Delhi District Court
Adj04 (Nw) vs Mr. Sanjeev Parvatkar on 24 April, 2014
1
IN THE COURT OF SH. PRASHANT KUMAR,
ADJ04 (NW), ROHINI DISTRICT COURTS, DELHI.
CS No. 449/14
M/s Paramount Intercontinental Pvt. Ltd.
A duly registered company through its authorized representatives
Sh. Manjul Gupta,
Having its registered office at
56B, BlockED, Madhuban Chowk,
Pitam Pura, Delhi. ............Plaintiff
Versus
Mr. Sanjeev Parvatkar,
Proprietor of M/s Satyam Enterprises,
02, Trimurti, 105/A, NG Acharya Marg,
Chembur, Mumbai ..........Defendants
Date of Institution of the case : 15.10.2011
Date of hearing arguments : 07.04.2014
Date of announcing the Judgment : 24.04.2014
O R D E R
1. By this order, I shall decide one leave to defend application filed on behalf of the defendant. The grounds taken by the defendant in his leave to defend application in brief, are as under:
That this court is not having jurisdiction to try this case and the plaint is liable to be returned to the plaintiff on this ground. The office of the defendant is situated in Mumbai. As per CPC, the suit is to be instituted in a court within the local limits of whose jurisdiction the defendant at the time of commencement of the suit, carries on the business or personally works for gain etc. The defendant is carrying on business from Mumbai at present. The goods have been dispatched from its factory situated at 2 Sonepat, Haryana & delivered to defendant at Bhopal. It is further stated that as per the terms and conditions mentioned in the invoices so issued in this case, one of the stipulations is that "all the claims be settled at Sonepat Jurisdiction". Hence, this court has no jurisdiction to try this suit.
That the suit filed by the plaintiff is bad on account of non joinder of necessary parties i.e. M/s Mechmark Engineers Pvt. Ltd. The plaintiff has alleged that M/s Mechmark Engineers Pvt. Ltd. is the sole distributor on behalf of the plaintiff company. He was introduced as the sole distributor for business dealings on behalf of the plaintiff company to the defendant. It has been mentioned by the plaintiff in the plaint that the defendant placed a purchase order dated 11.12.2009 with M/s Mechmark Engineers Pvt. Ltd. and this fact has been reflected in various emails including email dated 16.08.2010.
That the suit filed by the plaintiff is not maintainable under the summary procedure as prescribed u/o 37 CPC as it has not been instituted on the basis of written contract. All the transaction occurred between the defendant and M/s Mechmark Engineers Pvt. Ltd. and defendant was not privy to the relationship between the plaintiff and M/s Mechmark Engineers Pvt. Ltd. It is further stated that the purchase order was in fact issued by defendant to the M/s Mechmark Engineers Pvt. Ltd. which was forwarded by M/s Mechmark Engineers Pvt. Ltd. to the plaintiff vide indent advice issued by M/s Mechmark Engineers Pvt. Ltd. Hence, there was no agreement between the plaintiff and the defendant. The said purchase 3 order issued by the defendant to the M/s Mechmark Engineers Pvt. Ltd. does not amount to the written contract between the plaintiff and the defendant.
Another objection taken by the defendant in their leave to defend application is that the plaintiffs have not supplied the entire set of documents to them which are derogatorily supposed to be supplied to them alongwith the summons for appearance or summons for judgment. Therefore, as plaintiff has not disclosed all the relevant documents on which they are relying upon, hence, the defendants can not take all the plausible defence in this application, hence, it is a triable issue.
That the plaintiff has suppressed & concealed true and material facts and the suit filed by him is liable to be dismissed on this ground itself.
