Delhi District Court
Lsc Marketing India Pvt Ltd vs Amloh Aggarwal Stores on 19 September, 2024
CS (Comm.) No.394/2021: LSC Marketing India Pvt. Ltd. V/s M/s Amloh Aggarwal Stores:
DOD: 19.09.2024
IN THE COURT OF VINOD YADAV:
DISTRICT JUDGE (COMMERCIAL COURT)-02:
NORTH-WEST DISTRICT: ROHINI COURTS: NEW DELHI
CNR No.DLNW01-006059-2021
Civil Suit (Comm.) No.394/2021
In the matter of:
M/s LSC Marketing India Pvt. Limited,
A Pvt. Limited Company Registered
under the Companies Act, 2013
Through Its Director, Mr.Ashok Kumar Gupta,
Having Its Registered Office At:
A-1/115, Sector-7, Rohini, Delhi-110085.
Email: [email protected]
.....Plaintiff
(Through Shri Neeraj Goyal, Advocate)
Versus
M/s Amloh Aggarwal Stores,
A partnership Firm Through Its Partners,
Loha Bazaar, Mandi Gobindgarh,
Fatehgarh Sahib, Punjab-147301.
.....Defendant
(Through Shri Vishwanathan Iyer, Advocate)
Date of Institution of Suit : 13.08.2021
Date of Transfer to this Court : 17.08.2023
Date of hearing arguments on application U/o XIII-A CPC : 05.09.2024
Date of judgment : 19.09.2024
Decreed U/o XIII-A CPC: Page 1 of 20
CS (Comm.) No.394/2021: LSC Marketing India Pvt. Ltd. V/s M/s Amloh Aggarwal Stores:
DOD: 19.09.2024
COMMERCIAL SUIT FOR RECOVERY OF MONEY OF Rs.14,42,311/-
(Rupees Fourteen Lakhs Forty Two Thousand Three Hundred Eleven Only)
ALONGWITH PENDENTELITE AND FUTURE INTEREST @ 18% PER
ANNUM AGAINST THE DEFENDANT
19.09.2024
SUMMARY JUDGMENT
1. The plaintiff is a company registered under the Companies
Act, 2013 and deals in industrial bearings; whereas, defendant is a
partnership firm, duly represented by its partners, however, the names
thereof have not been placed on record.
2. It is stated that vide following two invoices, plaintiff supplied
industrial bearings to the defendant, with the stipulation that defendant
would make payment thereof within ninety days of the receipt of goods,
failing which the defendant would be liable to pay the invoice amount with
interest @18% per annum to the plaintiff. The details of the invoices are
as under:
S.No. Invoice No. & Date Amount (Rs.)
(i) 285, dated 20.08.2018 7,04,849.40
(ii) 444, dated 14.11.2018 9,05,118.99
Total Amount 16,09,968.39
3. Defendant only made part payment of Rs.6,36,000/- (Rupees
Six Lakhs Thirty Six Thousand Only) on two dates, received by the
plaintiff in its bank account, i.e a sum Rs.5,00,000/- was received by the
plaintiff on 11.12.2018 and a sum of Rs.1,36,000/- was received by the
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plaintiff on 26.03.2019. As such, a balance of Rs.9,73,968.39 (Rupees
Nine Lakhs Seventy Three Thousand Nine Hundred Sixty Eight And Paise
Thirty Nine Only) remains due as on 31.03.2019. The plaintiff sent legal
notice to the defendant on 18.03.2021. Despite receipt of the same, the
defendant did not make the balance payment of Rs.9,73,968.39 and as
such, the present suit was filed by the plaintiff for recovery of the aforesaid
balance amount alongwith interest @18% per annum.
4. (i) After getting served with the summons, written statement was
filed by the defendant, inter alia taking the preliminary objection about
lack of territorial jurisdiction with this Court in trying the present suit. As
preliminary submissions, it was submitted that the goods supplied by the
plaintiff to the defendant through aforesaid invoices were spurious and
defective. It was claimed that the defendant had categorically informed
one of the Directors of the plaintiff in this regard, who had assured the
defendant that the goods would be returned and invoices would be
cancelled. It was further stated that the invoices were highly inflated,
created by the plaintiff to get the benefit of tax reduction. The suit was
stated to be barred by limitation.
