Final Order 4

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SH. CHANDRA SHEKHAR, LD.
DISTRICT JUDGE (COMMERCIAL)-02, EAST,
KARKARDOOMA COURTS, DELHI
CS (COMM) No. 16/24 CNR No. DLET01-000109-2024
In the matter of:
M/S DURGA WATER SUPPLIER
(Through it’s Proprictor namely Dinesh Kumar)
having it’s registered office at:
F-11, N.H.-24 Service Road, Near Gurudwara,
East Vinod Nagar, Delhi – 110091
Mob. N0.:9990994181
email: durgawater82@gmail.com
……. Plaintiff
Vs.
M/S ZED GEOTECH PVT. LTD.
A Company Incorporated Under The Provisions Of The
Companies Act 2013 Having It’s Registered Office At:
Office No. A/3/12, Plot No. 14C,
Sector — 19, Vashi,
Navi Mumbai, Thane
Maharashtra -400703
ALSO AT:
393, Akshardham Apartments
Sector – 19, Pkt-3,
Dwarka, Delhi – 110075
... Defendant No. 1
Gurinder Singh
Director Of Defendant No. 1 Company
M/S Zed Geotech Pvt. Ltd.
J-702, Caitriona Apartment
Ambience Island, DLF Phase – 3,
Sector – 24, Gurugram,
Haryana – 122010
...Defendant No. 2
Sh. Damodaran Hari
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Director Of Defendant No. 1 Company
M/S Zed Geotech Pvt.Ltd.
...Defendant No.3
Sh. Naveel Sheikh
Director Of Defendant No. 1 Company
M/S Zed Geotech Pvt. Ltd.
...Defendant No.4
Both Available Served At:
M/S Howrah Chemicals & Solvent
393, Akshardham Apartments
Sector - 19, Pkt-3,
Dwarka, Delhi - 110075
Mob. No. 9821065636
EMAIL: info@zedgeotech.com
Date of institution : 10.01.2024
Date of reserving judgment : 25.04.2024
Date of passing judgment : 24.04.2024
JUDGMENT
1. The material facts, in brief are that the plaintiff
instituted the present suit u/O XXXVII of CPC, seeking recovery
of an amount of Rs. 31,60,533/- (rupees thirty one lakh sixty
thousand five hundred thirty three only) alongwith pendentelite
and future interest @ 18% p.a. against the defendants, stating that
the plaintiff is a sole-proprietorship firm, which is engaged in the
business of supplying water in larger volumes through tanker
facility at construction sites. The defendant no. 2 to 4, who are
Directors of defendant no. 1, in first week of May, 2020,
approached the plaintiff at his office at F-11, N.H.-24 Service
Road, Near Gurudwara, East Vinod Nagar, Delhi – 110091 for
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holding discussions for future business and on 16.05.2020, the
defendant no. 1 through e-mail placed a purchase order.
The plaintiff firm had supplied the ordered quantity
of water to the defendant no. 1 at its sites situated at Keshopur
and Mundka Casting Yard at Delhi for which several invoices
amounting to Rs. 23,04,660/- were raised against the defendant
no. 1. Out of the aforesaid mentioned amount, defendants made
payment of Rs. 3,67,600/- to the plaintiff in installments and on
repeated requests made by the plaintiff to clear the remaining
dues of Rs. 19,37,060/-, the defendants issued four post dated
cheques amounting to Rs. 3,70,152/- each drawn on ICICI Bank,
Universal Trade Tower Branch, Sector-49, Sohna Road, Gurgaon,
Haryana-122010 in favour of the plaintiff. The plaintiff presented
the cheques to his banker namely Indian Overseas Bank, Mayur
Vihar Phase-II Branch, Delhi but the same were returned to the
pliantiff with the reason ‘Funds Insufficient’ vide Bank Return
memo dated 18.07.2023. The plaintiff repeatedly asked the
defendants to pay the balance amount, but they failed to clear the
liability therefore, the plaintiff on 09.03.2022 sent a legal notice
to the defendants, but despite service, they did not reply to the
same. The plaintiff has instituted the present suit to pass a decree
of Rs. 31,60,533/- (rupees thirty one lakh sixty thousand five
hundred thirty three only) which includes interest @18% per
annum on the principal amount of Rs. 19,37,060/- in favour of
the plaintiff and against the defendants along with pendente lite
and future interest @ 18% p.a. from the date of institution of the
suit till actual realization of the same with cost of the suit.
