M/S Tritus Food Pvt. Ltd. & Ors vs Food & Ferro
2018 Latest Caselaw 5842 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 186/2018

%                                                26th September, 2018

M/S TRITUS FOOD PVT. LTD. & ORS                        ..... Appellants

                          Through:       None.

                          versus

FOOD & FERRO                                          ..... Respondent

                          Through:       None.

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

To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)

RFA No. 186/2018 and C.M. Appl. No. 6371/2018 (for stay)

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

of Civil Procedure, 1908 („CPC‟) is filed by the defendants in the suit

impugning the Judgment of the Trial Court dated 07.09.2017 by which

the trial court has dismissed the leave to defend application filed by

the appellants/defendants under Order XXXVII CPC and decreed the

suit for recovery of Rs. 20,67,107/- along with interest at 6% per

annum.

2. When the appeal first came up for hearing on 19.02.2018,

it was noticed that the suit was not maintainable under Order XXXVII

CPC, and therefore the following order was passed:-

"C.M. Appl. No. 6372/2018 (for exemption)

1. Exemption allowed, subject to all just exceptions. C.M. stands disposed of.

C.M. Appl. No. 6373/2018 (for delay)

2. For the reasons stated in this application, the delay of 39 days in re-filing the appeal is condoned, subject to just exceptions. C.M. stands disposed of.

RFA 186/2018 and C.M. Appl. No. 6371/2018 (for stay)

3. It has been held by this Court in the judgment in the case of IFCI Factors Ltd. Vs. Maven Industries Limited and Others 225 (2015) DLT 32 that an order 37 CPC suit cannot lie for seeking the balance due at a foot of a running account.

4. Notice be issued to the respondent on filing of process fee, both in the ordinary method as well as by registered AD post, returnable on 23rd May, 2018. Dasti."

2. The sole respondent is the plaintiff in the trial court and

on the first returnable date of hearing in this appeal the service report

was that the premises of respondent/plaintiff were locked.

Accordingly for today, which is the third date of hearing, it was

ordered that the respondent/plaintiff be served, besides by registered

AD post, also by affixation. The service report by registered post is

that there is no such person or company existing at the address of the

respondent/plaintiff, although the address at which the service was

sought to be effected is the same address which is mentioned by the

respondent/plaintiff itself in the plaint. Respondent/Plaintiff has

however been served by affixation in terms of the last Order dated

23.05.2018.

3. A reading of the subject plaint filed by the

respondent/plaintiff shows that the subject suit was filed on account of

the fact that the respondent/plaintiff pleaded that it supplied to the

appellants/defendants dry fruits and other food items for the years

2010 to 2012. The paras 3 and 4 of the plaint refer to the invoices and

the payments made, and thereafter paragraphs 5 and 6 state that

balance due from appellants/defendants to respondent/plaintiff is that

which is shown at the foot of the account, and which was not paid, and

for which amount the subject suit was filed. Paras 5 and 6 of the

plaint read as under:-

"5. That during the financial year of 2011-2012 plaintiff had supplied total goods worth Rs.28,32,915/- (Rs.Twenty Eight Lacs Thirty Two Thousand Nine Hundred Fifteen only) and during this period payments in different denominations have been received by the plaintiff for a sum of Rs.22,27,199/- (Rs.Twenty Two Lacs Twenty Seven Thousand One Hundred Ninety Nine only).

6. That as on 31/03/2102 a sum of Rs.20,67,107/- (Rs.Twenty Lacs Sixty Seven Thousand One Hundred Seven only) and thereafter till date no payments have been received from the side of the defendants."

4. In para 13 of the plaint, the respondent/plaintiff has not

stated as to how the suit is maintainable under Order XXXVII CPC as

it is not stated that the suit is filed on the basis of a particular

dishonoured negotiable instrument or a particual written contract

containing a liquidated liability. Para No. 13 only makes a bland

statement that the suit is filed under Order XXXVII CPC.

5. I have in the judgment in the case of IFCI Factors Ltd. v.

Maven Industries Limited and Others 225 (2015) DLT 32 held that a

suit under Order XXXVII CPC will not lie for claiming the amount

due shown as the balance due at the foot of the account because a suit

under Order XXXVII CPC lies either on the basis of a dishonoured

negotiable instrument or on a written contract containing a liquated

liability. Adopting the ratio of the judgment in the case of IFCI

Factors Ltd. (supra), it is held that the subject suit was not

maintainable under Order XXXVII CPC. Once the suit was not

maintainable under Order XXXVII CPC, then there did not arise any

issue of grant or refusal of leave to defend, and consequent decreeing

of the suit by the impugned judgment by dismissing the leave to

defend application.

6. In view of the aforesaid discussion this appeal is allowed.

Impugned Judgment of the trial court dated 07.09.2017 is set aside. It

is held that the subject suit was not maintainable under Order XXXVII

CPC. The subject suit filed by the respondent/plaintiff will now be

tried as an ordinary suit for recovery of moneys.

7. Parties to appear before the District and Sessions Judge,

Central District, Tis Hazari Courts, Delhi on 02.11.2018 and the

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

competent court in accordance with law.

SEPTEMBER 26, 2018/AK                       VALMIKI J. MEHTA, J