PRIYANKA ENTERPRISES Vs. TIRUPATI FOOD PROCESSING

JUDGEMENT

(1.) Plaintiff filed present suit for recovery of Rs. 71,88,356/ - (Rupees seventy one lacs eighty eight thousand three hundred fifty six only) by way of damages with interest at the rate of 8% per annum from the date of institution of suit till realization.

(2.) BRIEF facts of the case: - It is pleaded that plaintiff is proprietor of M/s Priyanka Enterprises Phase -II Industrial area Gagret District Una H.P. and is competent to file the present civil suit. It is pleaded that plaintiff purchased a plot measuring about 1000 sq. metres at G.M. District Industries Centre Una having Plot No. 10, Phase -II Industrial Area Gagret District Una H.P. for the purpose of establishing the business by constructing a factory for the manufacturing of Expended Extruded Snacks Food Kurkure and Potato Wafer etc. and also sought permission for establishment of factory by the competent authority i.e. District Industries Centre Una H.P. It is pleaded that plaintiff prepared complete project summary and took loan from the Nationalized Bank and defendant approached the plaintiff for supply of machinery required for the manufacture of Expended Extruded Snacks Food Kurkure and Potato Wafer etc. and further for supply of machinery for processing of food items. It is further pleaded that defendant had given the quotation to the plaintiff for the supply of machinery and total estimate to the tune of Rs. 57 lacs (Rupees fifty seven lacs only) was given by defendant to the plaintiff. It is further pleaded that defendant also undertook to install machinery for the said project. It is also pleaded that plaintiff made all arrangements to facilitate the defendant for establishing the machinery required for the said project and further got loan sanctioned from the Nationalized Bank. It is pleaded that after the receipt of payment of Rs. 61,50,000/ - i.e. Rs. 47,05,000/ - vide demand draft No. 907811 on dated 29.3.2012 and sum of Rs. 14,45,000/ - by cash the defendant was under legal obligation to supply the machinery at the earliest to the plaintiff as the plaintiff was willing to start the manufacturing of Expended Extruded Snacks Food Kurkure and Potato Wafer etc.. It is pleaded that defendant deliberately after receipt of payment delayed the machinery for the project and in place of supplying the new machinery defendant supplied old and rusted machinery, the details of which is as under: - <FRM>JUDGEMENT_10_LAWS(HPH)7_2015.htm</FRM> It is pleaded that defendant failed to supply the complete machinery to the plaintiff with malafide intention and also failed to supply the following items such as Reel Machine, Wibro Purifier, Finisher Machine, Ekoter Machine Mixer Masala and Pneumatic Packing Machine to the plaintiff. It is further pleaded that plaintiff was in state of shock and after receiving the old rusted and incomplete machinery supplied by the defendant the plaintiff immediately informed the defendant about the same. It is pleaded that when this fact of supply of old rusted and incomplete machinery was brought to the notice of defendant thereafter defendant promised to replace the said machinery with immediate effect but in spite of repeated requests defendant had failed to replace the old machinery and hence the plaintiff after making huge investment in the project could not start the said project. It is pleaded that plaintiff placed the order for supply of requisite machinery for manufacturing of Expended Extruded Snacks Food Kurkure and Potato Wafer etc. and plaintiff was under belief that defendant would provide best quality of machinery. It is pleaded that due to supply of old incomplete machinery by defendant the plaintiff has suffered huge funds and loss. It is pleaded that plaintiff is suffering the losses of Rs. 1 crore (Rupees one crore only) on account of deficiency in service to the plaintiff by the defendant. It is further pleaded that plaintiff and defendant entered into a written agreement dated 28.10.2012 whereby defendant agreed for eplacement of old machinery. It is pleaded that defendant agreed to refund a sum of Rs. 17,65,000/ - (Rupees seventeen lacs sixty five thousand only). It is pleaded that defendant also issued post dated cheque amounting to Rs. 17,65,000/ - (Rupees seventeen lacs sixty five thousand only) out of which amount of Rs. 10 lacs (Rupees ten lacs only) stood cleared. It is pleaded that defendant did not comply the promise of agreement dated 28.10.2012 and failed to replace the old machinery. It is pleaded that one post dated cheque to the tune of Rs. 2,50,000/ - (Rupees two lacs fifty thousand only) was also dishonoured and separate proceedings under Section 138 of Negotiable Instrument Act are pending before competent Court of law. It is pleaded that despite repeated requests the defendant did not replace the old machinery and plaintiff was forced to purchase new machinery from other authorized dealer. It is pleaded that plaintiff suffered great financial loss due to illegal act and conduct of defendant. It is also pleaded that plaintiff also served a legal notice upon the defendant dated 12.2.2013 and further pleaded that plaintiff also filed FIR against the defendant. It is pleaded that plaintiff by act and conduct of defendant suffered following damages: - <FRM>JUDGEMENT_10_LAWS(HPH)7_20153.htm</FRM> Prayer for decree the suit as mentioned in relief clause of plaint sought.

(3.) DEFENDANT did not appear despite service and defendant was proceeded ex -parte on dated 5.3.2014.