Delhi District Court
M/S Zainson Exports vs M/S Australian Stock Saddle Co on 4 November, 2015
IN THE COURT OF SH. BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02 (SOUTHEAST),
SAKET COURTS, NEW DELHI
Civil Suit No. 161/13
M/s Zainson Exports
...... Plaintiff
Vs.
M/s Australian Stock Saddle Co.
...... Defendant
O R D E R:
1. Vide this order I shall dispose of leave to defend application moved by the defendant.
2. Brief facts necessary for disposal of the application are that the plaintiff has filed the present suit under order 37 CPC for recovery of Rs. 5,50,000/ against the defendant. It is stated that plaintiff is a proprietorship firm and deals in the business of garment. The plaintiff had been supplying Oil Skin Coates to defendant in terms of specific orders placed by the defendant from time to time for last many years and defendant had been making payments towards the said supplies. The defendant had placed a purchase order through email upon the plaintiff for supply of Oil Skin coats and value of said order was USD 12558.75. The plaintiff carried out the work as per the purchase order within stipulated time to the satisfaction of the defendant and sent the shipment CS No. 161/13 M/s Zainson Exports Vs. M/s Australian Stock Saddle Co. Page 1 of 6 containing 37 boxes and raised an invoice bearing No. ZE/001/2010 dated 07.09.2010 for value of USD 12558.75 which was sent from New Delhi to United States vide LEO No. 1/22 dated 01.10.2010. The defendant had also cleared the said shipment on 16.12.2010 and also confirmed the same vide email dated 18.12.2010. It is stated that there was a running account being maintained between the parties and part payment of USD 3600 was made by the defendant. After adjusting the total payment made by the defendant against the invoices raised by the plaintiff from time to time, a sum of USD 8958.75 is due and payable by the defendant to the plaintiff. The defendant vide email dated 18.02.2011 also admitted its liability to pay the said amount to the plaintiff and assured the plaintiff that said outstanding amount would be paid to the plaintiff. However, despite repeated request through email, the defendant failed to pay the outstanding amount. The plaintiff sent a legal notice dated 23.12.2011 upon the defendant calling upon the defendant for payment alongwith interest which was duly served on the defendant, but despite that the defendant did not comply the said legal notice. Hence, the plaintiff has filed the present suit seeking recovery of USD 8958.75 i.e. Rs. 5,50,000/ along with interest.
3. Summons of suit under order 37 CPC were served upon the defendant. The defendant put in appearance. Thereafter, the plaintiff served the summons for judgment on the defendant. The defendant after service of summons for judgment sent a letter dated 24.11.2014 CS No. 161/13 M/s Zainson Exports Vs. M/s Australian Stock Saddle Co. Page 2 of 6 repudiating the liability claimed by the plaintiff. The said letter was treated as leave to defend application by the Ld. Predecessor vide order dated 18.12.2014. It is contended in the said letter that no liability is outstanding as the payment has been made in full and this fact has also been admitted by the plaintiff vide email dated 25.05.2011.
4. The plaintiff has filed rejoinder/reply to the letter contending that the print out of the email sent by the defendant is forged and fabricated as no such email has been sent by the plaintiff. It is stated that plaintiff raised invoice No. ZE/001/2010 for total FOB value of USD 12558.78 and in term of FOB (Freight on Buyer), the importer i.e. the defendant was to bear the expenses of freight of sending the shipment of the exporter i.e. the plaintiff and payment was to be released by the defendant after sending of shipment by the plaintiff. The defendant sent payment of about US $ 5023 i.e. Rs. 2,28,494/ on 14.09.2010 and US $2000 i.e. Rs. 88,680/ on 18.10.2010 which were duly reflected in the bank statement of the plaintiff. It is stated that these payments have no concern with the outstanding amount of Invoice No. No. ZE/001/2010 for total FOB value of USD 12558.78 as the shipment has still not been received by the defendant. It is stated that the defendant sent further payment of US $ 1600/ i.e. Rs. 90,185/ on 10.12.2010 and US $1600/ i.e. Rs. 71,448/ on 10.05.2011 which were received by the plaintiff against the outstanding amount of Invoice No. ZE/001/2010 for total FOB value of USD 12558.78, but thereafter no further payment has been CS No. 161/13 M/s Zainson Exports Vs. M/s Australian Stock Saddle Co. Page 3 of 6 sent by the defendant. Hence, the plaintiff has prayed for decreeing the suit.
