MOHAN MURTI Vs. DEUTACHE RANCO

JUDGEMENT

(1.) THIS is a defendant's appeal against the judgment and decree in the summary suit, being Suit No. 1383/1989, for recovery of Rs. 1,51,50,000/ - plus interest of Rs. 58,75,620/ -. The appellant/defendant's application seeking leave to defend the suit was dismissed on 15.10.1993.

(2.) THE facts alleged in the plaint are that the respondent company (hereafter "the plaintiff") engages in the business of manufacturing and selling controls and devices for refrigeration and air conditioning equipment. The defendant carries on his business under the name of Nexim/Mohan Murti, at 47, Ring Road, Lajpat Nagar, New Delhi as well as at 110/111 Pragati Tower, Rajendra Place, New Delhi. He trades under the name "Nexim" even in Mumbai, in an office at Nariman Point, and owned -at the relevant time -a trading office under the same name at the World Trade Centre in Moscow, in the erstwhile USSR. At the time of institution of the suit, the defendant was working as a Director of Corporate Development of Escorts Ltd., New Delhi.

(3.) THE plaintiff shipped all the goods to the importer in accordance with the defendant's shipping instructions. The suit alleges that the importer paid into the defendant's bank account, the full invoice amount of Rs. 7,095,000 (Rs. 2,535,000 and Rs. 4,560,000 for orders dated 27.12.1985 and 11.4.1986 respectively). The defendant had initially agreed to pay the amount due to the plaintiff, in Deutsche Marks, but subsequently in US Dollars. Therefore, while the amount owed was 1,571,000 DM, the defendant had undertaken to pay US $1,000,000 to the plaintiff. The defendant had admitted his liability to pay the amount to the plaintiff in his letter dated 10.12.1987 (at page 36), stating that he would pay it in three monthly instalments, the first of which was due in January 1988, and the last of which was to be paid by 15.3.1988. Later, on 13.1.1988 the defendant adopted the position that the entire amount would be made good in a single instalment. On 15.2.1988, he sent a message to the plaintiff from Singapore requesting its representative to meet him at Frankfurt airport on 17.2.1988 to enable the defendant to pay them by way of a cheque. On that date, a cheque dated 31.3.1988 and drawn on the Indian Bank, Singapore, and payable only subject to availability of funds, was given to the plaintiff, with the accompanying assurance that there would be adequate funds available. When presented for clearance, it was returned as the drawer's seal was lacking. The plaintiff in any event, avers that it is entitled to sue the defendant as the cheque is a bill of exchange that was dishonoured by the drawee bank.