The central legal point established in the judgment is the maintainability of a suit on the basis of a written acknowledgment of a pre-existing debt as a written contract under Order XXXVII CPC and Section 138 of the Negotiable Instruments Act.

1. The plaintiff has instituted the present suit under Order XXXVII CPC against the defendants for recovery of a sum of Rs. 2,31,45,314/- alongwith the pendente lite and future interest.

2. Summons in the prescribed proforma were issued to the defendants on 29.02.2012, returnable on 07.08.2012. The defendants had entered appearance on 09.07.2012 and filed a memo of appearance through counsel. Thereafter, the plaintiff had moved an application for issuance of summons for judgment to the defendants on which notice was issued on 21.05.2012 and the leave to defend application was moved by the defendants (I.A. 14231/2012) within the stipulated time. A reply in opposition to the said application was also filed by the plaintiff, followed by a supplementary reply filed on 13.12.2014.

3. The records reveal that the defendants were represented through counsel till 17.07.2014, but thereafter, their counsel had stopped appearing. As a result, vide order dated 01.05.2015, the leave to defend application filed by the defendants was dismissed for non-prosecution and the case was adjourned to 27.08.2015. In all this duration, no steps have been taken by the defendants to approach the Court for setting aside the order dated 01.05.2015, nor has any counsel appeared for the defendants today. The case was passed over on the first call to await the defendants’ presence but even on the second call, none is present on their behalf.

4. Learned counsel for the plaintiff states that in the above facts and circumstances, the plaintiff is entitled to a judgment in terms of Order XXXVII Rule 3(6)(a) CPC.

5. The brief facts of the case as culled out from the plaint are that the plaintiff, which is a company incorporated under the Companies Act having its registered office at Rajasthan, is in the business of manufacturing printing ink. When the defendants had approached the plaintiff to place orders for supply of printing ink, the plaintiff had its head office at Nehru Place, New Delhi. The orders for supply of ink were placed by the defendants on the plaintiff at Delhi and the goods were supplied from the plaintiff’s Delhi office to the defendants at their unit situated in Faridabad, Haryana. The terms of the invoice raised by the plaintiff on the defendants for supplying the goods, stipulated that the defendants were to make the payment within 90 days from the date of supply of goods and in case of default, they were liable to pay interest @24% per annum.

6. Counsel for the plaintiff states that on receiving orders from the defendants, the plaintiff had supplied printing ink to them from time to time, commencing from the year 2003 till the year 2009. It is stated that an open and running account was maintained by the plaintiff in respect of the goods supplied to the defendants, as would be reflected from the extract of the ledger file, enclosed at Sr. No. 4 of the list of documents filed with the plaint.

7. It is submitted that as on 05.07.2009, the defendants were liable to pay a sum of Rs. 1,45,93,360/- to the plaintiff. At the end of the financial year 2009, the plaintiff had written a letter dated 06.03.2009 to the defendants calling upon them to confirm that as per their accounts, a sum of Rs. 1,47,11,118/- was due and payable to the plaintiff as on 28.02.2009. Learned counsel submits that the defendants had duly executed a confirmation note and confirmed inter alia that their books of account reflected an outstanding balance amount of Rs. 1,47,11,118/- payable to the plaintiff on 28.2.2009. Thereafter, the plaintiff had kept on pursuing the defendants for release of the payments and finally, in the month of December, 2009, they had issued the following two cheques in favour of the plaintiff:-

Sr. No. Cheque No. Date Bank Amount

1. 705352 21.12.2009 State Bank of Patiala, Faridabad (Main), Faridabad, Haryana. 55,42,694/-

2. 705354 28.12.2009 -do- 55,09,796/-

Total 1,09,52,490/-

8. The aforesaid cheques when presented by the plaintiff for encashm