TaxTMI 
TaxTMI 
TaxTMI 
2013 (7) TMI 1250
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....ndant till 5.1.2011. The plaintiff submits that he had delivered the goods to the defendant between the period 2.4.2010 to 5.1.2011. In paragraph 4 of the plaint the details of 20 invoices raised on the defendant have been provided. The total amount due as per the said 20 invoices is Rs. 52,12,726/-. The plaintiff admits that defendant had paid Rs. 23,30,804/- and is liable to pay the remaining amount of Rs. 28,81,922/-. Summons of judgment in the prescribed format under Order 37 CPC Rule 3(4) CPC were issued to the defendant. The defendant entered appearance and after receiving the summons of judgment has filed the present application for leave to defend. The defendant in the leave to defend application has firstly submitted that the plaint does not comply with the mandatory provisions of Order 37 Rule 2 of CPC and that the requirement of making an inscription immediately below the number of the Suit and title of the Suit that the Suit is under Order 37 of Code of Civil Procedure has not been made in this case. Hence, it is submitted that present Suit cannot be treated as a Summary Suit. 2. It is secondly submitted by the defendant in his application that recently the plaintiff h....
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....ia Financial Services (P) Ltd. versus M/s. Atwal and Associates and Ors. dated 9th August, 2012 where it was held that Suits claiming amounts which are only balance due based on accounts cannot be treated as falling under Order 37 CPC because the amount claimed is not a liquidated amount. Hence, he submits that the present Suit under Order 37 CPC would not lie. He also relies upon an Order of a learned Single Judge of this Court dated 23rd January, 2012 in RFA 202/2011 titled as M/s. K.& K Health Care Pvt. Ltd. versus M/s. Pehachan Advertising. 6. The learned senior counsel for the defendant fourthly contends that if it is argued that the present suit is based on invoices, he submits that, then also a suit under Order XXXVII CPC cannot be filed based on invoices. He relies upon the aforenoted judgment of this High Court in the case of M/S. Associates India Financial Services Pvt. Ltd. (supra). 7. In view of the above grounds he submits that there are enough reasons that unconditional leave to defend should be granted to the defendant. 8. On the other hand, learned counsel for the plaintiffs submits that as far as compliance of Order 37 Rule 2 CPC is concerned the title of the Su....
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.... Engineers & Manufacturers v. M/s. Basic Equipment Corporation AIR 1977 SC 577, may be looked into for the said purpose. In para 8, the Hon'ble Supreme Court has held as follows: 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 17 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, she was such a state of facts as leads to the inference tha....
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....lised the goods for packaging of their rice and had also dispatched the packages containing rice to their customers abroad. It is difficult to believe that the defendant who is in the said trade since long time and have dealt with the plaintiffs since long, could not on an inspection of the goods and on usage of the goods detect defects in the quality of the goods supplied by the plaintiff. The contention is wholly meritless. 14. There is also merit in the submission of the learned counsel for the plaintiff that the two communications placed on record by the defendant are manipulated documents. No proof of despatch of these documents is filed. Further after letter dated 15.12.2010 was allegedly written by the defendant to the plaintiff the defendants have received material worth about Rs. 8 lac from the plaintiff. There was no protest or endeavour to ensure at that time that goods of the right quality were supplied to the defendant. There is not a whisper about this. In the two communications dated 15.12.2010 and 28.4.2011 the defendant does not point out the nature of defect in the goods. The communications clearly cannot be believed. 15. Notice may also be taken of the fact tha....
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....the same. This Court rejected the said contention and declined to grant leave to defend. The Court relied on Sec. 41 and 42 of the Sales of Goods Act. It was also pointed out in that case that the third party has taken no legal action against the defendant. This Court in the case of Lohmann Rausher GMBH (supra) while interpreting Sections 41 & 42 of the Sale of Goods Act held as follows in para 21: - 21. As per the mandate of Section 41 of the Sale of Goods Act, the defendant not having inspected the goods in question prior to delivery, had a right to inspect the case on delivery and report defects within a reasonable time of delivery. If not rejected within reasonable time, mandate of Section 42 stipulates that the defendant would be deemed to have accepted the goods. 17. One may have a look at sections 41 and 42 of the Sales Good Act, 1930 which read as follows:- 41. Buyer's right of examining the goods.-(1) Where goods are delivered to the buyer which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contrac....
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.... figures mentioned in the plaint. Learned senior counsel fairly stated that in the application for leave to defend the receipt of the goods, the value of the goods and payments having been made by the defendant is not disputed. He submitted that the defence of the defendant is regarding quality of goods. 20. The judgments cited by the learned counsel for the plaintiff to argue that a suit based on statement of account does not lie under Order 37 CPC would not apply to the facts of the case. In both cases namely Associate India Financial Services (supra) and M/s. K & K Health Care Pvt. Ltd. the Court came to the conclusion that the case is based on the statement of accounts. Hence, the said judgments have no application to the present facts as I have held that the present suit is based on invoices. 21. In the context of the above contention of the learned senior counsel for the defendant, reference may also be had to the judgment of this Court in M/s. Dura - Line India Pvt. Ltd. Vs. BPL Broadband Network Pvt. Ltd. (AIR 2004 Delhi 186) where in para 8 the Court held as follows: 8.... The said submission is misconceived. The suit is based on a written contract comprising the off....