(ii) On merits, it was duly admitted that legal notice dated
18.03.2021 was received by the defendant and submitted that no reply
thereto was sent to the plaintiff.
5. (i) Plaintiff filed replication inter alia denying the averments
made in the written statement and reiterating the ones made by it in the
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plaint. It was specifically stated that there was no legal process of
cancellation of Tax Invoice for the purpose of any claim; if the defendant
had any objection about the supplied goods and wanted any claim, he was
supposed to inform the plaintiff and send his counter Tax-Invoice or Debit
Note alongwith so called spurious or defective goods. The fact that the
defendant had claimed full Input Tax Credit (ITC) on received goods and
never raised a written claim by way of Tax Invoice/Debit Note and never
returned the so called spurious or defective goods only suggests that the
averments were an afterthought.
(ii) As regards the averment with regard to one of the erstwhile
Directors of the plaintiff having been informed by the defendant, it was
stated that the plaintiff company was a separate legal entity then its
Directors. The Directors had not supplied the goods in their personal
capacity. The Directors may come and go, but the company has a
perpetual existence.
6. When the matter was ripe for trial, plaintiff filed an
application U/o XIII-A CPC (extant application).
7. On the other hand, defendant filed application U/o XI Rule 10
CPC, inter alia seeking to place on record the following three documents:
(a) Office copy of letter dated 16.11.2018, sent by defendant to
the erstwhile Director of plaintiff company namely Shri Chirag
Goyal;
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(b) Letter dated 10.12.2018, sent by Shri Chirag Goyal to
defendant for full and final settlement;
(c) Letter dated 26.02.2019, sent by plaintiff to defendant for
unpaid balance amount of Rs.1,36,000/-.
8. The said application was dismissed by this Court vide detailed
order dated 23.01.2024, the operative part whereof is re-produced
hereunder:
xxxxx
14. The first document is the balance-sheet of the
plaintiff company as on 31.03.2019, which is duly
signed by Director namely Shri Chirag Goyal,
clearly contemplating that a sum of Rs.9,73,968.39
P (suit amount in the present case) was due and
payable from the defendant.
15. The other document is the management
representation letter, written by the plaintiff to the
Financial Auditor, whereby the total outstanding
debt to the plaintiff from the various debtors has
been mentioned and this amount tallies with the
balance-sheet of the plaintiff company.
16. The other document is the "minutes of
meeting" of the Directors, whereby in Item No.5,
the resignation letters of previous Director(s)
namely Shri Chirag Goyal and Smt.Hemlata Goyal
were accepted.
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17. The last document is a police complaint dated
26.07.2023, failed by the plaintiff against the
defendant and their previous Director Shri Chirag
Goyal, wherein the allegations of conspiracy,
embezzlement and misrepresentation against both
of them have been made and the said complaint
is now stated to be pending consideration before the
learned MM, Delhi.
18. The timing of filing the present application is
very important. This application was filed on
28.04.2023, i.e after the resignation by Shri Chirag
Goyal from the plaintiff company. The three letters
which are sought to be placed on record do not have
any proof of despatch. A deeper scrutiny of these
documents show that the defendant was probably
hands in glove with Shri Chirag Goyal, as a
consequence whereof the aforesaid documents were
concocted/prepared later on.
19. The foundation for the aforesaid documents is
not there in the written statement, therefore, the
aforesaid documents cannot be taken into
consideration. The application accordingly stands
dismissed.
20. It is, however, observed that at a later stage
when some material in the form of tangible evidence
comes on record, then the defendant may revive its
prayer for consideration of the aforesaid documents
or any of the aforesaid documents in accordance
with law.
