V K DESIGNERS 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 had been entered on behalf of the Sole remaining Defendant M/s. Menson Accessories. The provisions of Ors. XXXVII are explicit and postulate that on the failure of the Defendant to enter appearance the allegations inthe 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 ofleather 'Back Packs' was entered into between the parties on 25/07/1990. Thisconsignment was despatched by the Plaintiff to the Defendant through Air Franceand is evidenced by its Airway Bill dated 13.8.1990. Freight of Rs. 45,358.00 was paidby the Plaintiff. The contract between the parties postulated the payment of the freightby the Defendant. The payment against this consignment has not been received bythe Plaintiff as it evident from the communications received by the Plaintiff from theBombay Merchandise Cooperative Bank Ltd., as well as the Bank of India. Even theissuance of a legal notice, received by the Defendant on 18/06/1991 failed toelicit any payment. The Defendant had executed a Bill of Exchange on 5.9.1990 onreceipt of the consignment.

(3.) A perusal of the Plaint shows that the claim of the Plaintiff is sustainable andmaintainable under Order XXXVII. Since no appearance had been entered thecontents of the Plaint were deemed to be correct.