APOLLO TYRES LIMITED Vs. SURINDRA TYRES

JUDGEMENT

(1.) This order will govern the disposal of I.As. 1366/98, 1367/98, 1368/98 and 1369/98.

(2.) Suit order Order XXXVII CPC was Filed by Apollo Tyres Lid. alleging thai it is a company incorporated under the Companies Act, 1956 and Kapil Kumar, Assis- tant Manager (Legal) is authorised to sign and verify the plaint and institute suit on its behalf under a General Power of Attorney executed on 26/02/1991 pursuant to resolution of Board of Directors of company dated 19/02/1991. The plain- tiff is engaged in the manufacture and sale of automotive tyres, tubes and flaps. Defen- dant No. 1 is a partnership firm and is engaged in the sale and purchase of automotive tyres, tubes and flaps. Defendants 2 and 3 always represented themselves to be the partners of defendant No. 1 firm. It is further alleged that for the supplies made by plaintiff to defendant from 18/04/1994 to 12/08/1994 the plaintiff raised in- voices against which the defendant No. 1 firm issued cheques for a total sum of Rs. 14,74,574/-. The details of invoices raised alongwith dates and amounts thereof of the total amount of Rs. 14,74,574/- have been set out in Para NO. 6 of the plaint. Par- ticulars of the cheque issued by defendant No. 1 together with dated and amounts thereof have also been disclosed in that Para. It is alleged that the cheques issued by defendant No. 1 on presentation were dishonoured by its bankers. The plaintiff credited various credit notes of the total amount of Rs. 74,797/- in the account of defendant No. 1. After giving credit for that amount a sum of Rs. 13.99.777/- was due to the plaintiff company from defendants. Defendants are liable to pay interest on this amount @ 18% p.a. which comes to Rs. 4,59,127/- till the date of filing of suit. It was prayed that a decree for Rs. 18,58,904/- with interest pendente lite and future be passed in favour of the plaintiff company and against the defendants jointly and severally.

(3.) Aforesaid I.A. 1366/98 was filed by defendants 1 & 2 under Order XXXVII Rule 4 read with Section 151 CPC on 11/02/1998 alleging that defendant No. 2 entered appearance on his behalf and for defendant No. 1 by filing application dated 12/12/1996. Thereafter neither any summons for judgment on the address given in plaint was tendered or refused by defendants 1 & 2. On 5/02/1998 the defendant No. 2 came to know from defendant No. 3 in regard to decree having been passed against the defendants. Defendant No. 3 learnt about the passing of decree from the Manager, Oriental Bank of Commerce, Vishal Enclave, New Delhi who told him that Kapil Kumar, Assistant Manager (Legal) of plaintiff company had written a letter that decree had been passed on 12/01/1998 and his bank account seized. Immediately, thereafter defendant No. 2 engaged a counsel and on inspection of court file on 7/02/1998 by him, it had been revealed that on summons for judgment for 12/01/1998 report of refusal was given by the process server. It is claimed that this report was obtained by Kapil Kumar, Assistant Manager (Legal) in con- nivance with the process server. It is further stated that defendant No. 3 was dis- charged from his liabilities towards defendant No. 1 after its dissolution on 6/04/1994. It is pleaded that defendants 1 & 2 have to take a sum of approximately Rs. 18 lakhs from the plaintiff company which amount was deposited by defendant No. 1 firm . with it from time to time and on which the plaintiff company was paying interest. It is further alleged that cost of rejected tyres which were to be taken back by plaintiff company, is more than Rs. 3 lakhs and accounts between the parties have not been set- tled till date. It was prayed that judgment and decree dated 12/01/1998 may be set aside and defendants 1 & 2 allowed to contest the suit on merits.