It is stated that the defendant firm deals in air conditioning, refrigeration system etc, and is the sub contractor of Voltas Ltd. which provides engineering solutions for a wide spectrum of industries in areas such as heating, ventilation & air conditioning, refrigeration etc. Defendant, somewhere in December 2009, inquired from M/s Mechmark Engineers Pvt. Ltd. about products manufactured by the plaintiff company and after negotiation agreed to the quality of the material/ goods to be supplied to the defendant and mode of payment etc. The defendant had to supply supply goods to the principal contractor Voltas Limited which had undertaken the insulation project at the Raja Bhoj Airport. It was agreed 4 between the plaintiff and M/s Mechmark Engineers Pvt. Ltd. that goods to be supplied should adhere to a certain quality standard and any defective or low quality goods supplied by the plaintiff would be returned back and engineers and officials of Voltas Limited would ascertain the quality standard of such goods. The purchase order so placed by the defendant to M/s Mechmark Engineers Pvt. Ltd. was forwarded to the plaintiff by him and the defendant admitted the same and also deposited an amount of Rs. 42,000/ as per requirements for supplying the copy of form 49. The plaintiff supplied goods from its factory in Sonepat to the purchasing site at Raja Bhoj Air Port in Bhopal vide invoice no. 1909 for a sum of Rs. 3,74,045/ which was raised by the plaintiff. The goods were inferior in quality. The plaintiff also issued supplementary invoice no. 1978 for an amount of Rs. 55,019/ rectifying the mistaken in invoice no. 1919. The goods so supplied were not upto mark and a complaint for which was immediately raised by the defendant with the plaintiff. The plaintiff admitted such discrepancy in the quality of goods and accordingly issued credit note bearing no. C39 dated 29.03.2010 for Rs. 6688/ against invoice no. 1919 towards quality claim. Defendant after adjusting the amount paid in advance, paid an amount of Rs. 3,80,376/ vide cheque dated 02.07.2010 towards settlement on invoice no. 1919. Defendant also applied for form C which was issued by the State of Maharashtra and was sent to M/s Mechmark Engineers Pvt. Ltd. on 22.05.2012. Another order was placed vide email dated 16.08.2010 addressed to M/s Mechmark Engineers Pvt. 5 Ltd. which was forwarded by him to the plaintiff and he accordingly dispatched the goods from the factory in Sonepat, Haryana to Bhopal and raised invoice no. 945 for an amount of Rs. 3,63,440/. Defendant after being satisfied with the quality of the goods, paid an amount of Rs. 3,63,440/ vide cheque dated 12.01.2011. Defendant placed another order of goods vide email dated 06.10.2010 to M/s Mechmark Engineers Pvt. Ltd. for supply of goods i.e. rolls of insulation plain with self adhesive backing, XPE FR grey plain with self adhesive backing etc. to be supplied in Bhopal. M/s Mechmark Engineers Pvt. Ltd. forwarded this order to the plaintiff and he accordingly dispatched the goods from its factory in Sonepat to the project site at Bhopal. These goods supplied by the plaintiff were defective and did not match the quality standard. The engineers of Voltas Limited were facing problem with the insulation material who found it to be of poor quality. This fact was brought to the knowledge of M/s Mechmark Engineers Pvt. Ltd. and the plaintiff by one Mr. Shane D'Cruz of Voltas Limited vide email dated 27.11.2010. Neither the plaintiff nor M/s Mechmark Engineers Pvt. Ltd. had taken any step to resolve the problem. Voltas Limited made several requests to the plaintiff, however nothing has been done by the plaintiff in that regard due to which both Voltas Limited and defendant were incurring losses on account of delay. The defendant, thereafter, vide an email dated 07.12.2010 addressed to one Mr. Pawan Hudda of M/s Mechmark Engineers Pvt. Ltd. informed the plaintiff that the goods received from the plaintiff vide delivery challan no. 1275 dated 6 18.10.2010 does not meet the quality as agreed upon. Plaintiff deputed its technical personnel at the site in Bhopal and it was found that the goods were of poor quality and they were not self adhesive and it was assured by the plaintiff company orally that such goods would be replaced in near future. However, it had not been replaced. Plaintiff company also suggested to the defendant to use adhesive material and assured the defendant for reimbursement of the cost of the same which defendant would incur. Defendant vide email dated 23.12.2010 once again intimated the plaintiff and M/s Mechmark Engineers Pvt. Ltd. about the problem faced by him and Voltas Limited, and asked for the corrective action on their part. The plaintiff despite of assurance extended by it, have not reimbursed the defendant till date towards the additional expenses borne by him. The defendant has rejected 20 rolls of 12 mm thickness and informed the plaintiff and M/s Mechmark Engineers Pvt. Ltd. to take them back and issue the credit notice in lieu of the same. It was also agreed by the plaintiff and M/s Mechmark Engineers Pvt. Ltd. that the payment vide bill no. 1275 would be met after the defective rolls were replaced and the additional cost would be reimbursed for the last lot of the goods. Defendant and Voltas Limited had incurred huge loss due to delay due to the plaintiff.
