DELHI METAL INDUSTRIES Vs. JITENDER JAIN

JUDGEMENT

(1.) This revision petition has been preferred by the petitioners/defendants as against the order dated 22nd December, 1997 passed by the Additional District Judge in Suit No. 275/1996 dismissing the application filed by the defendants 1, 2 and 4 prayi for leave to defend and consequently passing a decree in terms of the provisions of Order 37 Civil Procedure Code for an amount of Rs. 4,58,550.00 with pendente lite and future interest @ 18% p.a. from the date of filing ofthesuittill realisation.

(2.) The respondents filed the aforesaid suit under provisions of Order 37 Civil Procedure Code for recovery of a sum of Rs. 4,58,550.00 against four defendants. The first defendant was the partnership firm and the other three defendants were stated to be the partners thereof. It was stated in the plaint that defendant No. 2, who is the partner of defendant No. 1, had been purchasing various ferrous and non-ferrous metal from the plaintiff time and again on cash and credit basis, in respect of which various bills were raised by the plaintiff details of which have been given in paragraph No.3 of the plaint. In respect,of the aforesaid bills a total amount of Rs. 4,58,428.75p was due and payable, in respect of which the plaintiff gave an oral discount to the defendants for Rs. 428.75p. It is also stated that the defendants issued four cheques amounting to Rs. 4,58,000.00 against the aforesaid dues payable to the plaintiff which were issued as against the goods so purchased by the defendants from the plaintiff against the bills mentioned above being the consideration amount. The first cheque was for Rs. One lakh dates 10.8.94 and the second cheqe was also for an amount of Rs. One lakh dated 13.8.94, whereas the third cheque was dated 17.8.94 for Rs. 1,50,000.00 . The fourth cheque was dated 6.9.94 for Rs. 1,08,000.00 . The first three cheques when presented by the plaintiff to their bank for payment, the same were dishonoured by the bank with the endorsement "funds insufficient. On receipt of the aforesaid communication from the bank, the plaintiff contacted the defendants and apprised defendants 2 to 4 about the fact of dishonouring of the said cheques, upon which the defendants 2 to 4 requested the plaintiff to wait for some time. Still the fourth cheque dated 6.9.94 for Rs. 1,08,000.00 , which was presented for encashment was also dishonoured. Since the aforesaid cheques were dishonoured when presented and the defendants did not take any steps for payment of the dues, a demand notice was issued on 16.7.96 to the defendants. But in spite of service of said notice the defendants failed to make payment and, therefore, the said suit was instituted by the plaintiff under Order 37 Civil Procedure Code . It was also stated in the said plaint that the defendants had already issued ST-35 From against the aforesaid bills to the plaintiff as the aforesaid sales were made by the plaintiff as the defendants against ST-35 Form.

(3.) Defendants land 2 made appearance on 6.12.1996 as per the records whereas the other two defendants did not choose to put in appearance despite having been served. Later on, the court, however, ordered on the application of defendant No.3 that defendant No. 4 be also served and accordingly defendant No. 4 was again served with notice of the suit and she also put in appearance and also moved an application seeking for leave to defend and to contest the suit. Thereafter, the Additional District Judge proceeded to dispose of the application filed by the defendants 1,2, and 4 and by the impugend order he dismissed the said application and also passed a decree. The aforesaid judgment and decree is challenged before this Court by the petitioner.