILAW 891 (CAL)

Bhikam Chand Dudheria v. Pran Gopal Saha

2016-11-21

RANJIT KUMAR BAG

body2016
JUDGMENT : R.K. Bag, J. The plaintiff is a proprietorship firm and dealing in business of cloth and dress materials. The defendant is also a proprietorship firm and carrying on business of cloth and dress materials. In the year 2013 the defendant approached the plaintiff for supply of clothes and dress materials to the defendant for sale and undertook to make payment within a period of 15 – 20 days from the date of receiving the goods. The plaintiff supplied clothes and dress materials to the defendant as per the order placed by the defendant from the year 2013 till the month of October, 2014. The plaintiff raised several invoices upon the defendant on account of the goods supplied by the plaintiff and the last invoice was raised on May 30, 2014 and the supply was also made on May 30, 2014. The defendant delayed payment on various pretexts and ultimately issued cheques in favour of the plaintiff for an amount of Rs.1,51,064/- in the month of February, 2015 and March, 2015. The defendant also issued cheques in favour of the plaintiff for a sum of Rs.1 lakh in the month of August, 2015, but all those cheques were dishonoured on presentation in the bank. The defendant, thus, defaulted in making payment to the tune of Rs.16,30,292/- to the plaintiff till November 27, 2014. The plaintiff sent one letter to the defendant on September 7, 2015 calling upon the defendant to make payment of outstanding dues to the tune of Rs.16,30,292/- and stopped supply of further clothes and dress materials to the defendant. The plaintiff has instituted the suit for a decree for a sum of Rs.16,30,292/- along with interest @ 18% per annum from the defendant. 2. It appears from the certificate issued by the Deputy Sheriff on January 29, 2016 that the summons was duly served on the defendant by speed post. Nothing is on record to indicate that the defendant has entered appearance in the suit after service of summons on January 11, 2016. Accordingly, the suit has been taken up for hearing as “undefended suit”. 3. The only point for consideration of the court is whether the plaintiff is entitled to get the decree as prayed for. 4. Nothing is on record to indicate that the defendant has entered appearance in the suit after service of summons on January 11, 2016. Accordingly, the suit has been taken up for hearing as “undefended suit”. 3. The only point for consideration of the court is whether the plaintiff is entitled to get the decree as prayed for. 4. It transpires from the evidence of the witness, Bhikam Chand Dudheria, that the plaintiff supplied goods to the defendant on the basis of verbal order placed by the defendant. The copy of 52 challans [collectively Ext. ‘A’] indicate that the plaintiff supplied goods to the defendant for a sum of Rs.20,96,352/-during the period from May 8, 2013 to April 30, 2014. The copy of challans bearing signature of the representative of the defendant on the reverse of the said challans [collectively Ext. ‘C’] indicate that the said goods were received by the defendant in due course. The oral testimony of the witness, Bhikam Chand Dudheria, coupled with the print-out of the table prepared by the witness in his office [collectively Ext. ‘B’] go to establish that the plaintiff received Rs.4,66,060/-from the defendant, though the plaintiff supplied materials to the defendant worth Rs.20,96,352/-. The witness Bhikam Chand Dudheria, has stated in his evidence that seven cheques for total amount of Rs.1,75,000/- issued by the defendant in favour of the plaintiff on account of payment for the goods supplied by the plaintiff, were dishonoured on presentation of the same in the bank. The said cheques have been proved and collectively marked Ext. ‘D’. 5. The witness, Bhikam Chand Dudheria, has proved the letter dated September 7, 2015 along with the tracking report of the postal department [collectively Ext. ‘E’]. It appears from the said letter and the tracking report [Ext. E] that the plaintiff sent the letter to the defendant calling upon the defendant to pay the outstanding dues of the plaintiff to the tune of Rs.16,30,292/- along with the interest at the rate of 18% per annum and the said notice was duly received by the defendant. Since the defendant has not paid the outstanding dues of the plaintiff in spite of receiving the goods from the plaintiff as per the order placed by him, the defendant is bound to pay to the plaintiff Rs.16,30,292/- along with interest. Since the defendant has not paid the outstanding dues of the plaintiff in spite of receiving the goods from the plaintiff as per the order placed by him, the defendant is bound to pay to the plaintiff Rs.16,30,292/- along with interest. The plaintiff has claimed interest at the rate of 18% per annum, but I do not find any basis of claiming interest at the rate 18% per annum. Accordingly, I am of the view that the plaintiff can realise interest from the defendant at the rate 8% per annum from the date of institution of the suit on September 28, 2015 till the date of realisation of the entire amount from the defendant. 6. In view of my above findings, the plaintiff do get a decree ex parte against the defendant for a sum of Rs.16,30,292/- along with interest at the rate of 8% per annum for the period from September 28, 2015 till the date of realisation of the entire decreetal dues. Leave is granted to the plaintiff to take back the original cheques deposited by the plaintiff after replacing the same with the certified copy. The department is directed to draw up the decree expeditiously.