GUJARAT INSECTICIDES LTD Vs. JAINSONS MINERALS

JUDGEMENT

(1.) This suit filed by the plaintiff is for recovery of Rs. 20,92,086/- along with interest @ 24% p.a. w.e.f. 1.1.1999. The plaintiff is a company incorporated under the Indian Companies Act and is carrying on the business of manufacture and supply of insecticides and pesticides and agro chemicals to its various customers. The plaintiff company also extends credit to its customers varying from 60 to 70 days, from the date of actual supply for making payments for the goods supplied. The defendant No. 1 is a partnership firm for which the defendant No. 2 is the managing partner, Other partners are not impleaded as it is stated by the plaintiff that the plaintiff is not aware of any other partners of the defendant No. 1 firm.

(2.) It is the case of the plaintiff that sometime during the year 1989, the defendants approached.the plaintiff for supply of certain pesticides since the plaintiff company is carrying on the business of manufacture and supply of insecticides, pesticides and agro-chemicals. Thereafter from the year 1989 onwards the plaintiff began to supply the pesticides as requisitioned by the defendants and as a result of which a sum of Rs. 11,55,704/- became due and payable on behalf of the defendants to the plaintiff and towards the part payment of the aforesaid outstanding amount, the defendants issued two j cheques of Rs. 5,08,728/- and Rs. 5,51,258/- dated 9.10.95 and 12.1.96; respectively. When the said cheques were presented for encashment, the \ same were dishonoured and returned unpaid to the plaintiff. The plaintiff | in these circumstances issued notice dated 12.1.1996 regarding dishonour I of cheques. Insofar as cheque dated 12.1.1996 is concerned, notice under j Section 138 of the Negotiable Instrument Act was given and as in spite thereof defendants failed to make the payment the plaintiff filed complaint under Section 138 of the N.I. Act which is pending trial before the Metropolitan Magistrate, Delhi. However, complaint regarding dishonour of second cheque dated 9.10.95 was not filed and the plea of the plaintiff in this behalf is that defendants had assured to make the payment which was not honoured but in the meantime limitation for filing the complaint had expired. The plaintiff thereafter amended the suit and impleaded Pioneer Organics (India) Ltd as defendant No. 3. Impleadment of defendant No. 3 is on the ground that the defendant No. 1 had been converted into a limited company in the name and style of defendant No. 3 which had taken over all the assets and liabilities of the defendant No. 1.

(3.) In the written statement filed on behalf of defendant No. 2 it is pleaded that the suit of the plaintiff is barred by limitation. Objection regarding territorial jurisdiction of this Court is also taken. On merits, the case set up is that that since the plaintiff used to insist upon handing over of post dated cheques immediately on dispatch of the materials, the partner of erstwhile defendant No. 1 concern had no other option but to provide blank cheques. Moreover, in the present case the said cheques (referred in the plaint) were apparently on the face of it misused for number of reasons. For example, all the cheques were presented when the Jainson Minerals was . not existing. Secondly amount filled up in the cheques do not tally with the respective invoices amount. Thirdly, in the demand notice dated 18/11/1998, the plaintiff has categorically stated that it has issued a cheque bearing No. 107094 dated 12/01/1996 for Rs. 5,51,258/- where as while filing the above mentioned suit the plaintiff has claimed and stated that it has issued two cheques bearing No. 107082 dated 9.1.95 and 107094 which shows that there are number of cheques which are lying in the custody of the plaintiff. Further, it later on calculated the interest which is mentioned as Rs. 5,08,728/- i.e., interest from 8th Sept,1995 to 11th January,1996 calculated @ 24% p.a. which was never agreed nor there was any contract to this effect. It is also averred that there is nothing due and payable by the defendants. However, without prejudice, even for the sake of argument if one takes into consideration the alleged statement of account filed by the plaintiff, it only shows that as on 6.7.1995, liability of the defendant No. 1 was shown as Rs. 60,367/-. Hence in any case the present suit is not maintainable.