DELHI BOOK STORE Vs. K S SUBRAMANIAM

JUDGEMENT

(1.) IA No. 7418/2002 is an application filed by the defendant under Order 37 Rule 3, sub-rule 5 read with Section 151 of the Code of Civil Procedure (for short 'CPC') praying for grant of unconditional leave to defend the suit. The plaintiff is a registered partnership concern with its office at 5, Ansari Road, Darya Ganj, Delhi. The firm is engaged in the business of marketing and printing books. It also is an importer of printed books. Mr. Vijay Ahuja is one of the registered partners of the partnership concern and has signed and verified the plaint and instituted the present suit on behalf of the partnership firm.

(2.) The defendant had approached the plaintiff on 6th May, 1998 for purchase of printed books on credit-basis. After negotiations, the plaintiff agreed to supply the printed books to the defendant on credit-basis. An agreement dated 8th May, 1998 was executed between the parties. As per the agreement the defendant was to issue post-dated cheques in respect of various purchases, which were to be honoured on presentation. The purchase, issuance of cheques and the liability of the defendant had been stated by the plaintiff in paragraph 5 of the plaint, which reads as under:- "That the defendant purchased the printed books vide invoice no. 020248 dated 9-5-98 amounting Rs.5,00,000/- and also purchased books vide invoice no. 20269 dated 19-5-98 amounting Rs.18,24,000/-. The copies of invoices are filed herewith and marked as Annexure A-2 & 3. The defendant at the time of purchasing the printed books in respect of invoices bearing no. 020248 and no 20269 has issued the following post dated cheques <FRM>JUDGEMENT_937_ILRDLH14_2005Html1.htm</FRM> The defendant at the time of handing over the aforesaid cheques assured the plaintiff that all the above cheques drawn on State Bank of Travancore shall be honoured on presentation. The plaintiff firm has been maintaining a proper account in respect of purchase as made by the defendant. The payments made by the defendant were duly shown in the statement of account as maintained by the plaintiff firm. A true and correct statement of defendant as maintained by the plaintiff firm is filed herewith and may be read as part of the plaint. The same is marked as an Annexure A-4."

(3.) It is further pleaded case of the plaintiff that as per the accounts, a sum of Rs. 20,24,000/- was outstanding against the defendant which amount, the defendant failed to liquidate despite repeated requests. As per the terms and conditions for the supply of material, the defendant was also liable to pay interest @ 18% per annum on the overdue amount. The prevalent market rate of interest as also the amount paid by the defendant within the credit period is also 18% p.a. On this ground the plaintiff is stated to be entitled to receive a sum of Rs.3,64,320/- on account of interest. On this premise, the plaintiff has filed the suit for recovery of Rs.23,88,320/-. The defendant vide their letter dated 25th June, 1998 agreed to make the payment within a week, but despite that assurance, no payment was received and the plaintiff again requested the defendant vide their letter dated 6th November, 1998 to clear the cheques which were due. This was replied by the defendants vide their letter dated 13th November, 1998, requesting therein not to present the cheques, as the cheques received from the defendant from its parties were received back dishonoured. Vide letter dated 4th December, 1998 and 22nd December, 1998 the plaintiff had requested the defendants to clear the dues. The only reply that was received from the end of the defendant was in the letter dated 23rd December, 1998, stating that the cheques issued by various parties to the defendant were dishonoured and as such the defendant was unable to make the payment. The letters exchanged between the plaintiff and the defendant have been placed on record. The plaintiff on receipt of the dishonoured cheques i.e. cheque no. 014238 dt. 3-3-98, 014240 dt. 30-4-99, 014241 dt. 30-5-99 & 014242 dt. 30-6-99 had even sent a legal notice to the defendant on 4th October, 1999 through their counsel which was duly received by the defendant. It is stated that inadvertently a sum of Rs.17,24,000/- was mentioned in the notice, which was corrected by a supplement notice dated 18th September, 1999. A reply was received from the defendant dated 18th September, 1999 stating that he had only purchased books worth Rs.5 lacs out of which Rs.3 lacs had already been paid, and it was specifically denied by the defendant that the sum of Rs.20,24,000/- was still outstanding and due to the plaintiff from the defendant. In these circumstances, the plaintiff has filed the present suit under the provisions of Order 37 of the Code of Civil Procedure based on a written contract and the dishonoured cheques, stating that no relief claimed in the suit is beyond the scope of the said provisions.