Plaintiff and M/s Mechmark Engineers Pvt. Ltd. have breached the trust between them. Hence, the defendant is not liable to pay anything.
2. In his reply to the leave to defend application, the plaintiff has stated that the application moved by the defendant and the ground so taken by 7 him is false, illusionary, moon shining and frivolous. It is stated by the plaintiff that the purchase order for the goods were placed through emails which was received at Delhi. Therefore, this court is having territorial jurisdiction to try this case. Plaintiff in this regard has filed documentary evidence in form of email communication in between the parties containing the purchase orders etc. It is further stated by him that the suit filed by him is very well covered u/s 37 of CPC as M/s Mechmark Engineers Pvt. Ltd. is merely working as agent and sole distributor of the plaintiff. The goods were required by the defendant who is sub contractor of Voltas Limited and were to be supplied by the plaintiff company. Therefore, there is a duly executed contract in between the plaintiff and the defendant and neither the plaintiff nor the defendant can be said to be stranger to the contract. It is stated by the plaintiff in his reply that it is the defendant who has suppressed the material facts and not the plaintiff. There are so many email communication in between the parties which reflects that the plaintiff has taken all the due precautions and has extended its services and has met with all the demands and problems, if any, faced by the defendant or Voltas Limited. The defendant has issued C form to the plaintiff which is again covered within the definition of written agreement in between the parties reflecting the transactions taken place between the defendant and the plaintiff, therefore it is covered under the section 37 of CPC. It is further stated in the reply that M/s Mechmark Engineers Pvt. Ltd. is not necessary party and is mere facilitator and more 8 or less an agent of the plaintiff. The principal parties are plaintiff and defendant. It is further stated that defendant have accepted the goods and have not been making payment deliberately and withheld the same on false pretext.
3. Arguments heard at length. I have perused the averments by the parties in their respective pleadings. I have also perused all the relevant documents filed and relied upon by both the parties. All the grounds so taken by the defendant in the leave to defend application are taken up one by one in the following paras:
(i) First ground taken by the defendant in his leave to defend application is that this court has no territorial jurisdiction to try this case. The plaintiff has drawn attention towards the email communications in between the parties.
After careful perusal of the email communications filed alongwith the suit and some of the emails filed by the defendant alongwith their leave to defend application, it is reflected that they were addressed to one M/s Mechmark Engineers Pvt. Ltd. which was forwarded and delivered at their office in Delhi. Thus, the purchase order is communicated to the plaintiff through email which is received at Delhi. As per section 4 & 5 of Indian Contract Act and the subsequent amendments in Evidence Act after the invention of the computer, a communication through computer and internet and a communication through email is to be considered as oral communication which is different from postal communication as envisaged and contemplated by Indian Contract Act1872 when such an event of 9 communication by postal department was prevalent only hence was enshrined and considered and incorporated in Indian Contract Act. The computer was at its inception and it was developed after 1950s and in recent time the development and invention in this sector is remarkable which were not at the time when this Act was enforced in the year 1872. Thus, the communication through internet, through emails, after invention of new technology, is considered as equivalent to oral communication. Thus, the communication in such cases is said to be completed where it is received and the place where it is received is considered as the place where the contract is accepted. From the document so filed and relied upon by the plaintiff and which is not disputed by the defendant, it is reflected that such emails which are containing purchase orders are received by the plaintiff at their Delhi office.
