NARESH ARORA Vs. PARAS POLY FILMS PVT.LTD.

JUDGEMENT

(1.) The present suit has been filed by the Plaintiff seeking recovery of a sum of Rs. 22,40,000/- from the Defendant alongwith pendente lite and future interest at the rate of 18% per annum. Brief facts leading to the filing of the suit are as follows. The Plaintiff is the sole proprietor of M/s. Prakash Dye Chem and is engaged in the business of sale and purchase of various types of industrial chemicals. The Defendant, in March 1998, approached the Plaintiff for purchase of various chemicals and other raw materials, which were duly supplied to and utilized by the Defendant. The Defendant placed orders on the Plaintiff from time to time and the Plaintiff duly supplied the orders from time to time, and in respect of the supplies so made, the Plaintiff raised bills upon the Defendant. As the Defendant was making on-account payments towards the supplies made, the Plaintiff maintained an open and running current account in the usual course of business, entering therein all supplies made to and payments received from the Defendant. The Plaintiff claims that as on 12.08.2002, when last supply of chemicals was made by the Plaintiff to the Defendant, a sum of Rs. 15,01,750/- was due from the Defendant. Inspite of repeated requests from the Plaintiff, the Defendant failed and neglected to pay the said amount, though it is stated by the Plaintiff that the Defendant had issued certain cheques towards part payment of the amount due but the same had been dishonoured for want of funds, in respect of which the Plaintiff also initiated proceedings under section 138 of the Negotiable Instruments Act, 1881. By way of the present suit the Plaintiff seeks to recover the aforesaid sum of Rs. 15,01,750/- from the Defendant alongwith pre-suit interest at the rate of 18% per annum from 12.08.2002 till the date of filing of suit amounting to Rs. 7,38,250/-, in all the Plaintiff claims a sum of Rs. 22,40,000/- from the Defendant.

(2.) Summons of the suit were served on the Defendant by way of publication in "The Statesman" as well as in "Amar Ujala" both dated 28.07.2006, but the Defendant failed to appear despite service and was proceeded ex parte on 25.09.2006. At this juncture, it is also pertinent to point out that the Defendant, after three years of being proceeded ex parte, appeared before this Court through his counsel on 10.07.2009 and filed an application praying for setting aside of the order dated 25.09.2006, which was dismissed by this Court on the same day, i.e., on 10.07.2009. Thereafter, the Defendant filed an application for opportunity to cross-examine the Plaintiff, but no one appeared on behalf of the Defendant on the day the said application was posted and the same was dismissed as not maintainable on 21.08.2009. The Defendant then appeared on and off but did not choose to participate in the proceedings nor applied for setting aside of the order dated 21.08.2009.

(3.) Ex parte evidence was led by the Plaintiff by tendering his affidavit by way of evidence, which is marked as Exhibit PW1/A, and proving on record documents marked as Exhibits PW1/1 to PW1/12. The Plaintiff also examined PW2-Shri Dinesh Kumar Sharma, Superintendent, Central Excise, Kundali Division, Sonepat and PW3-Shri J.S. Atwal, Superintendent, Central Excise, Range 11, Karampura, New Delhi. The testimonies of these witnesses is unchallenged and unrebutted on record.