MAHAVIR ALUMINIUM LIMITED Vs. SPRINKLER INDIA COMPANY

JUDGEMENT

(1.) Plaintiff is a company engaged in the manufacture of sale of sprinkler, irrigation sets and portable pipeline systems with their factory in the industrial area Bhiwadi, District Alwar, Rajasthan and this suit has claimed a decree for Rs. 5,61,185.56 against the defendants. As per the averments made in the plaint, defendant No. I was appointed as a dealer in the State of Maharashtra under an agreement dated 5.11.1986. Terms of agreement with commission payable are incorporated in para 5 of the plaint. It is the plaintiff's case that after appointment of the defendant as a dealer, he had been placing orders on the plaintiff in regard to the supply of sprinkler, irrigation sets and portable pipeline system and maintained with the plaintiff an open and current account in the regular course of business. The plaintiff supplied material from time to time to the defendant as per terms of the agreement. Certain disputes were raised by the defendant as regards supplies made and credit memos. It was decided amongst parties to settle those differences in a meeting which was held at Delhi in the registered office of the plaintiff and in pursuance to the meeting held on 15th, 16th and 17th November at Delhi in which defendant No. I was represented by defendant No. 2 and the plaintiff was represented by Shri N.K. Jain, Chief Executive and Shri R.K. Seth, the Sales Manager.Defendants after going through the entire accounts and other connected matters confirmed that an amount of Rs. 6,03,632.02 was outstanding against defendants which defendants were liable to pay to the plaintiff. It was further agreed and confirmed by the defendants at Delhi that certain materials supplied by the plaintiff to the defendant of the value of Rs. 3,19,668.18 was lying in stock with the defendants in their godown in the State of Maharashtra for which same a bill was prepared which was signed by defendant No. 2 on behalf of defendant No. I. It was agreed that in case the material which was 445 alleged to be lying with the defendants was returned before 31.12.1988 credit memo would be issued to the defendants by the plaintiff otherwise the entire amount of the bill was payable by the defendants to the plaintiff together with other outstanding amount of6lacs and odd. Thus, according to the plaintiff, defendant in Delhi acknowledged and accepted the liability to the tune of Rs. 9,23,300.20. After this settlement the defendants' account was credited by Rs. 3 lacs on account of the amount received under bank guarantee and for Rs. 43,082.20 on account of credit notes issued in favour of the defendants for the value of material returned by the defendants to the plaintiff thereby leaving balance of Rs. 5,80,217.90. Another credit note for Rs. 92,195.57 was issued in favour of the defendants by the plaintiff and thus on the date of suit a sum of Rs. 4,88,022.33 was due and payable for which a notice was also got sent to the defendants. The plaintiff has also claimed that since the transaction between the parties was commercial one, the defendants are liable to pay interest at the rate of 18% p.a. which upto 15.10.1989 works out to Rs. 73,163.23. Adding this amount to the principal, the plaintiff has claimed a decree for Rs. 5,61,185.56.

(2.) Defendants were duly served with summons and copy of plaint on 16.10.1990 for 13.11.1990. Nobody put in appearance on their behalf. They were accordingly proceeded against ex parte on 13.2.1992 and the plaintiff was called upon to lead its ex parte evidence on affidavits.

(3.) Shri M.M. Gupta, Company Secretary and Principal Officer of the plaintiff company in his affidavit stated that a fire broke out between the intervening night of 17th and 18th April, 1992 on 16th and 17th floor of Nirmal Tower, 26 Barakhamba Road, New Delhi wherein the registered and head office of the plaintiff-company was located. All statutory books, bills, and account books of the plaintiff were burnt except few ledgers or account books which were on the 9th fl(x)r. A report of the fire was lodged with the Police Station on 8.10.1992. Copy of the report has been proved on record as Ext. P-3 and copy of fire report issued by Fire Officer, Delhi Admn. has been proved as Ext. P-3A. Accordingly original file containing original agreement dated 6.11.1986 appointing the defendant as a dealer in the State of Maharashtra as well as original settlement arrived at in a meeting held on 15th, 16th and 17th November, 1988 are stated to have been destroyed except of a carbon copy of the minutes of the meeting held on 15th, 16th and 17th November, 1988 which it is stated was given to the Advocate at the time of the filing of the suit, which has been placed on record. A ledger containing the account of the defendants was also traced out as protected one.