Delhi High Court
M/S R.D Goel & Co Pvt Ltd vs M/S Ok Play India Ltd on 8 September, 2014
$~ 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1280/2012
% Judgment dated 8th September, 2014
M/S R.D GOEL & CO PVT LTD ..... Plaintiff
Through: Mr.Ajay Kohli and Ms.Sarvodaya
Lakshmi, Advocates
versus
M/S OK PLAY INDIA LTD ..... Defendant
Through: Mr.K. Hashavardha, Advocate
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
IA.No.2769/2014
1.
Plaintiff has filed the present suit for recovery of Rs.21,42,852/- against
the defendants under the provisions of Order XXXVII of the Code of
Civil Procedure. The suit is based on 58 bills, details of which have been
extracted in paragraph 4 of the plaint. It is the case of the plaintiff that the
defendant had been engaging the services of the plaintiff company for the
purposes of transporting its consignments. With respect to each
consignment a separate goods receipt was drawn by the plaintiff. As per
business practice the plaintiff raised bills upon the defendant company
inter alia in respect of the freight charges, payable by it, towards the
carriage performed by the plaintiff company. It was agreed between the
parties that the amounts were to be cleared within 60 days of the
submission of the bills, however, the defendant company failed to make
the payments. As the defendant company failed to make payment within
the stipulated period, the defendant rendered itself liable for interest @
18% p.a. Thus a total sum of Rs.4,87,000/- has become due and payable
as on 31.12.2011. Further, defendant company also made unwarranted
deductions in various bill amounts as enumerated in paragraph 5 of plaint,
making a total of Rs.2,26,181/- for said deductions.
2. Therefore, plaintiff claims from defendant company, Rs.14,29,478
towards outstanding bills, a further sum of Rs.2,26,181/- towards
wrongful deductions and Rs.4,87,000 towards interest, making a total sum
of Rs.21,42,852/-.
3. The defendant has sought unconditional leave to defend inter alia on the
ground that this Court has no territorial jurisdiction. The application for
summons for judgment was filed after delay of 16 months, and moreover,
the present suit is not maintainable under the provisions of Order 37 CPC
as the bills sought to be relied upon by the plaintiff do not contain the
necessary details, which would include the agreed freight charges and the
time period for payment.
4. Counsel for the plaintiff submits that even as per the own showing of the
defendant, a sum of Rs.11,97,802/- is due and payable, which is evident
upon reading of the statement of account of the defendant filed by the
plaintiff. The same is disputed by counsel for the defendant.
5. In the case of M/s.Mechalee Engineers & Manufacturers Vs. M/s.Basic
Equipment Corporation AIR 1977 SC 577 the Apex Court has drawn up
the parameters to be considered by the court while dealing with the
application for leave to defend. Relevant praras of the judgment reads as
under:
"8. In Smt. Kiranmoyee Dassi and Anr. v. Dr. J. Chatterjee 49
C.W.N. 246 , Das. J., after a comprehensive review of authorities
on the subject, stated the principles applicable to cases covered by
order 37 C.P.C. in the form of the following propositions (at p.
253):
(a) If the Defendant satisfies the Court that he has a good
defence to the claim on its merits the plaintiff is not entitled
to leave to sign judgment and the Defendant is entitled to
unconditional leave to defend.
(b) If the Defendant raises a triable issue indicating that he
has a fair or bona fide or reasonable defence although not a
positively good defence the plaintiff is not entitled to sign
judgment and the Defendant is entitled to unconditional leave
to defend.
(c) If the Defendant discloses such facts as may be deemed
sufficient to entitle him to defend, that is to say, although the
affidavit does not positively and immediately make it clear
that he has a defence, yet, shews such a state of facts as leads
to the inference that at the trial of the action he may be able
to establish a defence to the plaintiff's claim the Plaintiff is
not entitled to judgment and the Defendant is entitled to
leave to defend but in such a case the Court may in its
discretion impose conditions as to the time or mode of trial
but not as to payment into Court or furnishing security.
(d) If the Defendant has no defence or the defence set up is
illusory or sham or practically moonshine then ordinarily the
Plaintiff is entitled to leave to sign judgment and the
Defendant is not entitled to leave to defend.
(e) If the Defendant has no defence or the defence is illusory
or sham or practically moonshine then although ordinarily
the Plaintiff is entitled to leave to sign judgment, the Court
may protect the Plaintiff by only allowing the defence to
proceed if the amount claimed is paid into Court or otherwise
secured and give leave to the Defendant on such condition,
and thereby show mercy to the Defendant by enabling him to
try to prove a defence."
6. Taking into consideration the submissions made by counsel for the
parties, prima facie, I am of the view that the defendant has been able to
make out a case for grant of conditional leave to defend. The grounds
raised in the leave to defend would require trial and cannot be decided
without recording of evidence. I am of the view that the defence sought to
be raised by the defendant cannot be termed as sham or moonshine and
thus it would fall under exception (c) and would be entitled to conditional
leave to defend.
7. Upon deposit of Rs.12.0 lacs in the Court within eight weeks the
defendant shall be entitled to contest the matter.
8. Counsel for the plaintiff submits that he will make an application for
release of this amount, which shall be considered when such an
application is moved.
9. Application stands disposed of, in above terms.
CS(OS) 1280/2012
10. Let the written statement be filed within 30 days. Replication be filed
within 30 days thereafter. Parties will file documents within the same
period.
11. List the matter before the Joint Registrar for admission /denial of
documents on 13.11.2014.
12. List the matter before Court on 9.12.2014 for framing of issues. Parties
shall bring suggested issues to Court on the next date of hearing.
IA.No.2849/2013 [u/O.37 Rule 3(1) CPC]
13. Since the leave to defend application has been filed and decided, the
present application stands disposed of.
IA.No.2076/2014 [u/O.37 Rule 3(4) CPC]
14. Since the leave to defend application has been filed and decided, the
present application stands disposed of.
G.S.SISTANI, J
SEPTEMBER 08, 2014
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