The counsel for defendant has drawn attention towards one of the expression in the invoices so issued in between the parties which says that "all claims must be informed within 24 hours of delivery. All claims to be settled at Sonepat jurisdiction." It is stated on behalf of the defendant in this regard that it is reflected from the invoices itself that the jurisdiction in this case is lying at Sonepat. Counsel for the plaintiff has stated that the mandatory requirement as per the law i.e. mentioning the word "only" is not mentioned after the word Sonepat.
Both the counsels have relied upon certain judgments respectively. They are analyzed one by one as under:
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The defendant has relied upon the judgments on the point of jurisdiction which are as under:
Angile Insulations Vs. Davy Ashmore India Ltd. & Anr. (1995) 4 Supreme Court Cases 153 wherein it has been held that " when there an objection pertaining to the territorial jurisdiction of the court, it is normally lies where cause of action arisesbut it will be subject to terms of a valid contracat between the parties where two courts having jurisdiction consequent upon a part of the cause of action arising therewith, if parties stipulate in the contract to vest jurisdiction in one such court to try the disputes arising between themselves and if the contract is unambiguous, explicit and clear and is not pleaded to be void and opposed to S. 23 of the Contract Act, then suit would lie in the court agreed to by the parties and the other court will have no jurisdiction even though cause of action arose partly within the territorial jurisdiction of that court." Another judgment relied upon by the defendant is Shriram City Union Finance Corporation Ltd. Vs. Rama Mishra, (2002) 9 Supreme Court Cases 613 and M/s Cheema Enterprises Vs. M/s Mayur Enterprises, JT 2001 (Suppl.1) SC 560. Both these judgments have laid down similar grounds as dealt with in Angile Insulations (Supra) Defendant has relied upon one more judgment i.e. Swastic Gases Pvt. Ltd. Vs. Indian Oil Corporation Ltd, decided on 03.07.2013 wherein the Hon'ble Supreme Court of India has observed that in jurisdiction clause of an agreement absence of words like 'alone', 'only', 'exclusive' or 11 'exclusive jurisdiction' in jurisdiction clause was not decisive nor did it make any material difference in deciding the jurisdiction of the court. The back ground of this case is however, different from the facts and circumstances of the present case. In the present case, the contract has been accepted and concluded through email at Delhi, the part payment has been received at Delhi with regard to which the defendant is not disputing or stated any contrary facts. The earlier two bill for a sum of Rs. 3,80,376/ rd and Rs. 3,63,440/ respectively have been paid at Delhi. The 3 bill for a sum of Rs. 3,68,000/ is under consideration vide the present suit. This, the part of cause of action has arose within the jurisdiction of Delhi court. Therefore, the intention of the parties can not be said to exclude the jurisdiction of any other place where part of cause of action has taken place. Thus, the judgment of Swastic Gases Pvt. Ltd. (Supra) is not applicable in the present facts and circumstances.
4. The plaintiff has also relied upon the following Judgments:
R. S. D. V. Finance Co., Pvt. Ltd. Vs. Shree Vallabh Glass Works Ltd., JT 1993 (1) S. C. 617. This judgment has been relied upon by the plaintiff on the point of exclusive jurisdiction clause. It has been observed in this case that "there was a clause in invoice that an endorsement 'subject to Anand jurisdiction' and it was held that such endorsement has been made unilaterally by the defendant while issuing the deposit receipt. This endorsement does not contain the outster clause using the words like 'alone', 'only', 'exclusive' and the like. Thus, the 12 jurisdiction of any other court as per agreement can not be said to be excluded.
