SARASWATI TIN CONTAINERS PRIVATE LIMITED Vs. META CANS

JUDGEMENT

(1.) THE plaintiffs have filed this summary suit under the provisions of Order XXXVII, Rule 2 of the Civil Procedure Code claiming that the defendants be ordered and decreed jointly and severally to pay to the plaintiffs a sum of Rs. 9,48,000/- as per particulars of the plaintiffs claim together with further interest at the rate of 18 per cent per annum on the aggregate principal sum of Rs. 7,37,857/- from the date of filing of the suit till the judgement and thereafter at the same rate till payment or realisation.

(2.) THE plaintiff is a Company registered under the Companies Act, 1956 doing business of manufacturing tin plate, containers iron scraps etc. The defendants are carrying on business of tin and/or metal containers. Defendant No. 1 is a partnership firm registered under the Indian Partnership Act, 1932. Defendant Nos. 2 to 5 are the partners thereof. According to the plaintiffs, pursuant to the orders placed by the defendants from time to time the plaintiffs sold and delivered to the defendants goods from time to time. In particular pursuant to the order the plaintiffs sold and delivered goods to the defendants as follows. <FRM>JUDGEMENT_137_BCR1_1998Html1.htm</FRM> The defendants have received the goods mentioned in the aforesaid invoices as well as other invoices. It is further stated that on repeated demand the defendants issued cheque for Rs. 1 lakh bearing No. 935634 dated 8th June, 1992 drawn on Syndicate Bank towards part discharge of the aforesaid debts. The Cheque, however, was not honoured and was returned unpaid containing the reasons "referred to drawer". Consequently the plaintiffs were ultimately constrained to file criminal complaint in the Court of Additional Chief Metropolitan Magistrate, 11th Court at Kurla, Bombay under the provisions of section 138 of the Negotiable Instruments Act. It is accepted by the parties that the defendants have been convicted in the said complaint and punished. A decree came to be passed against the defendants on 12th September, 1995. The present Notice of Motion has been taken out under Order XXXVII, Rule 4 for setting aside the said decree. The present suit was filed on 27th September, 1993. Writ of Summons was served upon the defendants on 29th November, 1993. On 8th December, 1993, the defendants entered appearance through Mr. Bagwe, Advocate. Vakalatnama was filed by Mr. Bagwe on 8-12-1993. On 16th December, 1993 the plaintiffs took out Summons for judgment No. 770 of 1993. No application for leave to defend was taken out by the defendants. Therefore, Summons for judgment were made absolute and decree was passed on 12th September, 1995. On 5th October, 1995 the plaintiffs lodged with the decree department draft of the decree.

(3.) IN the affidavit in support of the Notice of Motion it is stated that the decree came to be passed on account of the lapse of the Advocate. It is stated that defendant is a lay person and he was always informed by the Advocate that the plaintiffs had not yet given inspection of the documents. Every time he enquired from the Advocate the same answer was given that he is awaiting inspection to be given by the plaintiffs. On the basis of the voluminous pleadings it is further submitted that the Advocate was justified in asking for inspection of the documents as the entire defence depended on the genuineness of the document on which the plaintiffs suit has been filed. It is further submitted that the suit itself was not maintainable as it is based on running accounts. There is a dispute as to whether or not the goods under the invoices have been received by the defendants. It is submitted that the challans which have been filed along with the plaint contain blanks and do not have any details which are necessarily required. Furthermore, goods have started from Silvassa to the State of Maharashtra. Lorry number given is of a lorry which belongs to the defendant. This lorry does not have a licence to travel outside Maharashtra. Apart from this, the maximum load permitted in the said lorry is not more than 11 tons whereas the weightage of the goods shown in the various invoices and challans is 14 tonnes. The goods are said to have been received by the defendants on the basis of a signature which is stated to have been that of one S. Sayed. This person is neither a partner in the business nor is he an employee of the defendants. Even the stamp evidencing receipt of the goods is totally dissimilar to the stamp which is used by the defendants. It is further submitted that no consignments can possibly come from Silvassa without the accompanying documents evidencing payment of octroi, consignment notes, weighment slips etc. Even the certified copies of the bills taken from the Court of the Magistrate did not tally with the original bill. On the basis of the above it is submitted that the decree ought to be set aside firstly on the ground that the leave to defend was not taken due to the lapse of the Advocate and secondly because the defendants have a very good case on merits.