Delhi High Court
Shri Yatinder Kumar vs M/S Neelkanth Drugs Pvt.Ltd.. on 1 October, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 910/2014 & CM Nos. 16616/14 (Exemption) &
16615/14(Stay)
% 1st October , 2014
SHRI YATINDER KUMAR ......Petitioner
Through: Mr. S.N.Gupta, Advocate.
VERSUS
M/S NEELKANTH DRUGS 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)
1. This petition under Article 227 of the Constitution of India is
filed against the order of the trial court dated 2.9.2014 by which the trial
court while allowing the leave to defend application of the
petitioner/defendant directed the petitioner/defendant to deposit the amounts
with respect to 11 out of 27 invoices with respect to which the suit for
recovery of Rs.6,74,314/- was filed.
2. The impugned order notes that petitioner/defendant pleaded that
for 11 invoices he had made the payment in cash, but no proof was given
CMM 910/2014 Page 1 of 4
with respect to payments made in cash and therefore, effectively the trial
court holds that the defence of payment with respect to 11 invoices is a
moonshine defence.
3. I completely agree with the conclusion of the trial court because
in suits for recovery of monies under Order XXXVII of Code of Civil
Procedure, 1908 (CPC) defences such as the present of allegedly having
made payments in cash do not have any substance and hence courts are
justified in directing deposit of the amount with respect to invoices which
are allegedly said to have been paid in cash but which plea is a bald and an
unsubstantiated plea. In fact, in my opinion, the trial court has been more
than liberal to the petitioner because actually the suit could have been
decreed so far as 11 invoices are concerned once the defence raised of
payments in cash is a total moonshine defence and consequently, there was
no requirement to grant leave to defend so far as the 11 invoices are
concerned.
4. I may note that the trial court has passed a balanced order
because so far as the other invoices totaling to 27 invoices, ie invoices other
than 11 invoices are concerned, trial court has granted unconditional leave to
defend because as regards these 16 other invoices respondent/plaintiff did
not file on record any proof of delivery of the goods, for which the suit for
CMM 910/2014 Page 2 of 4
recovery was filed.
5. Learned counsel for the petitioner argued before this Court that
the suit was in fact not maintainable under Order XXXVII CPC because
there is no averment in the plaint that no relief which does not arise under
Order XXXVII CPC has been claimed in the suit, and therefore,
unconditional leave to defend had to be granted. However, this argument is
without merit firstly, because no prejudice is caused to the
petitioner/defendant if the technical averment is not made once the necessary
procedure under Order XXXVII CPC, of leave to defend being filed and
considered on merits, has been followed. Secondly, it is noted that this
ground which is now urged before this Court for the first time is not found in
the leave to defend application which is filed by the petitioner/defendant.
There is a fixed period for filing of a leave to defend application, and in that
fixed period all grounds on which the defendant claims leave to defend have
to be urged, and which ground are considered at the time of hearing of the
leave to defend application. Surely, if no ground is raised in the leave to
defend application filed in the trial court, the same could not have been
decided, and that aspect hence cannot be urged in a challenge laid to an
order of the trial court before this Court. If a case is not pleaded, then how
can the petitioner/defendant expect that the trial court should have decided this
CMM 910/2014 Page 3 of 4
aspect. Thirdly and finally, by not raising the ground in the leave to defend
application, this defence is deemed to be waived. In any case, as stated
above, there is no prejudice to the petitioner/defendant.
6. Dismissed.
OCTOBER 01, 2014 VALMIKI J. MEHTA, J.
ib
