THIRANI CHEMICALS LTD Vs. SHREE RAM PLAST

JUDGEMENT

(1.) BY way of the present appeal, the appellant assails an ex-parte judgment dated 4. 12. 1999 whereunder a suit instituted by the appellant (plaintiff in the court below) for recovery of a sum of Rs. 2,28,736/- against the respondents (defendants in the court below) was dismissed on the ground that the appellant/plaintiff had failed to lead any evidence in support of its case or to prove that the goods had been sold and supplied to the respondents/defendants.

(2.) IN a nutshell, the facts of the case are that the appellant/plaintiff was engaged in the business of manufacture and trading of various grades of Calcium carbonate. The respondent No 2. , partner of the respondent No. 1 firm approached the appellant/plaintiff for purchase of Calcium Carbonate, which as per the appellant/plaintiff, was duly supplied to them from time to time. It is the case of the appellant/plaintiff that an open, current, mutual and reciprocal account was maintained by the respondents/defendants with the appellant/plaintiff and that as per the books of account maintained by the latter as on 26. 4. 1995, a sum of Rs. 1,62,760/- was due and payable by the respondents to the appellant. It was averred in the plaint that despite repeated reminders, the respondents/defendants failed to clear the outstanding dues and further, a cheque dated 9. 9. 1993, for a sum of Rs. 30,000/- issued by the respondents/defendants in favour of the appellant/plaintiff when presented for realization, got dishonoured. On 26. 4. 1995, the appellant/plaintiff issued a legal notice to the respondents/defendants. It is the case of the appellant/plaintiff that pursuant thereto, the respondents/defendants agreed to pay a sum of Rs. 10,000/- per month to liquidate the outstanding dues and out of rs. 1,62,760/-, the appellant/plaintiff even received Rs. 45,000/- from the respondents/defendants thereafter from time to time. As the respondents failed to clear the entire outstanding dues, the appellant sent yet another legal notice dated 19. 11. 1998, calling the respondents/defendants to clear the balance outstanding amount of Rs. 1,25,960/ -. The respondents however failed to clear the outstanding amount. As a result, the appellant was compelled to institute the aforesaid suit on 24. 3. 1999, for recovery of the outstanding amount, along with interest claimed @ 21% p. a.

(3.) SUMMONS in the suit were issued by the Trial Court to the respondents/defendants, who did not appear despite service and were proceeded against ex-parte on 11. 5. 1999 and 29. 10. 1999. Thereafter, the case was posted for recording of the appellant/plaintiff's ex-parte evidence. The sole witness produced by the appellant/plaintiff was Mr. Anil Kumar Aggarwal, the authorized representative of the appellant/plaintiff (PW-1 ). The Trial Court examined the deposition of the aforesaid witness and the documents placed on the record and arrived at the conclusion that there was nothing placed on record by the appellant/plaintiff to show that the goods mentioned by it, were actually delivered to the respondents/defendants. Hence it was concluded that the sale and delivery of the goods to the respondents/defendants having not been proved on record and the statement of accounts of the appellant/plaintiff not being sufficient, the suit could not be decreed against the respondents/defendants. Aggrieved by the aforesaid judgment dated 04. 12. 1999, the appellant has preferred the present appeal. The appeal was admitted vide order dated 14. 3. 2000 and notices were issued to the respondents. As per the order 18. 7. 2000, though service was complete, none appeared for the respondents. Same is the position even today.