Another Judgment relied upon by the plaintiff is A.B.C. Laminart Pvt. Ltd. & anr. Vs. A. P. Agencies, AIR 1989 SC 1239, wherein Hon'ble Supreme Court of India has held on similar ground as observed in above mentioned judgment namely R. S. D. V. Finance Co., Pvt. Ltd. Vs. Shree Vallabh Glass Works Ltd. and has stated that non mentioned of the words words like 'alone', 'only', 'exclusive' etc. does not rule out the jurisdiction of other courts as per the terms of agreement on the basis of cause of action. It has been further observed in this case that "
where the parties to a contract agreed to submit the disputes arising from it to a particular jurisdiction which would otherwise also be a proper jurisdiction under the law, their agreement to the extent they agreed not to submit to other jurisdictions can not be said to be void as against public policy. If on the other hand the jurisdiction they agree to submit to would not otherwise be proper, jurisdiction to decide disputes arising out of the contract it must be declared void being against public policy.
It is reflected from careful perusal of the judgments relied upon by both the parties, and considered, that mere non mentioning of the words like 'alone', 'only', 'exclusive' etc. after the word 'subject to jurisdiction of Sonepat' does not exclude the jurisdiction of any other court as per the terms and conditions that court is having jurisdiction to decide the case. It has already been observed above that as the email has been received by 13 the plaintiff at Delhi, payment have been received on earlier occasion from time to time at Delhi, therefore, the part of cause of action has arisen within the jurisdiction of Delhi court.
5. Therefore, I am of the considered opinion that by virtue of section 4 & 5 of Indian Contract Act as well as considering the laws laid down under Information Technology Act and the subsequent amendments in Indian Evidence Act and after considering the judgments passed by Hon'ble Suprement court of India and Hon'ble High Court of Delhi in this regard, I am of the considered opinion that the court in Delhi is having jurisdiction to try this case as the contract in this case is said to be concluded within the jurisdiction of this court. Thus, this submission made by defendant in the leave to defend application that the court of Delhi is not having territorial jurisdiction to try this case, is not tenable in the eyes of law. Hence, leave to defend can not be granted on this point.
(ii) Coming to the second objection taken by the defendant in leave to defend application is that the suit is bad due to non joinder of the necessary parties. It has already been observed in above paras while dealing with first objection raised by the defendant that M/s Mechmark Engineers Pvt. Ltd. is an agent and sole distributor of the plaintiff. The main parties to the contract are plaintiff and defendant. All the major communication including the supply of the goods, raising invoices and making payments against these invoices have been made in between the plaintiff and defendant. The plaintiff in the present case has been claiming 14 the recovery of the amount as mentioned in the plaint. It is apparent from the record itself, that the goods were supplied by the plaintiff to the defendant who is sub contractor of Voltas Limited, therefore, the only necessary parties in this case are plaintiff and defendant. Hence, the arguments put forth by the plaintiff is tenable in the eyes of law and the objection taken by the defendant is not having any force, hence, leave to defend can not be allowed on this objection.
(iii) The third ground taken by the defendant in his leave to defend application is that the suit filed by the plaintiff is not covered u/o 37 CPC. In this regard, the averment made by both the parties as well as documents filed alongiwth are perused thoroughly. The purchase order is admittedly placed by the defendant with M/s Mechmark Engineers Pvt. Ltd. which is forwarded by M/s Mechmark Engineers Pvt. Ltd. to the plaintiff. It has already been observed that there is a privity of contract in between the plaintiff and the defendant and either of the party is not stranger to the contract. The purchase order placed by the defendant was made in consultation with the plaintiff, though M/s Mechmark Engineers Pvt. Ltd. Duly executed invoices have been raised by the plaintiff from time to time in this regard. All these documents i.e. purchase order and invoices so raised are very well covered within the definition of written agreement. Hence, I am of the considered opinion that this objection taken by the defendant in his leave to defend application is not tenable in the eyes of law.
