BHARAT HARILAL JHAVERI Vs. NEW ERA FABRICS LTD

JUDGEMENT

(1.) The Plaintiff has filed this suit against the Defendants for recovery of Rs.82,98,646/ together with further interest on the principal amount of Rs.47,02,771/ @ 18% p.a. from the date of filing of the suit till payment. In paragraph 18 of the plaint, the Plaintiff has averred that the suit has been filed on basis of the written contract, evidenced by purchase orders, invoices and the statements of account contending that it amounted to implied promise to pay and the part payments made from time to time.

(2.) It is the case of the Plaintiff that pursuant to the orders placed by the Defendants from time to time to the Plaintiff for purchase of Viscoprint, the Plaintiff had supplied material to the Defendants from time to time upto 28 th March 2006. It is the case of the Plaintiff that various payments were made by the Defendants to the Plaintiff which are duly reflected in the statements of accounts which are annexed at Exhibit C to E to the plaint. According to the Plaintiff, the Ledger Account of the Defendants in the books of the Plaintiff for the period 1 st April 2004 to 9 th August 2004 at Exhibit C and for the period 1 st April 2005 to 26 th December 2005 at Exhibit D are the acknowledgments of liabilities on the part of the Defendants. It is the case of the Plaintiff that by a letter dated 10 th May 2006, the Plaintiff forwarded statements of accounts for the period 1 st April 2005 to 31 st March 2006 to the Defendants for verification and approval. However, the same is not returned duly approved by the Defendants. The Plaintiff thereafter called upon the Defendants to pay the sum of Rs.51,52,757/ by letter dated 6 th September 2006 and requested to release at least Rs.5,00,000/ every month. It is the case of the Plaintiff that the Defendants issued a cheque of Rs.5,00,000/ on 14 th November 2006 however without any covering letter. The Plaintiff has deposited the said cheque of Rs.5,00,000/ and the same is honoured.

(3.) The Plaintiff thereafter issued notice under Section 433, 434, 439 of the Companies Act, 1956 to the Defendants on 11 th October 2007. The Defendants by their letter dated 22 nd October 2007 denied the said demand. The Plaintiff by his letter dated 16 th November 2007 reiterated his claim. The Defendants once again denied the claim by reply dated 23 rd November 2007.