GOCULDAS DOSSA AND COMPANY Vs. KIRTIKUMAR MULJI THAKKAR

JUDGEMENT

(1.) BY this Summons for Judgment, the Plaintiff seeks to recover a sum of Rs. 8,53,757/- with interest at the rate of 14% per annum. The suit is filed on the basis of Conducting Agreement dated 15th October, 2009. On 15th October, 2009 the Plaintiffs and Defendant have entered into a Conducting Agreement to run Plaintiffs' factory at Yavatmal during the period 1st November, 2009 to 31st May, 2010 on the terms and conditions mentioned in the said agreement. The Defendant agreed to execute a bank guarantee for Rs. 10 lacs of a nationalized bank in favour of the Plaintiffs as and by way of security. Clause (17) of the said Agreement provided that the Defendant was to pay by way of royalty of Rs. 6,50,500/- for a period of seven months from 15th November 2009 to 31st May, 2010. The said clause records that seven postdated cheques of various amounts were issued by the Defendant to the Plaintiffs totaling to Rs.6,50,500/-.

(2.) ACCORDING to the Plaintiffs, a cheque of Rs.10 lacs dated 1st November, 2009 given by the Defendant towards security deposit came to be dishonoured. It is the case of the Plaintiffs that since Defendant could not start the conducting Business of the Plaintiffs in time, the Defendant requested the Plaintiffs that the first payment of royalty of Rs.50,000/- due and payable to the Plaintiffs on 1st November, 2009 would be paid alongwith last installment due on 31st May, 2010. It is the case of the Plaintiffs that a cheque of Rs. 1 lac dated 31st December, 2009 was presented by the Plaintiffs and was returned by the bank with remark 'No Balance'. The Plaintiffs thereafter by letters dated 27th January, 2010, 15th February, 2010 and 29th March, 2010 called upon the Defendant to pay the said amount of Rs. 1 lac. It is the case of the Plaintiffs that though the Defendant received the said three letters, neither any reply was given by the Defendant nor demand was met with. The Plaintiffs thereafter issued notice of demand through its advocate on 17th June, 2010 alleging that various cheques including cheque of Rs.6,50,500/- was dishonoured. The Learned Counsel appearing for the Plaintiffs inform that the said notice dated 17th June, 2010 was returned by the courier with the remark 'Company Closed' on 31st March, 2010 and 1st April, 2010.

(3.) IT is common ground that Mr.Umesh Jugalkishor Shukla was not party to the Conducting Agreement. There is no material produced on record to show that Mr.Umesh Jugalkishor Shukla was authorised to make any commitment or to give any assurance on behalf of the Plaintiff. There is no dispute that Defendant had executed the Conducting Agreement. There is also no dispute that the Defendant has executed eight cheques in favour of the Plaintiff as recorded in the Conducting Agreement. The amount if any paid by the Defendant to Mr.Umesh Jugalkishor Shukla was not with consent of the Plaintiff. The Defendant has not applied for cancellation of the Conducting Agreement or for return of the cheques. No material has been produced on record by the Defendant that any steps are taken by the Defendant against Mr.Umesh Jugalkishor Shukla for making alleged false assurances on behalf of the Plaintiff. There is no substance in the submission that Mr.Umesh J.Shukla is necessary or proper party to the suit or that the suit is bad for non-joinder of Mr.Umesh J.Shukla.