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(iv) The fourth objection taken by the defendant is that the plaintiff has not supplied complete set of documents. In this regard, counsel for the plaintiff has stated that summons have been issued to the defendant accordingly as per rules and procedures and the process fee filed by the plaintiff as per the procedure can not be accepted by the Ahlmad of the court without the complete set of documents. It is further stated that the defendant has not denied that he has received certain documents with the process. It is further stated that if any such documents were deficient then no objection was taken by the defendant at the time of putting their appearance, nor any objection has been taken subsequently on any of the date fixed for appearance. It is further stated that this matter has been argued more than one time by the counsel for the defendant, however, on earlier occasion no such plea was taken on their behalf and in the meantime, this case was transferred to this court by way of routine transfer of matters. Hence, such an objection taken by the defendant is not supported by any facts and is vague and ambiguous.
The record is perused thoroughly.
It is reflected from the record that this matter has been argued more than once from the side of the defendants. Nowhere in the order sheets it has come from the side of the defendants that they have not received complete set of documents, hence, as no such objection was taken by them for which they were having an ample opportunity. Therefore, it is considered that this objection has been taken by the defendant for the sake 16 of taking such defence only. The facts available on record are reflecting a contrary story. Thus the conduct of the defendant themselves, as on record, is speaking against them in this regard. Therefore, such plea taken by the defendants is not tenable in the eyes of law.
(v) The last objection taken by the defendant is that the plaintiff has suppressed the material facts. In this regard, all the facts alleged by the defendant in their leave to defend application have been mentioned above which are not repeated here for the sake of brevity. Counsel for the plaintiff in his arguments has stated that there is a duly executed valid agreement which has resulted into a binding contract which is enforceable by law, has been entered into in between the parties. Counsel for the plaintiff has drawn attention towards certain emails which are received by him through their sole distributor M/s Mechmark Engineers Pvt. Ltd. The plaintiff has also drawn attention towards the purchase order dated 11.12.2009. This order is placed by Satyam Enterprises to paramount intercontinental Pvt. Ltd. This document is not disputed by the defendant. The plaintiff has also drawn attention towards all the other emails which were sent to them through M/s Mechmark Engineers Pvt. Ltd. by defendant, have been received at Delhi as already mentioned above. Receiving of these emails alongwith the purchase order by the plaintiff at Delhi is also not disputed by the defendant. Thus part of cause of action, as already stated above has arisen in Delhi. During arguments, the plaintiff has further stated that part payment is made at Delhi. C form is also issued in the name of Delhi which 17 is one of the documents filed by the defendant alongwith their leave to defend application. With regard to the other facts alleged by the defendant that they were facing certain problems being sub contractor of Voltas Ltd. and they had communicated that fact to the plaintiff for which plaintiff has not taken any appropriate corrective measures. In this regard, the plaintiff's counsel has again drawn attention towards certain email communications. One of the email is dated 27/11/2010 sent at 14.09 pm wherein defendant has asked for taking corrective action. Plaintiff has replied the same through email dated 30.11.2010, through M/s Mechmark Engineers Pvt. Ltd. directly addressed to Voltas Limited, which reflects that certain corrective measures are suggested on behalf of the plaintiff. From the perusal of the record another email dated 07.12.2010 is reflected which is addressed on behalf of the defendant to M/s Mechmark Engineers Pvt. Ltd. wherein they have asked for further corrective actions at their end. There is another email dated 23.12.2010 given by Sanjeev Parbatkar to M/s Mechmark Engineers Pvt. Ltd. in which they have stated that as a corrective action they are applying adhesive manually and fixing it again to GI Ducts which involves a cost of about Rs. 75/m2. In this regard, the plaintiff has stated that they have done all the necessary things which they could do in this regard. It is further stated during arguments that the defendants and their main contractor Voltas Limited have accepted and consumed the goods and have not laid any claim regarding damages so suffered by them. The counsel for the plaintiff has drawn attention toward 18 email dated 04.12.2010 alleging that the main contractor of the defendant M/s Voltas Limited in this email communication has not stated anything that the goods were defective.
In these circumstances, it is therefore, reflected that all the things alleged by the plaintiff are self explanatory from the documents so filed by them as well as from the documents filed and relied upon by the defendant. The counsel for the plaintiff has drawn attention towards the relevant provisions of Sales of Goods Act. It is stated that once, as per the contract the goods is delivered to the other party and if it is accepted and consumed/ used by other party then, the other party is liable to make the payment thereof provided they are able to communicate their losses, if any, suffered by them within reasonable time.
