M/s Mahou India Private Limited vs M/s Aradhna Wines

Civil Suit No. 84 of 2016 Judgment Reserved on 7th March, 2019 Date of Decision 11th June, 2019 _________________________________________________________________

M/s Mahou India Private Limited ....Plaintif

Versus

M/s Aradhna Wines ....Defendant

Coram The Hon'ble Mr. Justice Vivek Singh Thakur, J.

Whether approved for reporting?1 Yes.

________________________________________________________________________

For the Plaintiff: Mr. Anand Sharma, Advocate.

For the Defendant: Ex-parte.

__________________________________________________________________ Vivek Singh Thakur, J.

The plaintiff, M/s Mahou India Private Limited, a

company formerly Arian Breweries and Distilleries Pvt. Limited,

incorporated under the Companies Act, 1956, engaged in the

business of manufacturing and sale of beer, has filed present suit

under Order 37 CPC against defendant M/s Aradhna Wines, the

1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 1 ::: Downloaded on - 13/06/2019 21:58:37 :::HCHP 2

sole proprietor concern engaged in business of selling beer from

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outlets situated at several locations in Himachal Pradesh, to

recover a sum of Rs.3,09,59,430/- along with pendente lite and

future interest at the rate of 18% per annum.

2 The suit has been filed through Director of plaintiff

company by placing on record certified true copy of resolution

passed in the meeting of Board of Directors of plaintiff company

held on 23.9.2016.

3 As per plaint, plaintiff company had been supplying

beer products after procuring the same from brewery at the

outlet of defendant situated in Himachal Pradesh in response to

permits for import of beer products duly procured by defendant

from the Excise Department of the State of Himachal Pradesh

and submitted to the plaintiff company.

4 Against the supply of beer products, defendant had

been making payments, either in full or in part, without referring

the invoices against which the payment was made and the

plaintiff company had been maintaining running account of

transactions with defendant for the supplies made to it and had

been crediting the payments received against the pending

invoices on the basis of first in-first out principle and crediting

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the first against the invoices raised earlier in time and thereafter

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adjusting the remaining amount towards the next invoice of the

next date. The defendant was making irregular payments of

lump sum amount which were being accepted by the plaintiff and

despite having outstanding amount against the defendant, the

plaintiff had been supplying the beer products to defendant as it

was a regular customer of plaintiff.

5 In the month of June, 2016, an amount of

Rs.3,09,59,430/- became outstanding towards defendant to be

paid to the plaintiff for supply of various items including

transportation charges etc. In response to various reminders of

plaintiff, through telephonic as well as in person conversations,

defendant had issued five cheques for Rs.50 lacs as part

payment of its total liability. However, cheques were dishonoured

for insufficient funds on several occasions, which resulted into

issuance of legal notice dated 22.4.2016 under Section 138 of

Negotiable Instrument Act, 1881 but defendant neither

responded to the same nor made any payment.

6 It is averred in plaint that despite acknowledging its

liability to pay the amount of Rs.3,09,59,430/-, defendant had

not shown willingness to pay the said amount which amounted to

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refusal to make the payment without any justifiable or lawful

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reason. Whereupon after issuing legal notice, plaintiff was

constrained to file the present suit for recovery.

7 Notice issued to defendant through Process Serving

Agency was received back with endorsement that defendant

concern was closed and there was lock on the gate of firm and

proprietor of the said concern Mr. Anil Dogra was residing

somewhere else. Dasti notices issued to defendant were also

received back with report that Mr. Anil Dogra, owner of the

defendant company, was not residing in his house since long and

his house as well as office had been sealed and his whereabouts

were not known. Notices issued through registered AD were not

received back. Therefore, plaintiff was permitted to serve

defendant by way of publication/advertisement in two

newspapers as well as by way of affixation and accordingly,

service by way of affixation was effected on 29.8.2017 and

publication in newspapers was made on 29.8.2017 in the Divya

Himachal and 31.8.2017 in The Tribune. Despite that, none

appeared for the defendant. However, one more notice was

issued to the defendant on the address mentioned in plaint as

well as another address of defendant procured by plaintiff.

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defendant on 4.10.2017 the date fixed for hearing. However, on

perusal of record, it transpired that service upon the defendant

was effected through affixation and publication, but copy of

plaint and annexures thereto were not sent for affixation as

required under Order 37 Rule 3(1) CPC. Therefore, defendant

was again served through affixation by pasting notice alongwith

plaint and its documents on both addresses of defendant for

7.12.2017. In aforesaid circumstances, the defendant was

proceeded ex-parte.

