SOUMEN SEN,J. - (1.) The Court: The claim in the suit is arising out of price of goods sold and delivered. The defendant was the sole selling agent of BOSCH India Ltd. The petitioner used to purchase diesel fuel injection spare parts sold under the logo BOSCH through the defendant no.1. The plaintiff from time to time disbursed diverse sums on various dates out of which it is claimed that the defendant has failed to deliver the goods aggregating to a sum of Rs.69,90,000/-.
(2.) The petitioner in the affidavit in support of the summons for final judgment has relied upon five cheques aggregating to a sum of Rs.45 lakhs which have been issued by the respondents. In view of its failure to supply goods worth Rs.69 lakhs and odd, the petitioner demanded refund of the consideration amount. The petitioner says that the respondents represented that their principal BOSCH Ltd. is unable to supply the goods due to huge outstanding of the respondents and refused to supply the goods to the respondent no.1. In view thereof, the respondent is unable to supply the balance quantities. The respondent would refund the amount representing the value of the undelivered quantities in instalments as they are in financial difficulties. The respondent claimed to have issued five post dated cheques as mentioned aforesaid in acknowledgement of its liability and had promised to pay the said sum along with interest at the rate of 36% per annum. The plaintiff alleged that the said cheques on presentation on their due dates were returned with the endorsement 'insufficient fund'. The suit was filed essentially for recovery of the amount in respect of undelivered goods. The petitioner contends that by reason of failure of consideration the plaintiff is entitled to a sum of Rs.69,90,000/- together with interest.
(3.) The respondent has filed its affidavit in opposition and also a supplementary affidavit. In the affidavit in opposition the respondent contended that the respondent nos.2 and 3 in the usual course of business used to sign number of cheques in blank and keep the said cheques in the office so that the business of the respondent no.1 firm is not hampered in any manner whatsoever due to their non-availability. In the day to day business, these cheques were issued by the respondent no.1 to BOSCH Ltd. as and when required. The five cheques forming the subject matter of the suit duly signed by the respondent nos.2 and 3 were kept in the office of the respondent no.1 sometime in the month of September, 2011 and were to be handed over to BOSCH Ltd. Subsequently, in or about 1st October, 2011 the respondent no.2 and 3 realized that the said cheques, previously signed by them as authorized signatory of the respondent no.1 firm had gone missing. The respondent nos.2 and 3 were initially under the mistaken impression that the said cheques had been lost in transit on 30th September, 2011 lodged a FIR on 1st October, 2011. However, later on it transpired that the said cheques, in fact, were stolen from the office of the respondent no.1. The respondents, however, refrained from filing any FIR in respect of such stolen cheques in order to preserve the reputation and goodwill of the respondent no.1 firm. In view of the later revelation of theft the FIR was not pursued. The stolen cheques, however, are now found to be filled up by the plaintiff/petitioner and presented to the bank for encashment. The respondent apprehending that the said five cheques, which initially was thought to have been lost in transit, could be used by unscrupulous persons to their benefit issued a stop payment instruction to the bank. In view thereof, the remark of the bank while returning the said cheques due to "insufficient fund" is factually incorrect. It is submitted that the entire goods required to be delivered by the respondent, in fact, were delivered and duly received by the plaintiff. The respondent in the supplementary affidavit has disclosed vat returns apparently to show that the respondents, in fact, had supplied materials aggregating to Rs.2,88,21,11,103/- in value to the petitioner.;