Section 42 & 43 of Sale of Goods Act are relevant to mention here which reads as under:
Section 42 of Sale of Goods Act provides that "the buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them."
Section 43 of Sale of Goods Act provides that "unless otherwise agreed, where goods are delivered to the buyer and he refuses to accept them, having the right so to do, he is not bound to return them to 19 the seller, but it is sufficient if he intimates to the seller that he refuses to accept them."
In this regard, counsel for the plaintiff has relied upon certain judgments which are mentioned as under:
Lohmann Rausher Gmbh Vs. Medisphere Marketing Pvt.
Ltd., 117(2004) DLT95, 2005 (80) DRJ9, wherein Hon'ble Justice Mr. Pradeep Nandrajog has held that "the suit is based on invoices raised by the petitioner at the time of effecting the supplies pursuant to purchase orders for which all the terms and conditions like specification of goods, quantity and rate has been indicated and the terms of payment has also been indicated. Respondent not having inspected goods in question prior to delivery had a right to inspect case on delivery and report defects within a reasonable time of delivery if not rejected within reasonable time, mandate of section 42 of Act stipulates that respondent would be deemed to have accepted the goods."
Another judgment relied upon by the plaintiff is KLG Systel Ltd. Vs. Fujitsu ICIM Ltd., 92 (2001) Delhi Law Times 88 in which it has been observed on similar grounds as mentioned above that once the goods is ordered for certain description and the seller supplied the goods of different description, it is open to the buyer to reject them: But if he does not reject them but keeps the goods, even if he does so in ignorance of the fact that they are of a description different from that provided for by the contract he is debarred from rejecting the goods thereafter and can only 20 fall back upon a claim for damages as upon a breach of warranty.
Another judgment titled as M/s Upvan Steel Tubes Pvt. Ltd. Vs. M/s Tube Investments of India Ltd., decided on 18.05.2012 by Hon'ble High Court of Delhi relied upon by the plaintiff is laying down similar observations.
The other judgments relied upon by the parties, particularly defendant are also perused. The facts and circumstances of the case are peculiar and different in nature. Hence, they are not applicable in the present case.
6. It is, therefore, reflected from the above discussion that the defendant or its main contractor Voltas Limited has nowhere stated in clear words that goods in question were defective. It is also reflected from the record itself that the goods so supplied by the plaintiff have been used and consumed by the Voltas Ltd. Hence, the plaintiff can not be said to have suppressed any material facts as alleged by the defendant.
7. In these circumstances, I am of the opinion that after considering the mandate as laid down u/s 42 & 43 of Sale of Goods Act and the judgment relied upon by the plaintiff, the law is very much clear on this point. Hence, as the goods have admittedly been accepted and consumed by the defendant and his sub contractor Voltas Limited, therefore, he can not be asked to raise these plea subsequently. The only option lies with the defendant as observed in the above judgment relied upon by the plaintiff is seeking damage from him, if any. It is again 21 pertinent to mention here that till date the defendant has not reflected any of the quantifiable loss suffered by him. In these circumstances, as already stated above, the plaintiff can not be said to be suppressing any material facts and in all the grounds so taken by the defendant in his leave to defend application, is not tenable and justifiable.
One judgment has been relied upon by both the parties i.e. Mechelec Engineers & Manufacturers Vs. Basic equipment Corpn. AIR 1977 SC 577 which has laid down five guiding principles which are to be considered while deciding the leave to defend application which are discussed here as under:
"(a) If the defendant satisfies the Court that he has a good defence to the claim on merits, the defendant is entitled to unconditional leave to defend.
(b) If the defendant raises a triable issue indicating that he has a fair or bonafide or reasonable defence, although not a possibly good defence, 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, if the affidavit discloses that at the trial he may be able to establish a defence to the plaintiff's claim, the court may impose conditions at hte time of granting leave to defendthe conditions being as to time of trial or mode of trial but not as to payment into court or furnishing security.
