M/S Abhani Distributor vs M/S Mirik Health Foods Pvt. Ltd.
2012 Latest Caselaw 4252 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                        C.M. (M) No. 801/2012

                                           Date of Decision:18.07.2012

M/s Abhani Distributor                                  ...... Petitioner

                         Through:     Mr. K.K. Jha, Advocate

                                 Versus

M/s Mirik Health Foods Pvt. Ltd.                    ...... Respondent

                         Through:

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

M.L. MEHTA, J. (Oral)

1. The petitioner assails order dated 4.4.2012 whereby leave to

defend was granted to the respondent in the suit filed against him by the

petitioner (plaintiff there in Suit U/O 37 CPC). The suit was filed for

recovery of Rs.3,24,518/- with interest. It was averred that an

agreement dated 21.04.2006 was executed between the petitioner and

the respondent whereby the petitioner was to act as a forwarding agent

of the respondent for its business in Kolkatta. A sum of Rs.2,00,000/-

was stated to have been given by the petitioner to the respondent as

security. It was alleged that since the respondent did not entrust its

business activities to the petitioner for Kolkatta, the petitioner

terminated the agreement vide its letter dated 20.05.2006 and asked for

return of the security amount. The defendant/respondent having failed

to return, the petitioner wrote few letters. In response, the respondent

also wrote a letter asking for the copy of the original agreement, despite

that it was having a copy thereof. Ultimately, this led to the petitioner

filing of the instant suit U/O 37 CPC wherein the respondent filed

application for leave to defend and which came to be allowed vide

impugned order by the Learned ADJ. This is the order which has been

assailed by the petitioner in the instant petition.

2. The pleas which have been taken by the respondent include that

the petitioner has suppressed the material facts inasmuch as, as per the

terms of the agreement a sum of Rs.15,00,000/- was required to be

deposited by him, whereas he deposited only Rs.2,00,000/- as a token

amount of security. It was averred that since the petitioner failed to

deposit the balance agreed security amount, the deposit of security

amount of Rs.2,00,000/- was forfeited. The respondent has also taken

the plea that it had incurred huge expenses for advertisement and

towards wages and salaries of the staff appointed, but since the

petitioner neither deposited the balance agreed amount of security nor

complied with other terms of the agreement such as arranging godown,

etc. and breached the terms of the agreement, thus the security amount

was forfeited It is next averred that the petitioner had filed a criminal

case at Kolkatta and now has chosen to file this suit at Delhi which had

no territorial jurisdiction, since the petitioner had already chosen the

jurisdiction of Kolkatta.

3. Having heard the learned counsel for the parties and from the

averments as noted above, it would be seen that the issues which were

raised by the respondent in the leave to defend application were

certainly triable. The issue of the responsibility of the petitioner to pay

Rs.15,00,000/- as security and its being unable to pay the same and

resultantly the respondent being entitled to forfeit the same was a triable

issue, which would require to be determined in the suit filed by the

petitioner. Similarly, the issue regarding the petitioner having failed to

comply with certain other terms and conditions of the agreement and

resultantly the respondent having incurred certain expenses as noted

above, and entitled to forfeit the security amount, was another important

triable issue. In view of this, I see no illegality or infirmity in the

impugned order.

4. The petition is hereby dismissed.

M.L. MEHTA, J.

JULY 18 , 2012 pkv