Intarvo Technologies Ltd ... vs A R Printer Point Thr Is Prorietor
2018 Latest Caselaw 4972 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RFA No. 667/2014

%                                                   23rd August, 2018


INTARVO TECHNOLOGIES LTD (PREVIOUSLY KNOWN
AS RT OUTSOURCING SERVICES LTD) THR ITS DIRECTOR
                                               ..... Appellant
                   Through: None.
                   versus
A R PRINTER POINT THR IS PRORIETOR         ..... Respondent

Through: Mr. Somesh Yadav, proxy Advocate (Mobile No. 8826264455).

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code Civil

Procedure, 1908 (CPC) impugns the Judgment of the Trial Court dated

18.9.2014 whereby the trial court has dismissed the leave to defend

application filed by the appellant/defendant in an Order XXXVII CPC

suit.

2. A reading of the plaint shows that the suit is not based upon a

dishonoured negotiable instrument or upon a written agreement

containing a liquidated liability. All that is stated in the plaint is that

respondent/plaintiff supplied cabling services to the

appellant/defendant and as a result of which in terms of the invoices

the amount of Rs.2,85,894/- became due and which bills were annexed

as Annexure P-3 to the suit.

3. I have examined this aspect in detail in the judgment in the case

of IFCI Factors Limited Vs. Maven Industries Limited and Ors.,

2015 (255) DLT 32 and held that a suit under Order XXXVII CPC

cannot lie for claiming balance due at the foot of the account and

Order XXXVII CPC suit only lies when there is either a negotiable

instrument or a written agreement containing a liquidated liability, and

which aspects do not exists as per the plaint in the present case,

inasmuch as, supply by the respondent/plaintiff to the

appellant/defendant is on a project contract/project basis and such an

aspect is not a subject matters of the provision of Order XXXVII Rule

1(2) CPC which provision provides the only subject matters on the

basis of which Order XXXVII CPC suit can be filed. I am not

reproducing herein the ratio of the judgment in the case of IFCI

Factors Limited (supra), inasmuch as, the said judgment and ratio is

prolix and therefore the same is not reproduced herein to avoid

prolixity.

4. In view of the aforesaid discussion, this appeal is allowed.

Impugned judgment dismissing the leave to defend application is set

aside. Since the suit was not maintainable as an Order XXXVII CPC

suit there does not arise the issue of considering of a leave to defend

application. The subject suit will be tried as an ordinary suit for

recovery of moneys.

5. Parties to appear before the District and Sessions Judge, South-

East District, Saket Courts, New Delhi, on 27th September, 2018 and

the District and Sessions Judge will now mark the suit for disposal to a

competent court in accordance with law by treating the suit as an

ordinary suit for recover of moneys.

AUGUST 23, 2018                             VALMIKI J. MEHTA, J
AK