(d) If the defendant has not defence or if the defence is sham or illusory or practically moonshine, the defendant is not entitled to leave to defend. 22
(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine, the court may show mercy to the defendant by enabling him to try to prove a defence but at the same time protect the plaintiff imposing the condition that the amount claimed should be paid into court or otherwise secured."
8. After considering the grounds so taken by the defendant and the above discussion, it is reflected that all the grounds taken by the defendants are false and not based on any documents in support thereof. Hence they are sham and moonshine. Hence, the leave to defend application is liable to be dismissed.
9. Accordingly, the leave to defend application is dismissed without cost.
Announced and dictated (Prashant Kumar) in the open court today ADJ04(NW)/Rohini Courts i.e. 24.04.2014. Delhi/24.04.2014 23 CS No. 449/14 24.04.2014 Present: None.
Arguments on the leave to defend application have already been heard. Arguments on the condonation of delay in filing the leave to defend application are also heard simultaneously. This issue is taken up first.
Counsel for the plaintiff has objected filing of leave to defend application alleging that it is filed beyond the prescribed period of limitation. Considering the facts and circumstances and the grounds so taken in the application, I am of the considered opinion that the defendant has taken reasonable ground seeking condonation of delay. Hence, in the interest of justice, the delay in filing the leave to defend application is condoned.
Arguments have already been heard. Record perused thoroughly. Vide separate order announced and dictated in the open court today, leave to defend application moved on behalf of the defendant is dismissed without cost.
In the light of facts and circumstances, as the leave to defend application has been dismissed, the suit filed by the plaintiff is filed u/o 37 CPC. Hence, after dismissal of leave to defend application, the plaintiff is entitled for decree. Hence, the plaintiff is entitled for recovery of suit amount i.e. Rs. 5,55,231.43 alongwith interest (simple interest) @ 12% per annum from the date of filing of the suit till its realization alongwith cost of the suit. Decree sheet be prepared with cost.
Case file be consigned to record room after completion of all necessary formality.
(Prashant Kumar) 24 ADJ04(NW)/Rohini Courts Delhi/24.04.2014 25 IN THE COURT OF SH. PRASHANT KUMAR , AD4 (NORTHWEST) ROOM NO.212, ROHINI COURTS, DELHI.
DECREE SHEET IN SUIT FOR RECOVERY U/s 37 CPC CS No./ 449/14 M/s Paramount Intercontinental Pvt. Ltd.
A duly registered company through its authorized representatives Sh. Manjul Gupta.
Having its registered office at 56B, BlockED, Madhuban Chowk, Pitam Pura, Delhi. Plaintiff V/s Mr. Sanjeev Parvatkar Proprietor of M/s Satyam Enterprises, 02, Trimurti, 105/A, NG Acharya Marg, Chembur, Mumbai. Defendants Claim for : Suit for Recovery of Rs. 5,55,231.43/ .
Plaint presented on 15.10.2011.
This suit coming on this 24/04/2014 for final disposal before me in the presence of the plaintiff as well as defendant. Leave to defend is dismissed.
The suit is decreed in favour of plaintiff. Therefore, plaintiff is entitled to recovery of Rs. 5,55,231.43/ alongwith simple interest @ 12% per annum from the date of filling of the suit till its realization . Cost of the suit is also awarded, along with cost.
COST OF SUIT
PLAINTIFF DEFENDANT
S.No Particulars Amt (Rs.) S.No Particulars Amt.
1 Stamp for plaint 8195/ 1 Stamp for plaint Nil
2 Stamp for power Nil 2 Stamp for power Nil
3 Process Fee Nil 3 Process Fee Nil
4 Miscellaneous Nil 4 Miscellaneous Nil
TOTAL Rs.8195/ TOTAL Nil
Given under my hand and the seal of this Court on this 24/04/ 2014. 26
SEAL (PRASHANT KUMAR)
ADJ4 (N/W) Rohini Courts