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Judgment
J.R. Midha, J.
CS(OS) 1724/2009 and I.A. No. 10371/2010
The plaintiff has filed this application under Order XII Rule 6 of the CPC for passing of decree on the basis of the admissions of the defendants. No reply has been filed to the application despite the number of opportunities granted. Vide order dated 10th January, 2011, last opportunity was granted to the defendants to file the reply within two weeks subject to cost of 20,000/-. However, the defendants neither filed the reply nor paid the cost whereupon the defendants right to file the reply was closed on 11th March, 2011.
The relevant facts in brief are as under:-
2.1 The plaintiff is a company based in Netherlands and is engaged in business of trading.
2.2 In January, 2009, the defendants agreed to sell 115 MT of rice to the plaintiff for a total consideration of US$ 97,750/- @ US$ 850 per MT.
2.3 The plaintiff accordingly placed the purchase order No. 44315- 0250 dated 6th February, 2009 upon the defendants and remitted the entire consideration in advance to the defendants by transferring the funds to defendant No. 1''s account No. 2000193003679 with Bank of Rajasthan. The plaintiff has filed the statement of account along with the plaint to prove the transfer of funds. As per the purchase order, the ordered rice was to be delivered by 10th February, 2009.
2.4 Vide e-mail dated 10th February, 2009, the defendant admitted the receipt of the aforesaid payment.
2.5 Despite the remittance of the total consideration in advance, the defendants failed to supply the rice to the plaintiff whereupon the plaintiff issued reminders dated 27th January, 2009, 25th February, 2009 and 4th March, 2009.
2.6 Vide e-mail dated 7th April, 2009, the defendant refused to send the shipment on the ground of increase in prices. In the alternative, the defendant offered to deduct the cost of the empty bags and to refund the balance payment.
2.7 Vide e-mail dated 8th April, 2009, the defendant again agreed to ship the rice in terms of the agreement but despite the same, no shipment was made whereupon the plaintiff issued reminders dated 9th April, 2009, 18th April, 2009, 20th April, 2009, 7th May, 2009, 9th May, 2009, 11th May, 2009, 13th May, 2009 and 14th May, 2009.
2.8 Vide e-mail dated 24th March, 2009, the plaintiff called upon the defendant to refund the payment in reply to which the defendant vide e-mail dated 24th May, 2009 agreed to refund the payment received.
2.9 Vide e-mail dated 19th June, 2009, the plaintiff again demanded refund of the payment from the defendants.
2.10 The plaintiff instituted this suit for recovery of US$ 1,07,536/- (52,69,264/-) on 27th August, 2009.
The learned counsel for the plaintiff submits that the defendants have made the following admissions which entitle the plaintiff to obtain the decree under Order XII Rule 6 of the Code of Civil Procedure:-
3.1 The plaintiff has admitted the entire correspondence exchanged between the parties as matter of record in the written statement.
3.2 Vide e-mail dated 25th September, 2009 of defendant No. 1 to the plaintiff, the defendants have refunded the part payment of US$ 20,000/- to the plaintiff.
3.3 In reply to the plaintiffs e-mail dated 26th September, 2009, defendant No. 1 admitted the payment of US$ 20,000/- to be a meager amount but mentioned their intention not to keep the plaintiffs money.
3.4 Vide e-mail dated 30th September, 2009, defendant No. 2 expressed his apology for delay in shipment.
3.5 Vide e-mail dated 26th September, 2009, defendants admitted the receipt of full payment of the consignment of 115 MT of rice.
Learned counsel for the plaintiff submits that the defendants have admitted the receipt of the entire sale consideration of US$ 97,750/-. The defendants have further admitted the non-delivery of the shipment to the plaintiff. The defendants have further apologized for the non delivery and have refunded part payment of US$ 20,000/- but have not made the balance payment.
The admissions by the defendants are sufficient to pass a decree in favour of the plaintiff under Order XII Rule 6 of the Code of Civil Procedure. The plaintiff is thus entitled to US$ 77,750/- (US$ 97,750 less US$ 20,000). Learned counsel for the plaintiff submits that the conversion rate of US dollar was Rs. 49/- per US dollar on the date of filing of the suit and accordingly the plaintiff is entitled to principal amount of Rs. 38,09,750/- (US$ 77,750 x 49). The plaintiff is claiming interest @18% per annum for the pre-suit period as well as pendente lite and future interest.
In the facts and circumstances of this case, the plaintiffs application under Order XII Rule 6 of the CPC is allowed and the suit is decreed in favour of the plaintiff and against the defendants on the following terms:-
6.1 The suit is decreed for Rs. 38,09,750/- in favour of the plaintiff and against the defendants.
6.2 The plaintiff shall be entitled to interest @9% per annum on the total principal amount of Rs. 47,89,750/- from the date of transfer of funds, i.e., 6th February, 2009 up to 25th September, 2009 when the defendants made part payment of US$ 20000 to the plaintiff. The plaintiff shall be entitled to pendente lite and future interest @9% per annum on the balance amount of Rs. 38,09,750/- from 25th September, 2009 till realization.
6.3 The plaintiff is also awarded costs of the suit including the Court fees paid as well as the counsel''s fees.
All pending applications are disposed of.