Delhi District Court
Suit No: 7/12 vs M/S. Samrat Bicycle on 13 February, 2013
Suit no: 7/12
13.02.2013
Order on leave application of the defendant.
1.Plaintiff, engaged in the business of airfreight and shipment of cargo to various overseas destinations has filed this suit for recovery of outstanding amounts of invoices raised on defendant in respect of various consignments shipped to the desired destinations, as per service contract dated 16.05.2005 executed by the parties. Of five invoices the recoverable amount is Rs. 3,76,160/ on which interest @ 24% p.a. till the date of filing of suit from due dates has accrued to Rs. 60,955/ since the claim is based on written contract and the invoices raised pursuant thereto, in respect whereof no query has been raised by the defendants, the suit has been preferred under summary procedure.
2. In the leave application and supporting detailed affidavit defendant has stated that wrong procedure has been invoked by the plaintiff as the written contract has not bee filed with malafide intention. In the business of airfreight and cargo shipment, the customer is liable to pay only on delivery of consignment as per schedule and the terms of agreement. The plaintiff having lost some of the consignments worth Rs. 29568.60; overcharged a sum of Rs. 45,921/ in the invoices and failed to deliver the import shipments of Rs. 9,48,972/ is not entitled to recover the balance payment of invoices from the defendant . Due to the deficiency in service rendered by the plaintiff, the defendant has suffered huge losses compelling it to stop payment of the invoices. The correspondence between the parties reflect that plaintiff has :2: acknowledged the mistakes, therefore, the defendant is entitled to contest the suit with grant of unconditional leave.
3. In reply the plaintiff has termed the averment of defendant to be an irrelevant concocted story. The invoices and details thereof have actually been admitted, therefore, the application is without any substance. Since execution of contract dated 16.05.2005 is not denied the defendant cannot reserve any right to take additional grounds in his affidavit. No plausible explanation for withholding the claim of plaintiff has been shown nor the alleged defence substantiated with documentary proof. The invoices raised on the defendant clearly stipulate that any query in respect of its contents can be raised within 7 days of receipt. No complaint however was received in this duration. The defendant rather made part payment of invoices. The invoices, therefore, remaining undisputed needed to be cleared by the defendant leaving no scope for grant of leave. The allegations of deficiency in service are utterly vague and unsubstantiated. The airway bills referred to by the defendant doe not form subject matter of present suit. The defence in the application, thus is frivolous and concocted in desperate attempt to mislead the court. It is therefore, urged that the application of defendant (wrongly written as the plaintiff) be dismissed and suit of the plaintiff decreed.
4. I have heard arguments on behalf of the parties and perused the file. Plaintiff has relied upon M/s. Punjab Pen House Vs. M/s. Samrat Bicycle Ltd. AIR 1992 Delhi 1 in support of the plea that when goods were supplied against bills on terms and conditions agreed between the parties then it amounted to contract between the parties sufficient to cover the suit U/o 37 :3: Clause 2(b) CPC. This ratio was followed in Beacon Electronics Vs. M/s. Sylavania & Laxman Ltd: 1998 III AD (Delhi) 141. Further reliance has been placed on M/s. Delhi Book Store Vs. K.S. Subramaniam 2006 I AD (Delhi) 557 to the effect that stand taken in leave application is not only in contradiction to his own documents but apparently afterthought and lacked bonafide. Holding defence to be sham, the application was dismissed. In Indian Bank Vs. M/s. Cheese Wafers (India) Pvt. Ltd. 76 (1998) DLT 892 it was held that where there is unambiguous and unequivocal acknowledgment of liability by the defendant to specific averments of plaintiff, the claim that no dues are payable in sham and devoid of any force. It was observed in G.P. Bhatia Vs. Dee Kay Ind. & ors, 199 (2012) DLT 721 that leave to defend should not be granted in a routine manner. Where the stand of defendant is contrary to documents or is imaginative and superfluous, the order of granting leave would be illegal. Lastly the dictum in Dentsche Ratio Gmbh. Vs. Mohan Murti 52 (1993) DLT 288 is cited to the effect that leave to defend cannot be granted on the basis of counter claim or causes of action different from the course of dealing or cause of action set up in the plaint.
5. Before contending in the reply to leave application that suit is based upon invoices generated by the plaintiff and acknowledged by defendant, it was claimed in para 13 of plaint that the suit is based on a written contract dated 16.05.2005 entered into between the parties and invoices raised pursuant thereto. The variance is apparently necessitated by the objections of defendant that the agreement dated 16.05.2005 or its copy has not been filed by the :4: plaintiff with malafide intention. Significantly even the allegations of malafide did not compel the plaintiff to retrieve the contract and produce it on court record. Manifestly the plaintiff has been trying to keep some of the terms settled between the parties but no suitable to them in this case, out of sight of the court. There is absolutely no doubt that a summary suit is maintainable on the edifice of invoices containing terms of deal and sufficient details of transactions but for such assessment the background should not reflect material shift in the stand of a party.
6. Defendant has filed copies of documents including exchange of correspondence, emails between the parties to the effect that it has taken up the issues of previous non delivery of consignment deficiency in service and difference in rates with the plaintiff which are not claimed to have been redressed. It cannot be argued that such averments are in the nature of counter claim or based on distinct cause of action incapable of resisting the present claim of plaintiff because those assertions of defendant are based on transactions under same contract that had taken place sometime earlier than the transactions forming subject matter of suit but must be reflected in our statement of account.
7. The defendant has raised the issue of non delivery/delayed delivery of consignments etc. with plaintiff much prior to raising of AWB forming part of the suit. It therefore, cannot be observed that purported defence has been concocted by way of the afterthought. It is axiomatic that the plaintiff while conducting itself under the settled terms of a contract has neither settled the seemingly genuine claims of defendant in respect of previous dealings in the :5: chain of transactions but is trying to enforce the payment of subsequent dealings. Even if there does not seem dispute about the execution of the cargo consignments pointed out in the plaint, the claim based on piecemeal or selective transactions cannot be said to have been unequivocally made out when there are simmering larger claims of the opposite party in the backyard. It is perceived that on the defendant being provided opportunity to defend the suit, there is quite a possibility that the plaintiff will be nonsuited.
8. In view of all these reasons it i felt that the defendant deserves to defend the suit without any preconditions. The application of defendant is accordingly allowed.
9. Fixed 18.03.2013 for filing written statement.
Announced in the open court
on 13th February, 2013 (Sunil Kr. Aggarwal)
Addl. District Judge (C)10
Delhi