P.p. Jewellers Pvt. Ltd v. Modern New Kapoor Jewellers Pvt. Ltd

G.S. Sistani, J.(Oral)Plaintiff has filed the present suit under the provisions of Order 37 CPC for recovery of Rs.81.72 lacs with pendente lite and future interest. As per the plaint, the business transaction between the plaintiff and the defendant took place against plaintiffs two invoices being No.02585 dated 1.7.2010 and the invoice No. 02879 dated 14.7.2010. The invoices were signed by the director of the defendant company i.e. Sita Ram Kapoor in acknowledgment of purchasing new ornaments, which were duly described in the invoices which reads as under:

Invoice

Description

Amount

02585 Dated 01.07.2010

New Ornaments-purity 22Cts. Gross Weight (Gms)- 5736.460 Net Weight (Gms)- 5736.460

1,08,59,954/- + Vat @ 1% 1,08,600 Total 1,09,68,554/- 33,91,960/-

02879 Dated 14.07.2010

New Ornaments-purity 18Cts. Gross Weight (Gms)- 1169.040 Net Weight (Gms)- 1169.040

36,93,258/-

Diamonds (Cts.)-154.76 New Ornaments-Purity 14 Cts.

+ Vat @ 1% 70,853/-

Gross Weight (Gms)- 1025.560 Net Weight (Gms)- 1025.560 Diamonds (Cts.) - 215.690

Total 71,56,071/-

2. Further as per the plaint the defendant made payments against the part invoices by sending remittance through its bank and also by issuing account payee cheques in favour of the plaintiff. The cheques were handed over which were duly encashed, however, further unpaid amount was given through cheque bearing No.981943 dated 29.6.2011 drawn on Barclays Bank, Nehru Place, New Delhi, for the sum of Rs.72.0 lacs which was handed over to the plaintiff. Upon presentation the aforesaid cheque was returned with the remarks Exceeds arrangement.

3. It is pointed out that the original cheque has been filed under the proceedings of Negotiable Instruments Act, however, a certified copy of the cheque has been placed on record. The defendant was served with the summons in the prescribed form; address for service was filed, however, there is no application for leave to defend on record.

4. It may however, be noticed that on making a statement by counsel for the defendant on 21.10.2013 that an application for leave to defend has been filed by diary No. 89066 dated 31.5.2013, the defendant was directed to check up with the Registry and place the application on record after removing the defects. As per the report of the Registry no such application has been filed.

5. In the absence of any application for leave to defend, as per Rule 3 (5) of Order 37 CPC, the present suit is decreed. Plaintiff will be entitled to interest @8% pendente lite and future interest at the same rate till realization.

I.A. 6809/2012 & I.A. 1037/2013

6. In view of order passed in the suit, the applications stand disposed of.