V K DESIGNERS ACTING Vs. MENSON ACCESSORIES

JUDGEMENT

(1.) This suit is for the recovery of Rs. 10,45,000.00 being the equivalent of U.S. $ 24,000. Initially, it had been filed against M/s. Menson Accessories and three other parties, but these parties were deleted by orders dated 29.3.1995. Thereafter, being unsuccessful in serving the defendant in the ordinary manner, M/s. Menson Accessories was served through publication in the Statesman (Overseas Edition) on 28.2.1998. No appearance has been entered on behalf of the Sole remaining defendant M/s. Menson Accessories. The provisions of Order XXXVII are explicit and postulate that on the failure of the defendant to enter 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 sums mentioned in the summons together with interests at the specified rate and to costs as determined by the Court.

(2.) A perusal of the plaint discloses that a contract for the supply of 1500 pieces of leather 'Back Packs' was entered into between the parties on 25th July, 1990. This consignment was despatched by the plaintiff to the defendant through Air France and is evidenced by its Airway Bill dated 13.8.1990. Freight of Rs. 45,358.00 was paid by the plaintiff. The contract between the parties postulated the payment of the freight by the defendant. The payment against this consignment has not been received by the plaintiff as is evident from the communications received by the plaintiff from the Bombay Merchandise Cooperative Bank Ltd. as well as the Bank of India. Even the issuance of a legal notice, received by the defendant on 18th June, 1991 failed to elicit any payment. The defendant had executed a Bill of Exchange on 5.9.1990 on receipt of the consignment.

(3.) A perusal of the plaint shows that the claim of the plaintiff is sustainable and maintainable under Order XXXVII. Since no appearance had been entered, the contents of the plaint were deemed to be correct. In these circumstances, the suit is decreed as prayed for. Decree sheet be drawn up.