2019 (6) TMI 814 - HC - Indian Laws

Recovery of money payable - compliance of provisions of Order 37 Rule 2 CPC - HELD THAT - In the present case, offer has not only been accepted but the contract has also been acted upon between the parties, as the goods were supplied as per demand of defendant and by making part payments against thereof, defendant has also acknowledged the completion of contract. The payments made by defendant have been reflected in the ledger account/running account of defendant maintained by the plaintiff, copies whereof, establishing the payments made by defendant and outstanding amount yet to be paid by the defendant, are on record. Amount involved in present case pertains to business transaction and definitely, by withholding the payment due to plaintiff which may have been utilized by plaintiff in the business of plaintiff for non-availability of funds to be poured in the business activities so as to grow further. Therefore, the plaintiff is also entitled for interest @ 12% per annum on the amount to be recovered from the defendant. The suit of the plaintiff succeeds.

Summary

Issues Involved:

1. Recovery of outstanding amount.
2. Validity and enforcement of cheques issued.
3. Ex-parte proceedings against the defendant.
4. Establishment of written contract.
5. Entitlement to interest on the outstanding amount.

Issue-wise Detailed Analysis:

1. Recovery of Outstanding Amount:
The plaintiff, M/s Mahou India Private Limited, filed a suit under Order 37 CPC to recover ?3,09,59,430/- from the defendant, M/s Aradhna Wines. The plaintiff supplied beer products to the defendant, who made irregular payments without specifying the invoices being paid. The plaintiff maintained a running account, crediting payments on a first-in-first-out basis. By June 2016, the defendant owed ?3,09,59,430/- for various supplies, including transportation charges.

2. Validity and Enforcement of Cheques Issued:
The defendant issued five cheques totaling ?50 lacs as part payment, which were dishonored due to insufficient funds. The plaintiff issued a legal notice under Section 138 of the Negotiable Instruments Act, 1881, but received no response or payment. The court noted that a summary suit based on a "Bill of Exchange" (including cheques) is maintainable under Order 37 CPC. Thus, the plaintiff's claim for ?50 lacs against the cheques was deemed valid but was part of the total outstanding amount.

3. Ex-parte Proceedings Against the Defendant:
The defendant was served notices through various modes, including publication and affixation, but failed to appear. Consequently, the court proceeded ex-parte. The court ensured compliance with Order 37 Rule 3(1) CPC by serving notices along with the plaint and documents.

4. Establishment of Written Contract:
The plaintiff substantiated its claim with documents, including excise passes, import permits, invoices, GRs, and ledger records. The court agreed that the import permits and corresponding invoices constituted a complete written contract. The import permits, issued by the Excise and Taxation Department, detailed the licensee (defendant) and the supplier (plaintiff), creating a binding contract upon acceptance and supply of goods. The court emphasized that a contract need not be in a single document and can be established through a series of documents evidencing offer and acceptance.

5. Entitlement to Interest on the Outstanding Amount:
The court recognized that the withheld payment impacted the plaintiff's business operations. Therefore, the plaintiff was entitled to interest at 12% per annum on the outstanding amount from the date the liability arose until full realization.

Conclusion:
The court decreed in favor of the plaintiff, awarding ?3,09,59,430/- along with 12% per annum interest from the date of liability until full payment. The suit was decreed with costs, and all pending miscellaneous applications were disposed of.