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2. After hearing the plaintiff, summons for appearance
u/O XXXVII of CPC in the Form no. 4 in Appendix-B of CPC
were sent to the defendant no. 1. As per the report on summons,
service was effected to the defendant no. 1 through email on
27.02.2024 but the defendant no. 1 failed to file appearance and
its address.
Ld. Counsel for the plaintiff submitted that the
defendant no. 1 has not filed appearance and its address for
service, as required under Rule 3(1) of Order XXXVII of CPC
within stipulated time of ten days from the date of service,
therefore suit of the plaintiff may be decreed against the
defendants under Order XXXVII of CPC.
3. I have heard the submissions of Ld. Counsel for the
plaintiff, perused the judicial record, relevant provisions u/O 37
of CPC and case law titled as Shamli Distillery & Chemical
Works v. Vijai Shree Chemicals (India) Ltd. & Another, 2001
(60) DRJ 109 decided on 17.08.2001, by the Hon’ble High Court
of Delhi, wherein the Hon’ble High Court of Delhi in identical
facts, decreed the suit of the plaintiff u/O 37 of CPC with
pendente lite and future interest.
4. I have considered the submissions of Ld. Counsel
for the plaintiff.
(i) A perusal of record shows that as per facts stated in
the plaint, the suit of the plaintiff is within limitation and
jurisdiction of this Court. The plaintiff has also complied
provisions under section 12A of Commercial Courts Act, 2015
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and a Non-starter Report issued by DLSA, East, KKD, Delhi is
on judicial record.
(ii) A perusal of Order 37 of CPC shows that the Rule 3
of Sub-rule 2 of Order 37 CPC states that the defendant shall not
defend the suit referred to in sub-rule (1) unless he enters an
appearance and in default of entering his appearance, the
allegations in the plaint shall be deemed to be admitted and the
plaintiff shall be entitled to a decree for any sum, not exceeding
the sum mentioned in the summons, together with interest at the
rate specified, if any, up to the date of the decree and such sum
for cost as may be determined by the High Court from time to
time by rules made in that behalf and such decree may be
executed forthwith.
(iii) The Rule 3 (1) of Order 37 CPC states that in a suit
to which this Order applies, the plaintiff shall, together with
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.
(iv) Therefore, if the aforesaid provisions are applied in
the present case, it is apparent that defendant no. 1 has not filed
its appearance and address within stipulated time of ten days
from 27.02.2024 and hence, Sub-rule 3 of Rule 2 of Order 37
CPC is squarely applicable in the present case. Accordingly, the
averments made in the plaint are deemed to be admitted by the
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defendant no. 1 and the plaintiff is entitled to a decree for the
sum as, is mentioned in the summons served to the defendant no.
1 in Form no. 4 in appendix-B of CPC. The plaintiff is also
entitled to recover the aforesaid sum with interest from the date
of institution of the suit till actual realization of the same with
cost of the suit in view of aforecited case law of Shamli Distillery
& Chemical Works (supra) and case law of Sanjay Kohli (supra).
The suit of the plaintiff is decreed in favour of the plaintiff and
against the defendant no. 1 for a sum of Rs. 31,60,533/- (rupees
thirty one lakh sixty thousand five hundred thirty three only)
alongwith pendente lite @ 12% per annum and future interest @
8% per annum and cost of the suit. The suit is disposed off
accordingly. A decree sheet be drawn accordingly.
5. In view of Rule 1 of the Order XX of the Code of
Civil Procedure as applicable in Commercial Courts, copy of the
judgment be supplied to the Ld. Counsel of the parties at the
earliest on furnishing of email address or otherwise as per rules.
CHANDRA SHEKHAR
District Judge (Commercial Court)-02
East District/KKD Courts/Delhi/
25.04.2024
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