M/S Navi Gold Paint Corporation vs Shri Gagan Bhalla
2011 Latest Caselaw 3850 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 09.08.2011

+             CM(M) No. 818/2010 & CM No. 11051/2010

M/S NAVI GOLD PAINT CORPORATION        ........... Petitioner
                   Through: Mr. Prashant Batra, Advocate.

                     Versus

SHRI GAGAN BHALLA                              ..........Respondent
                          Through:   Mr. Pankaj Kapoor and Mr.
                                     Vikram Kapoor, Advocates.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?               Yes

    3. Whether the judgment should be reported in the Digest?
                                                         Yes

INDERMEET KAUR, J. (Oral)

1 The order impugned before this Court is the order dated

19.03.2010 vide which in a suit under Order XXXVII of the Code of

Civil Procedure (hereinafter referred to as the 'Code'), on the

application for leave to defend filed by the defendant; the same

had been allowed. Vide the impugned order, the defendant had

been directed to file his written statement; it was an unconditional

leave to defend the suit which had been granted in favour of the

defendant. This order has been impugned.

2 Record shows that the present suit is a suit for recovery of

`1,12,240/- which is the amount due from the defendant;

contention of the plaintiff was that he had supplied goods which

included paints and thinner to the defendant against bills which

were duly acknowledged by the defendant; running account was

maintained between the parties; the plaintiff demanded the

amount but the defendant was making requests for time to pay up

the amount; legal notice dated 10.12.2007 had also been served

upon the defendant. Present suit was accordingly filed under

Order XXXVII of the Code.

3 After service of summons for judgment, application for

leave to defend had been filed by the defendant. The defence

raised in the said application was that the suit is barred by

limitation although no further detail was given as to how and on

what count it was barred by limitation; further contention was

that the goods which had been supplied by the plaintiff were

defective and the same had been returned for which debit notes

had been issued from time to time; the account books of the

plaintiff are incorrect and fabricated. This was the defence of the

defendant.

4 On these facts, leave to defend was granted to the

defendant. The impugned order had noted the judgment titled as

Lakhani Rubber Works Vs. Ritzy Polymers 167 (2010) DLT 521 to

hold that since the facts were similar and the defence raised by

the defendant was that the goods were defective, it was a triable

issue entitling the defendant for leave to defend. The impugned

order had also relied upon another judgment reported in AIR 2002

NOC 235 i.e. the judgment of Smt. Neeta Aggarwal Vs. R.L.

Gupta. Contention of the petitioner before this Court is that both

the judgments are distinct on their own facts.

5 In the case of Lakhani Rubber (Supra), the matter had

been remanded back by the High Court to the trial Judge for

considering the application for leave to defend afresh. In the case

of Neeta Aggarwal (Supra), the defence raised by the defendant

was that good were defective and of inferior quality and the same

had been returned against challans; details of the challans had

been furnished; it was in these circumstances that the leave to

defend had been granted.

6 The facts of the instant case are distinct. Although the

defendant had raised the plea and set up the defence that the

goods of the plaintiff were defective, his submission is that the

same had been returned against debit notes issued by him from

time to time. Admittedly the said debit notes had not been filed

along with the application for leave to defend. Further submission

of the defendant/respondent before this Court is that the bills

which had been issued by the plaintiff had been returned with an

endorsement pointing out the defects in the goods. Bills have been

filed before this Court collectively as Annexure 'B'. The case of the

plaintiff is in fact based on these bills which are at pages 29 to 44.

None of these bills have any such endorsement. On specific query

put to learned counsel for the respondent on this count, he has no

answer. He has also admitted that the debit notes (which find

mention in his application for leave to defend) had not been filed

along with his application for leave to defend; specific contention

of the defendant in his application for leave to defend was that the

debit notes had been issued by him to the plaintiff from time to

time wherein the defect in the goods had been pointed out. This

has also been noted in the impugned order. These debit notes

were however not filed and are not a part of the record.

7 In these circumstances, the contention of the plaintiff that

the defence of the defendant was moonshine, sham and illusory is

correct. The whole purpose, object and intent of the provisions of

Order XXXVII of the Code would be defeated if the defendant is

granted leave to defend in a suit of such a nature on a defence

that is per-se illusory. No triable issue has been raised by the

defendant. The impugned order suffers from an illegality. It is set

aside. The suit of the plaintiff is decreed in the sum of `1,12,240/-

with interest @ 7% per annum from the date of filing of the suit

till realization.

8. Petition is disposed of.

INDERMEET KAUR, J.

AUGUST 09, 2011 a