Gautam Motors Pvt. Ltd. & Ors. vs Autocop India Pvt . Ltd.
2012 Latest Caselaw 4151 Del

*                THE HIGH COURT OF DELHI AT NEW DELHI

+                   C.R.P. 109/2011 & CM No. 15539/2011 (stay)

                                            Date of Decision: 13.07.2012

GAUTAM MOTORS PVT. LTD. & ORS. .... Petitioners//Defendants
                Through: Mr. Rajesh Tyagi, Advocate.

                                  Versus

AUTOCOP INDIA PVT . LTD.                       ..... Respondent/Plaintiff
                 Through:               Mr. Anurag Singh Rawat, Adv.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition is filed assailing order dated 01.03.2011 whereby an application of the petitioners seeking leave to defend under Order 37 Rule 3(5) CPC was dismissed.

2. The respondent/ plaintiff filed suit under Order 37 CPC against the petitioners for recovery of Rs.2,49,430/-.

3. I have heard learned counsel for the petitioners and perused the record.

4. It is seen that the suit was filed on the averments that the defendants approached the plaintiff for purchasing car security systems and other car accessories and the plaintiff supplied those goods against bills and invoices and for which the defendants had been making some part payment, but had been delaying remaining payments. It was averred that as per the running accounts maintained by the

plaintiff/respondent, a sum of Rs. 2,49,430/- was outstanding from the petitioners/defendants as on 16.01.2004. It was averred that a legal notice dated 27.10.2006 was issued to the defendants/petitioners, but despite that they have not made the payment.

5. The defendants/petitioners had denied their liability of payment. It was specifically averred that defendant No. 2 Mukesh Jain (Petitioner No.2, herein) had nothing to do with the dealings and was not personally liable, whereas petitioner/defendant No. 1- company did not exit any longer and has already been wound up in March 2008. It was averred that the suit under Order 37 CPC was not maintainable on the alleged outstanding amounts since the final liabilities were yet to be ascertained. It was also the plea of the petitioners/defendants that in any case, the alleged arrears were stated to be calculated as on 16.01.2004, but the suit was filed on 01.02.2007and thus it was apparently time barred.

6. From the averments of the plaint it comes out to be the case of the plaintiff/respondent that the petitioners/defendants are in arrears of Rs.2,49,430/- as on 16.01.2004 and if that was so, apparently, the suit which was filed on 01.02.2007 was time barred, having been filed beyond the period of limitation of three years. The learned trial court seems to have, apparently, erred in computing the period of limitation from the date of legal notice dated 12.10.2004. In any case, the plea of limitation that was taken and also the fact of amount of Rs. 2,49,430/-, already based on bills/invoices, were triable issues which could only be decided by way of evidence. At this stage the petitioners/defendants were not liable to make out a case as would warrant their sure success in

the end. Once they make out any triable issue, they are entitled to be granted leave to defend. In view of this the impugned order is set aside. The matter is remanded back to the trial court. The petitioners are directed to appear before the trial court on 25.07.2012. The trial court shall proceed further according to law. The petition stands disposed of accordingly.

M.L. MEHTA, J.

JULY 13 , 2012 awanish