Judgment Sheet
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No. 1577of 2010
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Date |
Order with signature of Judge |
Plaintiff : Artistic Denim Mills Limited,
through Mr. Monawwer Ghani, Advocate.
Defendant : Fatani Impex (Pvt.) Limited, called absent.
Date of hearing : 11.12.2012.
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J U D G M E N T
Nadeem Akhtar, J. – This Suit has been filed by the plaintiff against the defendant for recovery of Rs.6,651,427.00 with interest thereon at the rate of 15% per annum from the date of filing of the Suit till the receipt of the said amount.
2. The plaintiff is a public company limited by shares. It is the case of the plaintiff, as averred in the plaint, that the defendant, which is a private limited company, had business dealings with the plaintiff, and from time to time, it purchased fabric from the plaintiff worth millions of Rupees between July 2005 and June 2009. The defendant used to purchase fabric on credit, and used to settle its liabilities subsequently. At one stage, an amount of Rs.6,651,427.00 was payable by the defendant to the plaintiff. The defendant made part payments of Rs.473,445.00, Rs.507,849.00 and Rs.9,250.00 to the plaintiff on 14.09.2006, 23.11.2007 and 17.01.2009, respectively. Vide letters dated 25.05.2010 and 05.06.2010 addressed to the plaintiff, the defendant acknowledged its liability and promised to settle the same, but the said promise was not honoured. Accordingly, a legal notice dated 30.09.2010 was issued by the plaintiff calling upon the defendant to pay the then outstanding amount of Rs.6,651,427.00 within seven days from the date of the said notice. Despite the said notice, the defendant failed to settle its outstanding liability.
3. In the above background, this Suit was filed by the plaintiff against the defendant for recovery of the aforementioned amount. Summons was issued to the defendant on 15.10.2010 through the bailiff as well as through registered post and TCS. As per the bailiff’s report dated 08.12.2010, the summons was duly served upon the defendant as it was received on 08.12.2010 by its Assistant Manager. TCS also confirmed that the summons was delivered to the defendant on 22.10.2010. In spite of receiving the summons, the defendant neither appeared before this Court nor did it file its written statement. Accordingly, it was ordered on 14.05.2012 that the Suit shall proceed ex-parte against the defendant.
4. On 11.12.2012, the plaintiff examined its witness who was duly authorized by its Board of Directors. His examination-in-chief was recorded as Exhibit PW-1, wherein he reiterated the contents of the plaint and the claim made therein, and also produced as Exhibit PW-1/2 the original extract of the minutes of the meeting between the Board of Directors of the plaintiff held on 05.10.2010 ; the original print-out of the statement of account of the plaintiff for the period 01.07.2008 to 30.06.2009 showing the amount outstanding against the defendant as Exhibit PW-1/3 ; the original letters dated 25.05.2010 and 05.06.2010 as Exhibits PW-1/4 and PW-1/5, respectively, whereby the defendant admitted its liability and promised to settle the same ; a copy of the notice dated 30.09.2010 issued by the plaintiff’s counsel calling upon the defendant to pay the outstanding amount of Rs.6,651,427.00 to the plaintiff as X-1 ; and, the original reply dated 12.10.2010 received from the defendant’s counsel as Exhibit PW-1/6. It was stated by the plaintiff’s witness in his examination-in-chief that vide its letter dated 05.06.2010 (Exhibit PW-1/5), the defendant had promised to pay to the plaintiff a sum of Rs.1,000,000.00 per month, but it did not honour its commitment ; after filing of this Suit, no amount has been paid by the defendant to the plaintiff ; and, the plaintiff is entitled to a decree as prayed for in this Suit. The plaintiff’s witness was not cross-examined by the defendant.
5. Mr. Monawwer Ghani, the learned counsel for the plaintiff, submitted that the defendant, in its letters Exhibits PW-1/4 and 1/5, had not only categorically acknowledged its liability, but had also promised to settle the same. He submitted that the admission of liability coupled with the promise made by the defendant is sufficient for the plaintiff to prove its claim against the defendant. He pointed out that despite proper service, the defendant did not appear nor did it file its written statement in reply to the plaintiff’s claim. It was urged that the plaintiff is entitled to a decree as prayed for in this Suit, as the submissions made by it in its plaint as well as the evidence produced by it have remained un-rebutted.
6. I have heard the learned counsel for the plaintiff and have also carefully examined the material available on record. The record shows that the defendant was duly served by the bailiff as well as through TCS, but the defendant chose to remain absent and not to contest the plaintiff’s claim. Therefore, there is no doubt that the averments made in the plaint and the evidence produced by the plaintiff have remained unchallenged and un-rebutted. In its letter dated 25.05.2010 (Exhibit PW-1/4) addressed to the plaintiff, the defendant had categorically admitted that it had not been able to pay the outstanding amount to the plaintiff due to the decline in its business. In this letter, the defendant promised to resume the payment of outstanding dues from the second week of June 2010 through pay orders or Letters of Credit of Rs.500,000.00 per month till the full and final satisfaction of its entire liability. In its letter dated 05.06.2010 (Exhibit PW-1/5), the amount claimed by the plaintiff was disputed by the defendant, but the promise made in Exhibit PW-1/4 was reiterated and it was admitted that there were outstanding dues against the defendant. In Exhibit PW-1/6, which is the reply of the defendant’s counsel in response to the plaintiff’s legal notice, it was stated that the total outstanding amount due against the defendant is much less than the amount mentioned in the legal notice. Interestingly, no specific amount was mentioned in the said reply which was outstanding according to the defendant. However, the above also amounts to an admission of liability on the part of the defendant. An offer for amicable settlement was also mentioned in the said reply, which also reflects that there was some liability which was to be settled by the defendant.
7. In view of the above, and also as the averments made in the plaint and the evidence produced by the plaintiff have remained unchallenged and un-rebutted, the plaintiff has successfully discharged its burden and has succeeded in proving its claim. Accordingly, the plaintiff is entitled to a decree against the defendant for the amount claimed in this Suit.
8. Forgoing are the reasons of the short order announced by me on 11.12.2012, whereby this Suit was decreed with costs against the defendant in the sum of Rs.6,651,427.00 (Rupees six million six hundred fifty one thousand four hundred and twenty seven only) with profit thereon at the rate of 15% per annum with effect from May 2010, till the realization of the entire amount.
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J U D G E