21. It is hereby clarified that anything stated
herein above shall not be construed as an expression
on the evidentiary value of documents filed by both
the parties.
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22. Now, list the matter for arguments on
application U/o XIII-A CPC filed by the plaintiff,
pleadings whereupon is stated to be complete on
26.03.2024.
xxxxx
9. Thereafter, the defendant filed an application U/o VI Rule 17
CPC to amend the written statement, so as to include the facts about the
aforesaid documents. The said application was dismissed by this Court
vide detailed order dated 09.07.2024, the operative part whereof is re-
produced hereunder:
xxxxx
10. In my considered opinion, if the law laid
down in the aforesaid judgment is considered in the
facts and circumstances of the present case, then it
would be apparent that net effect of the instant
application is to circumvent the order dated
23.01.2024, passed by this Court on an earlier
application filed U/o XI Rule 10 CPC by the
defendant, which is not permissible under the law.
The present application, even otherwise commits
violence to the Statement of Truth already filed
alongwith the written statement by the defendant as
per the provisions of Order VI Rule 15A CPC.
11. In this view of the matter, the application U/o
VI Rule 17 CPC being meritless stands dismissed.
xxxxx
10. I have heard arguments on application U/o XIII-A CPC. The
learned counsel for the plaintiff has very vehemently argued that the
defence taken by the defendant is moonshine and there is no real prospect
of successfully defending the claim in the plaint.
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11. With a view to appreciate the defence taken by defendant in
the matter, it will have to be seen that this Court has territorial jurisdiction
to entertain the present suit. The delivery of goods by the defendant at
Mandi Gobindgarh, Fatehgarh Sahib, Punjab-147301 was duly received in
August'2018 and November'2018 respectively. If the goods were
defective, as alleged, then it was incumbent upon the defendant to have
exercised his rights available U/s 41 and 42 of the Sales of Goods Act,
1930. For ready reference, the aforesaid sections are re-produced
hereunder:
xxxxx
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 contract.
(2) Unless otherwise agreed, when the seller
tenders delivery of goods to the buyer, he is bound,
on request, to afford the buyer a reasonable
opportunity of examining the goods for the purpose
of ascertaining whether they are in conformity with
the contract.
42. Acceptance.--
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
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the goods without intimating to the seller that he has
rejected them.
xxxxx
12. As per the mandate of Section 41 of the Sales of Goods Act,
1930, the defendant not having inspected the goods in question prior to
delivery had a right to inspect the same on delivery and report defects, if
any, therein within a reasonable time of delivery. Not rejecting the goods
within reasonable time, the mandate of Section 42 of Sales of Goods Act
stipulates that the defendant would be deemed to have accepted the goods.
13. (i) Indisputably, the goods under first invoice were received by
the defendant in October' 2018 and under second Invoice in November'
2018, but till date there is nothing on record to even remotely suggest that
the goods were defective or the invoices were inflated, as alleged in the
written statement. It is further noticed that on 18.03.2021 legal notice
was sent by the plaintiff inter alia demanding the balance payment. As per
the averments made in the written statement, the receipt of said legal
notice has been admitted, but no reply thereto was sent. The law with
regard to non-reply of legal notice is fairly settled. The Hon'ble High
Court of Delhi in case reported as, "1980 RLR (Note 44)", titled as, "Kalu
Ram V/s Sita Ram" has been pleased to hold that adverse presumption
will be drawn if the legal notice is not replied to. The relevant portion of
the said judgment reads as under:
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xxxxx
"It was held that the plaintiff before filing suit had
served defendant with a notice making serious
allegations that defendant was a trespasser and that
his possession was illegal. Defendant did not refute
these charges and remained silent by ignoring to
reply the notice. Silence showed that he had nothing
to deny and hence it was a fit case for raising
adverse presumption. Besides the defendant also
failed to prove the two contentions that he had
raised. There is nothing on record to support the
pleas that he had taken. His appeal is without force.
