Delhi High Court
Halcyon Asia Management vs Hotel Blue Stone on 30 May, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 240/2012
% 30th May, 2012
HALCYON ASIA MANAGEMENT ...... Appellant
Through: Mr. Atul Bandhu and Mr. Alok Singh,
Advocates.
VERSUS
HOTEL BLUE STONE ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM No.10113/2012 (delay in re-filing)
For the reasons stated in the application, delay in refiling the appeal is
condoned. CM stands disposed of.
CM No. 10112/2012 (Exemption)
Exemption allowed subject to just exceptions.
CM stands disposed of.
RFA No.240/2012 & CM No.10111/2012 (Stay)
1. This Regular First Appeal filed under Section 96 of the Code of Civil
Procedure, 1908 (CPC) impugns the judgment of the trial Court dated 20.3.2012
RFA No. 240/2012 Page 1 of 5
decreeing the suit of the respondent/plaintiff under Order 37 CPC for recovery of
`4,05,898/- alongwith interest at 10% per annum simple and the cost of the suit by
dismissing leave to defend application filed by the appellant/defendant.
2. The facts of the case are that the respondent/plaintiff was a hotel and
it provided rooms for stay of the employees of the appellant/defendant. With
respect to the occupancy of different dates invoices were raised, which were not
paid and hence the subject suit came to be filed. Before filing of the suit the
appellant/defendant by its e-mail dated 31.5.2010 had acknowledged and accepted
the liability.
3. The trial Court has dismissed the application for leave to defend by
giving the following important conclusions:-
"4.2 For the following reasons as well as for want of any
triable issue, the defendant's application is dismissed:-
(a) the application does not elaborate as to how the bills
are excessive or inaccurate, despite the defendant was provided
with record of all bills;
(b) the rooms were booked on the basis of requisitions
through telephone calls and e-mails, it was never suggested to
plaintiff that a particular person is not employee of defendant;
(c) an e-mail dated 09.12.2009 at 15:47, has been
compared with another e-mail dated 09.12.2009 at 16:26 and
03:22 pm, to highlight that there is a contradiction and the e-
mail is manipulated, whereas the first e-mail is with regard to
booking of the room, second e mail is with regard to Indica Cab
and third e-mail is a confirmation. It is not contradictory.
(d) the bills are from the period December 2009, the suit
was filed on 15.09.2010 and prior to it, there is exchange of
RFA No. 240/2012 Page 2 of 5
correspondence by e-mails, the last e-mail is of 31.05.2010,
whereby the defendant confirmed to pay the amount shortly.
The bills were never challenged or protested; and
(e) the defendant is M/s. Halcyon Asia but leave to defend
application is under the pen and seal of "Provident Investments
and Industries India Pvt. Ltd."
4. A reading of the aforesaid para and other reasons given in the
impugned judgment shows that at no point of time during the contemporaneous
period of December, 2009 to June, 2010 was a single letter/e-mail written by the
appellant/defendant to the respondent/plaintiff that the rooms have not been
utilized and charges will not be paid. Therefore, making this averment only for the
first time in the leave to defend application cannot in any manner assist the
appellant/defendant, and therefore, this defence is clearly a moonshine. Further,
the trial Court has very rightly relied upon the acknowledgment made by the
appellant/defendant in its letter dated 31.5.2010, however, when I put a query to
the counsel for the appellant/defendant as to why that e-mail which has been relied
upon by the trial Court has not been filed in the present appeal, counsel for the
appellant/defendant could not give any reason as to why the e-mail dated
31.5.2010 was not filed. In my opinion, non filing in this appeal of a vital
document relied upon by the trial Court clearly goes against the
appellant/defendant.
RFA No. 240/2012 Page 3 of 5
5. Learned counsel for the appellant/defendant sought to argue that the
invoices in this case cannot be the basis of a suit under Order 37 CPC inasmuch as
there has to be a written contract. I may state that there are various judgments of
this Court which hold that invoices are a written contract once all the necessary
details are contained in the invoices/written contracts. Of course, if after the
drawing of and submitting of the invoices, certain payments are made and
thereafter, balance is claimed at the foot of a running account, then the suit may not
be said to be under Order 37 CPC based on the amounts of invoices only, however,
in the facts of the present case since the counsel for the appellant/defendant admits
that no payment whatsoever was made by the appellant/defendant against the
invoices, the suit remains for the total value of the invoices which are the written
contract for the purpose of Order 37 CPC. That written invoices are contracts is no
longer res integra and has been so held in various judgments of learned Single
Judges of this Court. Two of such judgments are Bharat Forge Ltd. Vs. Onil
Gulati AIR 2005 Del 369 and Lohmann Rausher Gmbh Vs. Medisphere
Marketing Pvt. Ltd 117 (2004) DLT 95. In this later judgment, the learned Single
Judge has relied upon four other earlier judgments of different learned Single
Judges of this Court holding that written invoices are written contracts once all the
necessary details are contained therein. In the present case, the necessary details as
RFA No. 240/2012 Page 4 of 5
to the parties to the contract, the amounts which are claimed under the invoices and
the days of occupancy for which amounts are claimed, are specified in the written
invoices.
6. The law with respect to the grant of leave to defend is contained in the
celebrated judgment in the case of M/s Mechalec Engineers & Manufacturers vs.
M/s Basic Equipment Corporation Ltd. AIR 1977 SC 577, as per which judgment,
the basic test which the Supreme Court has laid down is that if there is a bonafide
triable issue only then leave to defend is to be granted and in case the defence is a
moonshine, leave to defend ought not to be granted. Considering the fact that
honest and correct defences are normally of contemporaneous period with the
events, inasmuch as once lawyers and litigation come before the Court various
defences are raised and obviously all are not correct defences, I hold in the present
case that defences as being raised are only moonshine inasmuch as at no point of
time the appellant made any correspondence during the contemporaneous period
denying its liability.
7. I thus do not find any merit in the appeal which is dismissed leaving
the parties to bear their own costs.
MAY 30, 2012 VALMIKI J. MEHTA, J.
ib