5. I have heard the Ld. Counsel for the plaintiff and perused the record carefully.
6. In the letter sent by the defendant dated 24.11.2014 which has been treated as leave to defend application, the defendant has taken a plea that nothing is due and outstanding against it and the payment with respect to the invoice has been made in full and this fact has also been admitted by the plaintiff vide email dated 25.05.2011. The email dated 25.05.2011 sent by the plaintiff to the defendant is also annexed with the letter.
7. The plaintiff in the reply stated that payments sent by the defendant of Rs. 2,28,494/ on 14.09.2010 and Rs. 88,680/ on 18.10.2010 have no concern with the outstanding amount of Invoice No. ZE/001/2010 as at that time shipment was not received by the defendant and as per the terms of the invoice, payment was to be made by the defendant after receiving the shipment. The plaintiff has further stated the defendant sent only two payments of Rs. 90,185/ on 10.12.2010 and Rs. 71,448/ on 10.05.2011 against the outstanding amount of Invoice No. ZE/001/2010 and thereafter no payment has been sent by the defendant towards the outstanding amount of the invoice and hence payment has not been received in full.
8. The case of the plaintiff is based on the premises that it had CS No. 161/13 M/s Zainson Exports Vs. M/s Australian Stock Saddle Co. Page 4 of 6 supplied the Oil Skin Coates to the defendant pursuant to the purchase order placed by the defendant and raised an Invoice bearing No. ZE/001/2010 dated 07.09.2010 in a FOB value of USD 12558.78 and against the said invoice, the defendant sent part payment of USD 3600 and no further payment was received and as such an outstanding amount of USD 8925.75 i.e Rs. 5,50,000/ is due against the defendant against the said invoice which has not been paid by the defendant till date. The plaintiff has placed on record only one Invoice bearing No. ZE/001/2010 dated 07.09.2010 and has not shown that how the earlier payment sent by the defendant of Rs. 2,28,494/ on 14.09.2010 and Rs. 88,680/ on 18.10.2010 has been adjusted. The plaintiff states that these payments have no concern with the outstanding amount of Invoice No. ZE/001/2010 dated 07.09.2010. However, in the absence of any other invoice raised against the defendant or previous transaction between the parties shown by the plaintiff, it cannot be said the aforesaid amount remitted by the defendant has been adjusted against the previous outstanding. Further, keeping in view the plea taken by the defendant that the invoice in question has been paid in full and nothing is due and outstanding against the defendant, it raises a triable issue as to whether the plaintiff has received the full payment against the invoice in question as contended by the defendant or that the suit amount against the said invoice is still outstanding payable by the defendant. CS No. 161/13 M/s Zainson Exports Vs. M/s Australian Stock Saddle Co. Page 5 of 6
9. It is also to be noted that the defendant has also annexed copy of email dated 25.05.2011 sent by the plaintiff to the defendant whereby it has been admitted by the plaintiff that there is no outstanding against the defendant in respect of invoice in question. The plaintiff in the reply has claimed that the said email has been forged and fabricated by the defendant and it is contended that no such email has been sent by the plaintiff to the defendant. Therefore, it is again a triable issue as to whether the email dated 25.05.2011 has been sent by the plaintiff to the defendant or same is forged and fabricated.
10. In view of aforesaid discussions, in my considered opinion, the defendant has raised aforesaid triable issues which require trial and matter cannot be decided at this stage. Hence, defendant is granted leave to contest the suit.
Announced in open Court (Balwant Rai Bansal)
on 4th November, 2015 Addl. District Judge 02 (SouthEast)
Saket Courts, New Delhi
CS No. 161/13
M/s Zainson Exports Vs. M/s Australian Stock Saddle Co. Page 6 of 6
CS No. 161/13
M/s Zainson Exports Vs. M/s Australian Stock Saddle Co. 04.11.2015 Present: Plaintiff in person with counsel.
None for the defendant.
Vide my separate order of even date, the leave to defend application moved by the defendant is allowed.
Let WS be filed within four weeks with advance copy to the counsel for plaintiff, to which replication may be filed.
Put up on 21.12.2015 for WS, replication, if any, admission/denial of documents and framing of issues.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 04.11.2015 CS No. 161/13 M/s Zainson Exports Vs. M/s Australian Stock Saddle Co. Page 7 of 6