8 Plaintiff, along with plaint, had filed photocopies of

documents relied upon to substantiate its pleadings. Therefore,

the plaintiff was directed to produce original documents, which

were filed by plaintiff in Registry of this Court and are part of

record.

9 Present suit has been filed under Order 37 CPC. This

order applies to the following classes of suits:-

(a) suits upon bills of exchange, hundies and promissory notes;

::: Downloaded on - 13/06/2019 21:58:37 :::HCHP 6 (b) suits in which the plaintif seeks only to

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recover a debt or liquidated demand in money

payable by the defendant, with or without interest, arising-

(i) on a written contract; or

(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or

(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.

(iv) suit for recovery of receivable instituted

by any assignee of a receivable."

10 Present case has been filed for recovery of money

payable by the defendant arising on a written contract in the

shape of invoices read with import permits and Bill of Exchange,

i.e. cheques worth Rs. 50 lac.

11 In plaint, in compliance of provisions of Order 37 Rule

2 CPC, it has been specifically stated that suit has been filed

under Order 37 and the plaintiff has not claimed any relief which

does not fall within ambit of this Rule and in the cause title also,

it is specifically mentioned that suit is under Order XXXVII of CPC

and resultantly, summons of the suit were also issued as

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provided in form IV in Appendix B. Defendant has failed to put in

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appearance despite repeated efforts which were made for

procuring the presence of defendant by serving through various

modes but it has failed to put in appearance.

12 To substantiate the claim in plaint, plaintiff has

produced excise pass issued to the defendant for transporting

beer products since 8.8.2014 to 10.2.2015 issued in response to

order placed by the defendant by submitting photocopies of

import permits issued by Excise and Taxation Department

Government of H.P. during this period. Photocopies of import

permits along with bility and GRs issued for transportation have

also been placed on record with receipts. The details containing

invoice no., date, amount etc. which are related to the defendant

has also been placed on record. Original invoices books

containing carbon copy of invoices with respect to goods

supplied against the order placed by defendant at various times

have been placed on record. Plaintiff has also placed on record

original cheques issued by Mr. Anil Dogra, sole proprietor of the

defendant concern bearing Nos. 266439, 266440, 266441,

266442 and 266443 dated 31.12.2016 for Rs.10 lacs each.

Information given by bankers of plaintiff i.e. ICICI Bank with

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regard to dishonour of cheque for insufficient funds has also

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been placed on record in original. Copy of legal notice dated

22.4.2016 along with receipt of courier company has been placed

on record. Print of ledger record of running account of defendant

maintained by the plaintiff company showing the receipt and

outstanding amount has also been placed on record.

13 The said ledger account has been generated from

the computer of plaintiff and a certificate under Section 65B of

the Indian Evidence Act has also been placed on record stating

therein that ledger account of the defendant maintained by the

plaintiff is in electronic form on the computer system of plaintiff

and has been down loaded from computer system of plaintiff and

it is true and accurate record of copy maintained on the

computer system and copies of ledger account placed on record

are true hard copies of electronic record, which are identical to

the record maintained by the plaintiff.

14 Plaintiff has claimed recovery of Rs. 3,09,59,430/- in

total with further averment that for making part payment

thereof, defendant had also issued five cheques worth

Rs.10,00,000/- each, total amounting to Rs.50 lacs, which were

dishonoured by the Bank for insufficiency of funds. A summary

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suit based upon "Bill of Exchange" is maintainable under Order

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37 CPC as provided in its Rule 1(2). Cheque is a special kind of

"Bill of Exchange" as defined under Section 6 of the Negotiable

Instrument Act 1881 (NI Act). Therefore, summary suit for

recovery of cheque amount is maintainable under Order 37 CPC.

Accordingly, plaintiff's claim for Rs. 50 lacs against the cheques

is maintainable. However, the amount of these dishonoured

cheques i.e. Rs.50 lacs is a part of total outstanding amount of

Rs. 3,09,59,430/- sought to be recovered in the suit and

therefore, in case plaintiff is entitled for recovery of entire

amount, it would not be necessary to pass a separate decree for

recovery of Rs. 50 lacs, the amount contained in cheques, which

were issued by the defendant as part payment towards

outstanding amount.

15 Besides, resting its claim of Rs. 50 lacs on the basis

of cheques, plaintiff has also claimed his suit based on a written

contract with submission that import permits, supply of goods in

response thereto through respective invoices constitutes a

complete written contract between the parties, as invoices

contain the name of importer (purchaser), exporter(seller),

description of goods with quantity, along with its rates and price

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thereof along with tax applicable and levied thereon and also

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other terms and conditions.

