M/S GARWARE NYLONS LIMITED Vs. SWASTIK YARNS

JUDGEMENT

(1.) M/s. Garware Nylons Limited - the Plaintiff has filed the suit for recovery of Rs. 12,26,043. 78 ps. against M/s. Swastik yarns-the Defendant as per the particulars of claims Exhibit-"z" annexed to the Plaint with future interest on principal sum of Rs. 10,70,898. 22 ps. at the rate of 21 per cent per annum till payment or realisation.

(2.) ACCORDING to the Plaintiff, the Defendant used to place telephonic orders to the Plaintiff at Bombay for supply of Nylons Filaments yarns and Polyester yarns, and subsequently, the orders placed by the Defendants were confirmed. The Plaintiff's case is that as per the various purchase orders placed by the Defendant to the Plaintiff, it sold, supplied and delivered Nylon Filaments yarns and Polyester yarns to the Defendant during the period from 30th June, 1992 till 19th June, 1993. The bills were raised by the Plaintiff against each delivery upon the Defendant, and the Defendant used to make part of amounts but never paid the complete amounts against each of the bills/invoices. On number of occasions, the Plaintiff approached the Defendant and requested to pay the outstanding amount, and, ultimately, a demand notice dated 20th June, 1995 was sent through its Advocate but no payment has been made. In paragraph 11 of the Plaint, it is averred by the Plaintiff that its registered office is at Bombay. The Defendant carries on business activities at Surat, State of Gujarat. The Defendant placed the purchase orders for supply of the materials upon the Plaintiff at Bombay. The goods and materials were delivered by the Defendant to the Plaintiff at Surat. The Defendant agreed to pay the price of the goods and materials to the Plaintiff at Bombay. The Defendant has already made part payment against the invoices at Bombay, and thus, the material cause of action has arisen in Bombay, and craves leave under Clause 12 of the Letters Patent. In a Petition filed by the Plaintiff, under Clause 12 of the Letters Patent for leave to sue the Defendant in this Court for the claim aforestated, the contents of paragraph 11 made in the Plaint are reiterated. The ex-parte leave was granted by this Court under Clause 12 of the Letters Patent, and by this Chamber Summons taken out by the Defendant, it is prayed that the ex-parte leave granted by this Court under Clause 12 of the Letters patent be revoked and/or cancelled.

(3.) FROM the entire invoices/bills placed on record by the Plaintiff along with the Plaint, it is clear that the orders were placed by the Defendants on telephone. There is no denial in the affidavit in reply to the categorical assertion made in the affidavit in support of the Chamber Summons that all orders were placed over telephone by the Defendant at Surat Office of the Plaintiff, and such orders were placed and/or negotiated by Mr. Shrirvas alias Shashikant and/or Mr. Dhirubhai on behalf of the Defendant, and by Mr. S. Z. Sukhdwala and/or Mr. Ghosh on behalf of the Plaintiff and that all orders/contracts for the purchase of different quantity of yarns were concluded over telephone in Surat. The learned counsel for the Plaintiff sought to urge that binding and concluded contract between the parties came into existence only on issuance of confirmation notes and the said confirmation notes were issued from Bombay. In support of his contention the learned counsel for the Plaintiff referred to the terms and conditions of the invoices. However, from the affidavit in reply filed by the Plaintiff, rather it appears that the offers/orders made by the offerer/defendant were accepted by the Plaintiff on telephone, and subsequently, the confirmation notes were issued. Once the offer was accepted on telephone at Surat, the issuance of confirmation note from Bombay, is not of much significance nor is the clause in the invoice that the concluded contract would come into existence on issuance of the confirmation note decisive. If the orders made by the defendants on telephone from Surat were not accepted on telephone and offerer was not communicated acceptance on phone, a categorical and specific plea ought to have been set out either in the Plaint or at least in the affidavit in reply that the offers were not accepted on telephone. I have already observed that the defendant has come out with a specific case that the orders were placed over telephone by the Defendant at the Surat Office of the Plaintiff and acceptance was communicated over telephone at Surat. It would be further seen that all goods were supplied by the Plaintiff from its Surat Depot to the Defendant and all invoices placed on record by the Plaintiff show that they have been issued from Surat. The Delivery Notes also show that they were dispatched from Udhana, which is out of jurisdiction of this Court, to the Defendant at Surat.