The appeal of the plaintiff is supported by the
provisions of O. 20 R.12, CPC and trial court should
have ordered mesne profits till the delivery of
possession. Plaintiff is held entitled to same."
xxxxx
(Emphasis supplied)
(ii) Furthermore, the Hon'ble High Court of Delhi in case
reported as, "98 (2002) DLT 573", titled as, "Metropolis Travels & Resorts
(I) Pvt. Ltd. V/s Sumit Kalra & Ors.", (DOD: 07.05.2002) has been
pleased to lay down as under:
xxxxx
13. There is another aspect of the matter which
negates the argument of the respondent and that is
that the appellant served a legal notice on the respondent vide Ex. PW-1/3. No reply the same was given by the respondent. But inspite of the same no adverse inference was drawn against the respondent. This Court in the case of Kalu Ram v. Sita Ram 1980 RLR (Note) 44 observed that service of notice having been admitted without reservation and that having not been replied in that eventuality adverse inference should be drawn because he kept quite Decreed U/o XIII-A CPC: Page 10 of 20 CS (Comm.) No.394/2021: LSC Marketing India Pvt. Ltd. V/s M/s Amloh Aggarwal Stores:
DOD: 19.09.2024 over the notice and did not send any reply. Observations of Kalu Ram's case (Supra) apply on all force to the facts of this case. In the case in hand also despite receipt of notice respondent did not care to reply nor refuted the averments of demand of the amount on the basis of the invoices/bills in question. But the learned Trial Court failed to draw inference against the respondent.
xxxxx
(iii) Even recently on the similar aspect in case reported as, "RFA (OS) No.93/2010", titled as, "Krishan Kumar Aggarwal V/s Life Insurance Corporation" (DOD: 29.08.2014), the Hon'ble High Court of Delhi has been pleased to lay down as under:
xxxxx
65) No explanation has been rendered by the respondent as to why letter dated 23rd August, 2008 and the legal notice sent by the appellant were not repudiated or even replied. Despite due receipt, the respondent did not bother to even send any response to the letter dated 23rd August, 2008 or the legal notice, the contents whereof would be deemed to have been admitted. In the judicial precedents reported in Rakesh Kumar Vs. Hindustan Everest Tool Ltd. (1988) 2 SCC 165 & Hiralal Kapur Vs. Prabhu Chaudhary (1988) 2 SCC 172 it was held by the Supreme Court that a categorical assertion by the landlord in a legal notice if not replied to and controverted, can be treated as an admission by a tenant.
66) In a Division Bench proceedings of this court reported in Metropolis Travels & Resorts Vs. Sumit Kalra 98 (2002) DLT 573 (DB), no adverse inference was drawn against the respondent for Decreed U/o XIII-A CPC: Page 11 of 20 CS (Comm.) No.394/2021: LSC Marketing India Pvt. Ltd. V/s M/s Amloh Aggarwal Stores:
DOD: 19.09.2024 failure to reply the legal notice on consideration of the facts and circumstances of the case. Reference was made to proceedings reported in Kalu Ram Vs. Sita Ram 1980 RLR (note) 44 wherein it had been observed that service of notice being admitted without reservation and that having not been replied, in that eventuality adverse inference should be drawn.
xxxxx
14. The plaintiff had received part-payment from the defendant in its bank account at North-West Delhi, therefore, on the basis of common law principle "debtor has to seek the creditor", as expounded in below mentioned judgments, this Court has territorial jurisdiction to try the present suit.