16 Reliance has also been placed on judgments passed

by Delhi High Court in Dura Line India Pvt. Ltd. vs. Bpl

Broadband Network Pvt. Ltd 111(2004)DLT 736;

2004(74)DRJ 266and M/s Flint Group India Pvt. Ltd. vs.

M/s Good Morning India Media Pvt. Ltd in CM(M) No. 369

of 2017 and CM Nos. 13049-50/2017.

17 I am in agreement with the plea raised on behalf of

the plaintiff and also with the findings returned on relevant issue

in aforesaid judgments cited in support thereof.

18 Import permits placed on record, on Form L-34 issued

by the Excise and Taxation Department, Government of H.P.

contains the details of licence number, Firm's name, Licensee's

name and address of not only the importer (consignee) but also

of the exporter (consignor) along with complete description of

goods i.e. beer therein. The said import permits were submitted

by the defendant to the plaintiff for supply of goods and vide

corresponding invoices placed on record, the goods prescribed in

the export permits were supplied by plaintiff to the defendand

and invoice also contains the name of importer(consignee),

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exporter(consignor), description of goods with complete identity

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of seller, purchaser, quantity, rates and price of goods supplied.

Besides aforesaid details the invoices also contain the number of

truck and GRs along with date regarding the transportation of

goods so supplied to the defendant. Corresponding GRs have

also been placed on record substantiating the supply and

transportation of goods by plaintiff in response to order placed

by defendant through import permits. Import permits, invoices,

GRs and other documents placed on record contain the name of

plaintiff as exporter (consignor) and description of defendant as

importer(consignee). Export permit, issued by Excise and

Taxation Department, can be in favour of a licensee only as the

liquor is a controlled business which is permissible under

restrictions imposed under license to be issued/granted by the

Government and it is only the licensee who is entitled to apply

for issuance of import permit according to his licence and in the

present case, defendant is a licensee and import permits, placed

on record, have also been issued in its favour permitting to

import the beer. The said import permit when was placed before

the plaintiff for supplying/transporting the liquor/beer permitted

to be imported by defendant, is an offer made by the defendant

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which stands accepted by the plaintiff by supplying the goods as

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per requisition of defendant and the invoices issued in

furtherance of said offer are completing the written contract

between the parties. Contract is not necessary to be completed

in one document only, it can be completed in more than one

separate documents prepared in continuity establishing offer and

acceptance thereof wherein one may be offer and another may

be acceptance. In the present case, offer has not only been

accepted but the contract has also been acted upon between the

parties, as the goods were supplied as per demand of defendant

and by making part payments against thereof, defendant has

also acknowledged the completion of contract. The payments

made by defendant have been reflected in the ledger

account/running account of defendant maintained by the

plaintiff, copies whereof, establishing the payments made by

defendant and outstanding amount yet to be paid by the

defendant, are on record.

19 Even if invoices are to be considered as a counter

offer by plaintiff, even then the contract is complete as the said

offer stands accepted by the defendant by accepting the goods

supplied to him through these invoices and by making part

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payment against the said supply. Invoices may not have been

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signed by defendant, but the same have been signed by the

authorized signatory of plaintiff and it is not necessary for a valid

contract that it must be signed by both the parties. A contract

signed by one party is also a valid contact particularly when

there is ample evidence on record that same was accepted and

acted upon by the concerned party/parties. Outstanding amount

Rs. 3,09,59,430/- has been duly established from ledger account

of plaintiff. Therefore, plaintiff is entitled for recovery of Rs.

3,09,59,430/- as claimed.

20 Amount involved in present case pertains to business

transaction and definitely, by withholding the payment due to

plaintiff which may have been utilized by plaintiff in the business

of plaintiff for non-availability of funds to be poured in the

business activities so as to grow further. Therefore, the plaintiff is

also entitled for interest @ 12% per annum on the amount to be

recovered from the defendant.

21 In view of aforesaid discussion, suit of the plaintiff

succeeds and accordingly, a decree for recovery of Rs.

3,09,59,430/- along with interest at the rate of 12% per annum

from the date of liability wherefrom the said amount becomes

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due till the final realization of the entire amount is passed in

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favour of the plaintiff and against the defendant with costs.

Decree Sheet be drawn accordingly. Suit stands decreed

accordingly. All pending miscellaneous application(s), if any, shall

also stand disposed of.

June 11,2019 (Vivek Singh Thakur), ms Judge

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