(August 1, 2001) 2001 (TLS)125554

2001-DLT-94-205 :: 2001-AD (Del)-6-936

REDINGTON INDIA LIMITED Vs. Modi Olivetti Limited

V. S. AGGARWAL

( 1 ) M/s Redington (India) Ltd. has filed the present suit for recover/ of Rs. 28,04,626. 50. The suit has been filed against M/s Modi Olivetti Ltd.

( 2 ) IT has been pleaded that the plaintiff was earlier known as Reding ton (India) Pvt. Ltd and after 23/04/1998 was re-named ass Reding ton (India) ltd. The plaintiff carries on the business of selling/marketing of computers and computer peripherals and allied products of various reputed companies. The defendant has been purchasing various goods/items from the plaintiff till March 1998. The defendant purchased goods being computer printers of epson make and DFX 8000 model, against orders dated 7. 5. 1996, 21. 5. 1996 and 8. 6. 1996. As per the payment terms, both the invoices were by means of negotiations of inland letters of credit. The defendant, sent copies of letter of credit in favour of the plaintiff.

( 3 ) AS desired by the defendant the goods were delivered at the defendant s branch at Secunderabad. The plaintiff was supposed to negotiate the aforesaid letter of credit within the stipulated time mentioned therein but due to oversight, and Inadvertence the letters of credit could not be encashed. As a consequence of which the plaintiff remained an unpaid seller. Despite request the payment is stated to have not been made and hence the present suit.

( 4 ) IN the written statement filed, the civil suit as such has been conbeted. It has been alleged that the civil suit is barred by time. The plaintiff is not an unpaid seller because as per Section 45 of the sales of Goods Act the whole price of the goods has been paid and tendered by means of two irrevocable letters of credit. The defendant cannot be blamed for the negligence, inaction and latchtes On thy part of the plaintiff.

( 5 ) IT has further been pleaded by the defendant that the value of the letters or credit was rs. 11,37,000/- and Rs. 12,45,000/- against order invoice value of Rs. 10,55,o15/- and Rs. 11,84,220/ the LOC was given in advance before the date of invoice or. despatch of goods as it was a pre-condition set up by the plaintiff and LOC were sent in advance with each order which was a separate transaction. The plaintiff himself did not negotiate the letters of credit because of, his oversight and inadvertence. Therefore, it is stated that it cannot blame the defendant.

( 6 ) AN application under Order 12 Rule 6 Code of civil, Procedure had been filed pleading that suit of the plaintiff be decreed in terms of the said provisions because it is re-asserted that the plaintiff company sold to the defendant goods being computer printers of Epson make and DFX 8000 model. The defendant had opened two letters of credit but by mistake did not present the documents against the LCs and thus did not receive the payment. The goods are admittedly received and since the defence is stated to be admitting the claims, the plaintiffs plea is that suit as such can well be decreed.

( 7 ) IN the reply filed, the petition has been contested. It is alleged that original documents have still not been filed. The plaintiff is not an unpaid seller and there is no ground to claim or assert that in terms of Order 12 Rule 6, the suit of the plaintiff is "liable to be. decreed.

( 8 ) ORDER 12 Rule 6 permits a Judgment to be pro pounced on admissions. It reads; 6. Judgment on admissions (1) where, admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having, regard to such admissions. (2) whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and