HON’BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The subject suit has been filed by the plaintiff for recovery of ` 91,06,645/-. The amount claimed is for refund of the price paid of the machines which were sold by the defendant to the plaintiff. The machines were defective and resultantly no production could be undertaken on behalf of the plaintiff on such machines.
2. The subject suit for recovery has been filed by the plaintiff against the defendant who sold to the plaintiff two reconditioned machines namely Case Maker DA-36 Model 1979 and Aster Headcop 4+4 Sewing Machine 1987. The machines were to be used for the work of printing of various materials like books, posters, leaflets, etc. The defendant was paid a price/consideration of DEM 2,00,000.00 for these machines. When these machines were received at the works of the plaintiff, the employees of the defendant came to install and commission the same. The machines were only partly installed and not fully commissioned because the same started giving problems immediately. The plaintiff vide its communication dated 21.7.1999, informed the defendant about the problems which the plaintiff was facing with respect to the machines and which were as under:-
(a) The board cutting unit was not working properly i.e board cutting was cross and not even. The spine was not traveling freely in the path. Gutter was coming across while adjusting the spine path as per requirement and the figurehead was not lifting the spine and if it was made loose then gutter was coming across.
(b) Out of three compressors, one compressor was not working properly and was leaving the spine and board most of the time.
(c) Glue tank heater and thermostat were not working at all.”
The plaintiff is said to have addressed further communications dated 2.8.1999 and 3.8.1999, besides talking to the defendant, however, the defendant kept on giving some or the other explanations including of not getting visas, but really, the defendant was said to have defrauded the plaintiff by selling machines which failed to perform the purpose for which they were sold to the plaintiff. Ultimately, a legal notice dated 26.2.2001 was sent to the defendant, which having failed to yield the desired result, the subject suit came to be filed.
3. The defendant failed to appear and has been proceeded ex parte vide order dated 7.5.2010. Plaintiff has led evidence and filed affidavit of its witness Sh. K.K.Aggarwal PW-1.
4. The witness of the plaintiff Sh. K.K.Aggarwal (PW-1) has deposed with respect to entitlement to file the suit by the signatory and Board resolution is exhibited as Ex.PW1/2. The proforma invoice of DEM 2,00,000 has been exhibited as Ex.PW1/3. Copies of the invoices as also the warranty of six months contained in this regard have been exhibited as Ex.PW1/6 and Ex.PW1/7. Connected documents being the certificate of guarantee dated 12.4.1999 are exhibited as Ex.PW1/8 and Ex.PW1/9 respectively. The copies of communications which have been sent by the plaintiff to the defendant have been proved and exhibited as PW1/11 and Ex.PW1/12. Two other communications dated 2.8.1999 and 3.8.1999 have been proved and exhibited as Ex.PW1/14 and Ex.PW1/15. An earlier copy of communication containing the defects in the machines dated 21.7.1999 has been exhibited as Ex.PW1/13. Correspondence to the embassies and further correspondence entered into have been exhibited as Ex.PW1/16 (colly). Other related documents being the other letters and the legal notice have been exhibited as PW1/17 to Ex.PW1/22.
5. In view of the fact that the defendant has failed to appear and did not lead evidence and the witness of the plaintiff has not been cross examined, I am of the opinion that plaintiff has proved its case that the machines were defective and failed to meet the contractual purpose and the specification of the six months warranty.
6. Accordingly, suit of the plaintiff is decreed against the defendant for a sum of ` 91,06,645/- alongwith the pendente lite and future interest at 9% per annum simple till payment. Plaintiff will also be entitled to costs of the suit. Decree sheet be prepared.
VALMIKI J. MEHTA, J SEPTEMBER 24, 2012 ib