(i) The Hon'ble High Court of Delhi in case reported as, "RFA (Comm.) No.6/2023", titled as, "Rukhmani Keshwani Trading As Vishwas Agarbatti Store V/s Naresh Jeswani" (DOO: 24.05.2023), whereby the Hon'ble High Court while dealing with an identical issue and relying upon the observations made in "Chandra Kishore Chaurasia V/s R.A Perfumery Works Private Limited" [2022 SCC Online Delhi 3529] and "Sonal Kanodia Vs Ram Gupta & Anr." [2023 SCC Online Del 1132] has been pleased to observe in paragraphs No.4 and 5 thereof as under:
xxxxx
4. Dealing with an identical issue, the Division Bench of the Court in Chandra Kishore Chaurasia v. R A Perfumery Works Private Ltd., [2022 SCC OnLine Del 3529], had made the following pertinent observations: -Decreed U/o XIII-A CPC: Page 12 of 20
CS (Comm.) No.394/2021: LSC Marketing India Pvt. Ltd. V/s M/s Amloh Aggarwal Stores:
DOD: 19.09.2024 "8. It is trite law that an objection regarding territorial jurisdiction of a court, raised by way of an application under Order VII Rule 10 of the CPC, is to be decided on a demurrer, that is, by accepting all statements made in the plaint to be true.
Thus, the examination for the purpose of an application under Order VII Rule 10 of the CPC is limited to the averments made in the plaint and the documents filed by the plaintiff.
9. In D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267, the Supreme Court observed as under:
"...It is well settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the court has to find out whether those averments disclose a cause of action or a triable issue as such. The court cannot probe into the facts on the basis of the controversy raised in the counter."
10. In a later decision in Liverpool & London S.P. & I Association Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512, the Supreme Court observed as under:
"139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the Decreed U/o XIII-A CPC: Page 13 of 20 CS (Comm.) No.394/2021: LSC Marketing India Pvt. Ltd. V/s M/s Amloh Aggarwal Stores:
DOD: 19.09.2024 averments made in the plaint are taken to be correct in its entirety, a decree would be passed."
xxx xxx xxx
12. The aforesaid view has been constantly followed by this Court as well. In RSPL Limited v. Mukesh Sharma, 2016 SCC OnLine Del 4285, a Coordinate Bench of this Court held as under:
"11. It must be stated that it is a settled proposition of law that the objection to territorial jurisdiction in an application under Order 7 Rule 10 CPC is by way of a demurrer. This means that the objection to territorial jurisdiction has to be construed after taking all the averments in the plaint to be correct. In Exphar SA v. Eupharma Laboratories Limited, (2004) 3 SCC 688, the Supreme Court observed that when an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts, as pleaded by the initiator of the impugned procedure, are true. The Supreme Court further observed that the objection as to jurisdiction in order to succeed must demonstrate that granted those facts, the Court does not have jurisdiction as a matter of law. It is also a settled proposition of law that while considering a plaint from the standpoint of Order 7 Rule 10 CPC, it is only the plaint and the documents filed along with it, that need to be seen. The written statement is not to be looked into at all."
13. In Allied Blenders and Distillers Pvt. Ltd. v. Prag Distillery Pvt. Ltd., 2017 SCC OnLine Del 6422, a Single Judge of this Decreed U/o XIII-A CPC: Page 14 of 20 CS (Comm.) No.394/2021: LSC Marketing India Pvt. Ltd. V/s M/s Amloh Aggarwal Stores:
DOD: 19.09.2024 Court had allowed the application under Order VII Rule 10 of the CPC. This was because on a prima facie evaluation of the plaint, the Court was of the view that the plaint did not disclose that any cause of action had arisen within the territorial jurisdiction of this Court. Although the plaintiff pleaded that it apprehended the defendant launching its products under the infringing trade mark within the territorial jurisdiction of this Court, this Court found that there was no material to substantiate any such apprehension. The plaint also disclosed that the defendant was selling its products in the State of Andhra Pradesh and the plaintiff was essentially aggrieved by the same. However, the said decision was set aside by the Division Bench of this Court in Allied Blenders and Distillers Pvt. Ltd. v. Prag Distillery Pvt. Ltd., 2017 SCC OnLine Del 7225 on the principal that the averments made in the plaint were required to be accepted as correct for the purpose of deciding an application under Order VII Rule 10 of the CPC. The plaintiff had averred that it apprehended the respondent launching its products in Delhi and that it had filed the suit as a quiatimet action. If the said averments were accepted as correct - which the court was required to do for the purposes of deciding an application under Order VII Rule 10 CPC - this Court would have jurisdiction to entertain the suit.
xxx xxx xxx
20. At the stage of considering an application under Order VII Rule 10 of the CPC, the court is not required to examine the merits of the averments made and to Decreed U/o XIII-A CPC: Page 15 of 20 CS (Comm.) No.394/2021: LSC Marketing India Pvt. Ltd. V/s M/s Amloh Aggarwal Stores:
DOD: 19.09.2024 evaluate whether the plaintiff would be able to prove or establish the same. As noted above, for the purpose of an application under Order VII Rule 10 of the CPC, the averments made in the plaint are required to be considered as correct."
