Madras High Court
M/S.Daily Traders vs M/S.Kids World on 23 October, 2024
C.R.P.(PD).No.4271 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.10.2024
CORAM :
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(PD).No.4271 of 2024
and C.M.P.No.23749 of 2024
M/s.Daily Traders
Represented by its proprietor
Anwar Naseem Banu @ Naseem Banu .. Petitioner
Versus
M/s.Kids World
represented by its sole proprietor,
Kamlesh Jain .. Respondent
Prayer : Civil Revision Petition filed under Article 227 of the Constitution
of India to set aside the order and decreetal order passed in I.A.No.4 of 2024
in C.O.S.No.197 of 2023, dated 03.08.2024 on the file of the Additional
Commercial Court, Egmore at Chennai.
For Petitioner : Mr.M.Sunil Kumar
ORDER
This Civil Revision Petition arises against the order passed by the
Additional Commercial Court, Egmore in I.A.No.4 of 2024 in C.O.S.No.197
of 2023, dated 03.08.2024. By the impugned order, the learned Commercial
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Judge allowed the application filed under the Order XXXVII Rule 3 of the
Code of Civil Procedure, but, with certain conditions. Aggrieved by the
said conditions, the defendant preferred this Civil Revision Petition.
2. The plaintiff seeks for recovery of a sum of Rs.11,17,640.80 ps
together with interest at the rate of 24% per annum on the principle debt of
Rs.8,79,080/-. It is the case of the plaintiff that on 10.10.2019, the
defendant placed orders for supply of baby products which was done on
14.10.2019. In pursuance to the purchase order, on 18.10.2019, the plaintiff
supplied materials to the defendant. The last of transactions was on
18.10.2019. As there were defaults that were committed by the defendant,
the plaintiff issued a lawyer's notice on 23.11.2020. Since there was no
response, he presented C.O.S.No.132 of 2021 on the file of the Commercial
Court at Banglore. The said suit was returned for want of territorial
jurisdiction. Hence, he presented C.O.S.No.197 of 2023 as an under chapter
suit.
3. On being served with the summons for judgment, the defendant
took out an application for leave to defend. The said application was
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numbered as I.A.No.4 of 2024. The pleas that were raised by the defendant
were that
(i) the same suit, as returned by the Karnataka Court, was not
represented;
(ii) the original claim was Rs.11,32,640.80 ps, whereas, the present
claim is Rs.11,17,640/-;
(iii) the bills are bogus and fabricated and the defendant is not liable
to pay any amount to the plaintiff and
(iv) as the last of the invoices was on 18.10.2019, the suit presented
before the Commercial Court in C.O.S.No.197 of 2023 is barred by time.
4. A counter was filed by the plaintiff denying the aforesaid
averments. The learned Judge heard both the parties and came to a
conclusion that the defendant is entitled for leave to defend on deposit of
Rs.8,79,080/- on or before 19.08.2024.
5. Heard Mr.M.Sunil Kumar, learned Counsel for the civil revision
petitioner.
6. I do not have to labour much on the position of law. It has been
settled by the Supreme Court in I.D.B.I Trusteeship Services Limited Vs.
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Hubtown Limited., (2017) 1 SCC 568. Hon'ble Mr.Justice R.F.Nariman,
speaking for the bench, held that if a defence is sterling in character, the
defendant would be entitled to unconditional leave to defend. He pointed
out that if the defence is absolute moonshine, then, the defendant is not
entitled to leave at all. In case, the defence falls between the two extremes
pointed out above, the defendant will be entitled to leave subject to certain
deposits which the Court will decide at its discretion depending upon the
facts and circumstances of the case. The learned Judge specifically held that
in case, the amount is admitted, the defendants would have to deposit the
admitted amount. Remembering these principles, I approach the facts of the
present case.
7. The relationship between the parties is not in dispute. The plaintiff
supplied baby products from Banglore to the defendant in Chennai. He
invoked the jurisdiction of the Banglore Court and presented a suit. The
said suit was returned for want of territorial jurisdiction. The plea of the
defendant that instead of representing the returned suit, since a fresh suit
was filed and therefore, it is not maintainable, is not acceptable to me. This
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is because, the plaintiff is entitled to bring forth a suit before the
Commercial Court at Chennai as long as it is within the period of limitation.
8. The learned Judge pointed out that the last of the supplies by the
plaintiff to the defendant was on 18.10.2019. Therefore, the plaintiff has
time to present the suit till 17.10.2022. However, he presented the suit on
19.06.2022 and hence, it is well within the time. Therefore, the plaintiff is
entitled to file a fresh suit on the basis of the original cause of action of
supply.
9. The learned Judge, considering the fact that there is no agreement
between the parties to pay 24% per annum, rejected the claim of the plaintiff
on that score. He directed the defendant only to deposit a sum of
Rs.8,79,080/- which is the principle amount. The supply from the plaintiff
to the defendant, having been demonstrated by the suit invoices as well as
by the G.S.T payments made by the plaintiff and the G.S.T details that were
produced by the plaintiff as the document No.10, I do not find any reason to
take a different view from that of the learned Trial Judge.
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10. In the light of the above discussion, despite the vehement pleas of
Mr.M.Sunil Kumar, I am not in a position to accept the same. The order of
the Additional Commercial Court at Egmore does not require to be revised.
The order stands confirmed.
11. The learned Judge granted time to the defendants to deposit the
amounts by 19.08.2024. As the defendants were pursuing this Civil
Revision Petition, I am inclined to extend the time for deposit till
30.11.2024. It is made clear that on such deposit, the same shall be kept in
an interest bearing account, so that, in case the defendant succeeds, they
would be entitled to the said amount without any loss of interest. Further, if
the defendant succeeds in getting the suit dismissed, then, the Court should
ensure that the costs are imposed on the plaintiff for having made the
defendant deposit the said amounts.
12. With the above observations, this Civil Revision Petition stands
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
23.10.2024
Index : yes/no
Speaking order/Non-speaking order
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Neutral Citation : yes/no
grs
To
The Additional Commercial Court,
Egmore at Chennai.
https://www.mhc.tn.gov.in/judis
V.LAKSHMINARAYANAN, J.
grs
23.10.2024
https://www.mhc.tn.gov.in/judis
