Nine Dot Nine Mediaworx Pvt Ltd. vs Attero Recycling Pvt Ltd.
2014 Latest Caselaw 3091 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) 657/2014

%                                                   14th July , 2014

NINE DOT NINE MEDIAWORX PVT LTD.                ......Petitioner
                  Through: Mr.Krishnayan Sen, Advocate.



                          VERSUS

ATTERO RECYCLING PVT LTD.                                    ...... Respondent
                 Through:

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

C.M.No.11052/2014 (exemption)

1.    Exemption allowed subject to just exceptions.

2.    C.M. stands disposed of.

C.M. (M) No.657/2014 and C.M. No.11051/2014 (stay)

1.    This petition filed under Article 227 of the Constitution of India

impugns the order of the trial court dated 17.5.2014, by which the trial court

has refused to treat the suit as one under Order 37 CPC and had issued

summons in the suit to the defendant taking the suit to be an ordinary suit.



C.M.(M) No.657/2014                                               Page 1 of 3
 2.    I may note that since the defendant in the court below, and respondent

herein, has not been served before passing of the impugned order dated

17.5.2014, no notice is required to be issued in the present petition. Also in

case the defendant takes up an issue with respect to maintainability of the

suit, the same will be decided at the stage of deciding the application for

leave to defend. However, only prima facie view of the matter has to be

seen qua the applicability of Order 37 CPC at the time of issuing of

summons in the prescribed form.

3.    Learned counsel for the petitioner has drawn the attention of this

Court to page no. 57 of the present paper book, which contains the subject

purchase order, and it is argued that on the basis of the catena of judgments

of this Court, a written purchase order is a written contract under Order 37

CPC. I agree. Also I am bound by the judgments which have been rendered

by the different Single Judges of this Court.

4.    It may be noted that the expression 'written contract' does not say that

it should be a signed written contract. It is enough that there is a written

contract. A purchase order is a written contract.

5.    In view of the above, the impugned order dated 17.5.2014 is set aside

and the trial court is directed to issue summons to the defendant in the

requisite form under Order 37 CPC, leaving it open to the defendant if it so

C.M.(M) No.657/2014                                              Page 2 of 3
 wishes to take up any defence of alleged maintainability of the suit, and if

defence is so taken, the same will be decided in accordance with law at the

appropriate stage.

6.    In terms of the aforesaid observations, the petition is allowed and

disposed of along with interim application.


JULY 14, 2014                                   VALMIKI J. MEHTA, J.

KA