GREAVES LIMITED Vs. SANDEEP DAWAR

JUDGEMENT

(1.) The plaintiff filed a suit for recovery of Rs.1,08,646.59 (Rupees one crore eight lakh ninety-eight thousand six hundred forty-six and fifty-nine paise) under the provisions of Order 37 of the Code of Civil Procedure. This suit was instituted on the averments that the plaintiff is a limited company duly incorporated under the Companies Act, 1956, having its registered office at 1, Dr. V.B. Gandhi Marg, Mumbai. It also has its registered office at New Delhi. The plaintiff-company deals in various machinery items, materials, etc. and enjoys a high reputation and enriched status in the business circles. Mr. Mahinder Kumar Jain, the Deputy Manager in the com- pany, who is stated to be conversant with the facts and circumstances of the case had been authorised by the Board of Directors vide resolution dated 29th January, 1999 to sign and verify the pleadings and file the present suit in this Court. He also holds the General Power of Attorney dated 3rd February, 1999 in this regard on behalf of the company. The defendant is the proprietor of M/s. Dawar Polymers, which is carrying on its business at 72, D.S.I.D.C., Okhla Industrial Complex, New Delhi. The plaintiff-company supplied materials and machinery from time-to-time to the defendant, and the defendant failed to make payment of Rs. 77,42,824/-. The plaintiff-company asked the defendant repeatedly to make these payments. The defendant agreed to make the payment of the aforesaid amount as per various cheques details of which have been given in paragraph 6 of the plaint. The same are as under:

(2.) The plaintiff-company after receiving the afore-stated 70 cheques presented the same to the Bank which were dishonoured on presentation and after receiving intimation in writing from the Bank, the plaintiff-company served a legal notice dated 22nd November, 1997 and 27th November, 1997 for payment of the said amount of Rs. 70,77,034.24. The cheques were issued as the defendant had already received the goods and as such the plaintiff filed complaint under Section 138 of the Negotiable Instruments Act, 1881 read with Section 420 of the Indian Penal Code. The defendant was summoned in those cases. The proceedings in the complaint case were stayed. The matter relating to and arising from the complaint filed by the plaintiff against the defendant are stated to be pending before the Supreme Court of India. According to the plaintiff, the amount of the cheques have not been paid to the plaintiff, despite the legal notice dated 29th June, 1999, as such the present suit for recovery of money against the defendant for a sum of Rs. 1,08,98,646.59, which includes the principal amount as afore-stated and Rs. 38,21,603.35 on account of interest.

(3.) From the above noticed facts as they emerge from the pleadings of the parties, it is clear that the parties were carrying on the business for a considerable time and admittedly the defendant had issued cheques in favour of the plaintiff. According to the plaintiff the cheques were issued by the defendant in discharge of their obligation to pay the consideration for the goods which had already been received by them. On the contrary, according the defendant the cheques were given in good faith and were not dated, even though issued in January '97 and have been used by the plaintiff for filing the present suit in a mala fide manner. The plea taken in the application for leave to defend is also that the claim of the plaintiff is barred by item as well as the plaintiff is not entitled to any interest as none was contemplated even under the alleged agreement dated 29th January, 1999 executed between the parties. The proceedings taken by the plaintiff against the defendant under Section 138 of the Negotiable Instruments Act read with Section 420 of the Indian Penal Code are stated to be pending in appeal before the Supreme Court. The plaintiff has entirely based his claim on the cheques which are stated to have been issued by the defendant and claiming interest thereupon for all the period.