Svam Soft Ware Ltd. vs Point To Point Couriers
2002 Latest Caselaw 623 Del

JUDGMENT

R.C. Jain, J.

1. This civil revision is directed against the order of the learned Civil Judge dated 15-7-2000 by which an application under Order 37 Rule 3(5) read with Section 151 CPC moved on behalf of the petitioner-defendant seeking leave to defend a summary suit filed by the plaintiff-respondent has been declined and the suit of the plaintiff-respondent has been decreed.

2. The relevant facts to be noted for the disposal of the revision petition are that the plaintiff-respondent had filed a suit for the recovery of Rs.22,596/- as the amount of two bills for the month of August and September, 1998 in respect of the courier services rendered by the plaintiff to the defendant besides interest and expenses of the legal notice to the tune of Rs.550/- under the provisions of Order 37 CPC. The petitioner-defendant on receipt of the summons had put in appearance and on receipt of the summons for judgment, applied for leave to defend by means of an application several grounded fully detailed in the application. However, the main ground being that the suit of the plaintiff-respondent was not covered by the provisions of Order 37 inasmuch as the suit was not based upon any written contract or for payment of debt or liquidated amount. It was also pleaded in the application for leave to defend that owing to the certain negligence on the part of the plaintiff in delivering certain parcels/articles in the United States there has been undue delay on account of which the defendant has suffered damages to the tune of $ 20,000 which he is entitled to recover from the plaintiff. On the other hand it was pleaded by the plaintiff that the defense sought to be putforth by the defendant was a sham one and raised no tribal issue and the defendant had in fact admitted their liability to pay the suit amount once the bills were received in their office.

3. I have heard the learned counsel for the revision petitioner and the respondent. It is not disputed that contract/credit form "a" dated 11-12-97 was executed between the parties which inter-alia contains the following terms:-

"(i) All courier Services rendered on Credit terms and bills submitted fortnightly.

(ii) Bills to be paid within 7 days of receipt, at the failure of which interest @ 24% p.a. shall be charged.

(iii) The Courier shall bear no responsibility of delays due to improper invoicing/any other discrepancies in dispatching.

(iv) The Courier shall bear no unnatural expenses on behalf of the Company (viz. Octroi Taxes, Sales Taxes etc.)

(v) All payments shall be made in favor of "POINT TO POINTS COURIERS".

4. The contract was valid for a period of one year. It is not disputed that the petitioner availed the Courier services of the plaintiff-respondent in respect of various articles during the months of August and September, 1998 and certain bills raised for those services were received in their office. However, the contention of the learned counsel for the petitioner is that the said bills were not in conformity with the said contract stated to have been entered between the parties on 11-12-1997 inasmuch as neither the bills were drawn on fortnightly basis nor there payment was insisted within two weeks nor the stipulation about the payment of interest for the duration of unpaid amount was adhered to. As against this, the contention of the learned counsel for the rendered is that the defendant-petitioner cannot be allowed to raise any such defense once they do not dispute the receipt of the bills and its non-payment to the plaintiff within the stipulated period.

5. This court on a consideration of the matter is of the view that a suit under Order xxxvII CPC should fall in once of the Clauses envisaged by Rule 2 of the said order. In the case in hand no doubt the plaintiff entered into a contract as well as the bills were drawn but as noticed above it is seen the terms of the said contract seem to have been observed by the parties more in breach than in its observance. Besides the defendant had raised the defense with regard to the having suffered damages on account of delayed delivery of the articles in USA. It appears that trial court was mostly guided by the existence of so called contract and delivery of bills at the defendant office and declined the leave to defend and decreed the suit. In the opinion of this court some of the defense pleas as raised in the leave to defend application raised tribunal issues which could only be answered after a full dress trial. On the face of the facts, circumstances and material obtaining on record and the law on the subject, this court is of the view that it was a fit case where leave to defend ought to have been granted to the petitioner-defendant and suit could not have been decreed straight away.

6. In the result this revision petition is allowed and the impugned order dated 15-7-2000 is hereby set aside. The application of the petitioner-defendant for leave to defend shall be deemed to have been allowed. The parties are directed to appear before the learned trial court on 13th May, 2002, for receiving further directions in the matter. Needless to mention that any observation made herein will not tantamount to expression of opinion on the merits of the case. It is stated by the learned counsel for the respondent that the petitioner-defendant has already paid half of the decretal amount to the plaintiff/decree holder. The payment so made will be subject to the final outcome of the suit.