Delhi High Court
M/S Coim India Pvt Ltd vs Rexor India Ltd & Ors on 30 January, 2014
Author: G. S. Sistani
$~ 30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 287/2011
% Judgment dated 30.01.2014
M/S COIM INDIA PVT LTD ..... Plaintiff
Through: Mr.Pankaj Chaudhary, Advocate
versus
REXOR INDIA LTD & ORS ..... Defendant
Through: None.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
I.A. 8952/2011
1.
This is an application for summons for judgment. No further orders are
required to be passed in the application and the application is accordingly
disposed of.
CS(OS) 287/2011
2. Despite the matter being passed over once and called a second time, none
is present on behalf of the defendant. The plaintiff has filed the present
suit under Order 37 of the Code of Civil Procedure. After service of
summons in the prescribed form, the defendant filed address for service
and thereafter an application was filed by the plaintiff for summons for
judgment.
3. In terms of Sub Rule (5) of Rule (3) of Order 37 CPC, defendant was to
file an application for leave to defend. In the order dated 20.5.2013 it was
noticed that counsel for the defendant had informed the court that an
application for leave to defend had been filed, but no such application was
listed. Vide order dated 12.7.2013 an application [I.A.No.10714/2013]
filed by the defendant seeking condonation of four days' delay in filing
the application for leave to defend, was allowed by imposing costs of
Rs.3,000/- on each of the defendants and time was granted to the plaintiff
to file reply to the application for leave to defend. Advance copy of the
reply to the leave to defend application was handed over to counsel for the
plaintiff in court on 25.7.2013.
4. On the last date of hearing counsel for the defendant was not ready with
the matter and sought an adjournment for today. Despite the matter being
passed over once and called a second time, none is present on behalf of
the defendant today.
5. It may also be noticed that although reply to the leave to defend and
rejoinder to the reply, are already on record, but there is no application for
leave to defend on record. It is seems that either no such application was
filed or it was returned with objections. This is evident from the fact that
neither the plaintiff has mentioned number of the application for leave to
defend in reply nor the defendants, applicants mentioned any I.A. number
while filing the rejoinder.
6. The plaintiff has filed the present suit under Order 37 CPC for recovery of
Rs.72,14,950/-. As per the plaint, the plaintiff deals in items used in the
manufacture of shoe soles, synthetic leathers and adhesives, and polyster
system like polyol, Isocyanate Urecom, Catalyst, Polyurathanes, Polyol
Exter etc. The defendants have been purchasing goods from the plaintiff
even prior to 26.4.2008 on credit basis. Goods had been supplied to the
defendants and Sales-tax Form „C‟ / Declaration Form had been received.
7. Copies of invoices have been filed by the plaintiff for the period
26.4.2008 to 20.2.2010, when orders were placed and goods were
supplied, further details of invoices have been given in the plaint. The
defendant no.2 to 4 purchased goods from the plaintiff in the total sum of
Rs.65,14,425.44.
8. According to the plaintiffs, goods were supplied to the satisfaction of the
defendants. The receipt of the goods vide invoices were duly
acknowledged by the defendants. The defendants company has also
issued in favour of the plaintiffs a declaration form VAT-D1 in respect of
invoices raised from 26.4.2008 to 17.2.2009 with a promise to pay the
outstanding payment.
9. In the case of M/s.KIG Systel Ltd. Vs. M/s.Fujitsu ICIM Ltd. AIR 2001
DELHI 357, it was held:
"The defendant / applicant has also challenged the
maintainability of the issue under Order XXXVII of the
C.P.C., stating that "there is no debt or liquidated demand in
money payable to defendant-company (sic. Read plaintiff)
and/or based on a written contract". It is no longer res
integra that Invoices/ Bills are „written contracts‟ within the
contemplation of this Order. Reference is directed to Messrs.
Punjab Pen House v. Samrat Bicycle Ltd., AIR 1992 Delhi 1,
Corporate Voice (Pvt.) Ltd. vs. Uniroll Leather India Ltd.,
(1995) 60 DLT 321, and Beacon Electronics v. Sylvania and
Laxman Ltd., 1998(3) Apex Decisions (Delhi) 141 : (1998
AIHC 3118). There is, thus no hesitancy in holding that the
present suit is a suit which should be tried under the
summary procedure of Order XXXVII of the CPC."
10. Sub-Rule(6) of Rule 3 of Order XXXVII CPC, reads as under:
"[3] (6) At the hearing of such summons for judgment:-
(a) if the defendant has not applied for leave to defend, or
if such application has been made and is refused, the
plaintiff shall be entitled to judgment forthwith; or
(b) xxxxx"
11. There is no application for leave to defend on record. Assuming such an
application has been filed, the same was not registered and even otherwise
none is present to press the application for leave to defend. Accordingly,
the present suit is decreed. Plaintiff would be entitled to pendente lite
interest @8% and future interest at the same rate from the date of filing of
the suit till the date of decree and from the date of the decree till
realization.
G.S.SISTANI, J
JANUARY 30, 2014
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