2018 (5) TMI 991

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....470/2018 (stay) 3. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant nos.1 and 3 RFA No.401/2018 Page 2 of 6 in the suit impugning the judgments of the Trial Court dated 22.3.2017 and 12.7.2017, whereby the appellants/defendant nos.1 and 3 in an Order XXXVII CPC suit who were granted conditional leave to defend by depositing 50% of the principal amount being the amount of dishonoured cheques which totalled to Rs. 88,71,105/- on having failed to comply with the pre-condition, hence the suit was decreed. As per the provision of Order XXXVII Rule 3(6) in case the condition imposed while granting leave to defend is not complied with, then the respondent no.1/plaintiff is entitled ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....de no 666835 dated 06-02-15, amounting of Rs. 81,71,105/- (Eighty One Lakh Seventy One Thousand One Hundred Five Only) dated 06/02/2015 in favor of plaintiff payable on Syndicate Bank, Rajender Place, East Patel Nagar, New Delhi-110008. And the same is annexed herewith as Annexure III." 6. The appellants/defendant nos.1 and 3 after service of summons of the judgment filed their leave to defend application and in the leave to defend application the main ground which was urged, and which is also the only ground urged before this Court in this appeal, was that the goods which were supplied by the respondent no.1/plaintiff to the appellants/defendant nos.1 and 3 were defective and hence the respondent no.1/plaintiff was not entitled to the a....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ent with the ownership of the seller, or when, after the lapse of a reasonable time, he retain the goods without intimating to the seller that he has rejected them." 8. On a query to the counsel for the appellants/defendant nos.1 and 3, it is conceded that neither in the leave to defend application nor in this Court documents have been filed showing any RFA No.401/2018 Page 5 of 6 intimation sent by the appellants/defendant nos.1 and 3 to the respondent no.1/plaintiff/seller, that the goods supplied under the subject invoices as stated in para 4 of the plaint, are defective. Once that is so, the provision of Section 42 of the Sale of Goods Act applies and hence it was not open to the appellants/defendant nos.1 and 3 to contend that payme....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....the provisions to assist expeditious RFA No.401/2018 Page 6 of 6 disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security. 17.4 If the Defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires. 17.5 If the Defendant has no substantial defence and/or raises no genuine triable issues, and the ....