* IN THE HIGH COURT OF DELHI AT NEW DELHI
PRONOUNCED ON: 14.12.2009
+ CS (OS) 1244/2008, I.A. Nos. 7676/2008, 10067/2008 & 8997/2009 M/S SALVIA INTERNATIONAL ..... Plaintiff Through: Mr. Arun Aggarwal, Mr. Manish Kumar
and Mr. Jatin Aggarwal, Advocates.
AIMIL PHARMACEUTICALS (INDIA) LTD. ..... Defendant Through: None.
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes.
2. To be referred to Reporter or not? Yes.
3. Whether the judgment should be Yes. reported in the Digest?
HON'BLE MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)
1. The plaintiff seeks recovery of Rs.48,54,472.87 in this Summary Suit, under Order-37, Code of Civil Procedure.
2. The plaintiff is a registered partnership firm, engaging itself in the business of advertising on behalf of its clients. The defendant, a limited company, had entered into a commercial transaction, under which, according to the plaintiff, various release orders were issued on 12.02.2005, 2.3.2005 & 7.6.2005, for advertisement and publicity of its products with a programme "BHAKTI ARADHANA" in the Doordarshan National Network. The plaintiff contends having ensured that the publicity and advertisement in the concerned channel was broadcast.
3. The plaintiff refers to 18 invoices issued from time to time on the defendant which are CS (OS) 1244/2008, I.A. Nos. 7676/2008, 10067/2008 & 8997/2009 Page 1 particularized in Paragraph-5 of the Suit, aggregating to Rs.58,23,859/-. It is contended that the defendant issued 57 cheques, 41 of which were for Rs.50,000/- (Rs. Fifty thousand) and the other 16, for Rs.1,00,000/- (Rs. One lakh) each aggregating to Rs.36,50,000/- (Rs. Thirty six lakhs fifty thousand). It is claimed that some of the cheques could be encashed and that in addition, the defendant had paid a sum of Rs.50,000/- (Rs. Fifty thousand) by pay order dated 3.3.3006. The rest of the cheques, according to the plaintiff, were dishonoured upon presentation. The amount received by the plaintiff mentioned in paragraph-11 of the Suit, works out to Rs. 18,00,000/- (Rs. Eighteen lakhs) as against the total receivable of Rs.58,23,859/-. It is thus contended that the plaintiff is entitled to principal amount of Rs.39,62,835/-, as outstanding dues. The plaintiff claims to have sent a legal notice dated 22.2.2008 to the defendant through registered post AD.
4. In support of the claim, the plaintiff has placed on record, copies of the invoices/release orders as well as copies of TDS certificates. Some of the original cheques issued by the defendant have also been disclosed. The defendant apparently had written on 24.03.2006 to the plaintiff stating that due to certain circumstances beyond its control, it was not possible for it to make suitable fund arrangements against the cheques issued. The plaintiff's statement of accounts has also been filed.
5. The defendant was served in this case pursuant to order dated 20.03.2009 and caused appearance on 15.7.2009. At the same time, the defendant filed an Application - I.A. No.8997/2009 under Section 148 CPC seeking enlargement of time to file an application for leave to defend. The summons for judgment had been issued previously by the Court on 20.03.2009. The Court did not accede to the request since the defendant was unrepresented on 20.07.2009. Thereafter a request for an adjournment was granted to on 7.10.2009. CS (OS) 1244/2008, I.A. Nos. 7676/2008, 10067/2008 & 8997/2009 Page 2
6. It is thus apparent that the defendant was served; it entered appearance, after which, the Court issued summons for judgment. Till date, it has chosen not to move the Court seeking leave to defend the proceedings. In the circumstances, Provisions of Order-37, Rule-3 (6) (a) come into operation. The said provisions read thus: -
"[3. Procedure for the appearance of defendant
(1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him.
XXX XXX XXX (6) At the hearing of such summons for judgment,-
(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or (b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security with the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or judge, the plaintiff shall be entitled to judgment forthwith."
7. In view of the above provision, since the defendant had not applied for leave to defend, the averments in the Suit and the summons for judgment have to be accepted.
8. For these reasons, the claim in the Suit has to succeed. The Suit is accordingly decreed for a sum of Rs.48,54,472.87 with pendente lite and future interest @ 15% per annum with cost. Counsel's fee is quantified @ Rs.50,000/-. All the pending applications are also disposed of. S. RAVINDRA BHAT
DECEMBER 14, 2009
CS (OS) 1244/2008, I.A. Nos. 7676/2008, 10067/2008 & 8997/2009 Page 3