5. The decision in Chandra Kishore Chaurasia and the principles laid down therein were again reiterated and reaffirmed in a recent decision rendered by another Division Bench in Sonal Kanodia v. Ram Gupta and Another, [2023 SCC OnLine Del 1132].
relevant extracts of that decision are reproduced hereinbelow: -
"6. Having heard learned counsel for the Appellant, this Court is of the view that it is settled law that an application under Order VII Rule(s) 10 and 11 CPC is to be decided on a demurrer accepting all statements made in the plaint to be true (See : Chandra Kishore Chaurasia v. RA Perfumery Works Pvt. Ltd., 2022 SCC OnLine Del 3529). At the stage of considering an application under Order VII Rule(s) 10 and 11 CPC, the Court is not required to examine the merits of the averments made and to evaluate whether the Plaintiff would be able to prove or establish the same. For the purpose of an application under Order VII Rule(s) 10 and 11 CPC, the averments made in the plaint are required to be considered as correct.
7. Consequently, this Court is of the view that if the statements made in the plaint are accepted to be correct, then the Court would have the jurisdiction to entertain the present suit. Accordingly, the present appeal being bereft of merit is dismissed"
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15. Before filing the instant suit, plaintiff had invoked pre-
litigation mediation process at Delhi Legal Services Authority, North-West District, Delhi. On 09.04.2021, the defendant was admittedly served through e.mails, but did not chose to appear therein and as such, Non- Starter Report on 19.07.2021 was issued. It is further evident on record that no Debit Note or counter-invoice of delivery of defective goods was ever issued by the defendant.
16. It is further evident that in the balance-sheet of plaintiff, as on 31.03.2019, name of defendant is shown in the list of debtors with amount of Rs.9,73,968.39 pending against it. The balance-sheet has been duly signed by all the Directors, including Shri Chirag Goyal, who subsequently was expelled as Director from the Company and admittedly FIR against him alongwith other conspirators has been filed by the plaintiff , which is pending investigation.
17. Per contra, learned counsel for the defendant has very vehemently argued that defendant was not permitted to place on record the relevant documents and was not even permitted to amend written statement to include the documents which were not permitted to be taken on record vide orders dated 23.01.2024 and 09.07.2024 respectively. It is a matter of record that no appeal against the aforesaid orders was filed by the defendant and as such, the said orders have attained finality.
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18. As regards the limitation period to file the instant suit, it is noted that second/last part-payment of Rs.1,36,000/- was received by the plaintiff from the defendant on 26.03.2019. As such, the right of the plaintiff to claim the remaining/balance payment from the defendant accrued w.e.f 26.03.2019 and the instant suit having been filed on 13.08.2021 is within the period of limitation.
19. After considering the facts and circumstances of the case in totality, I am of the considered opinion that there is no real prospect of defendant succeeding in proving its defence because of the aforesaid discussion. No useful purpose would be served by allowing the proceedings to meander mindlessly in Court and to clog the justice delivery system. Therefore, in my opinion, present is a fit case where the Summary Judgment in terms of Order XIII-A of the CPC, as applicable to commercial disputes of a specified value, deserves to be passed in favour of the plaintiff and against the defendant. Reference in this regard may be made to the judgment in case reported as, "2019 SCC OnLine Del 10764", titled as, "Su-Kam Power Systems Ltd. V/s Kunwer Sachdev", wherein the Hon' ble High Court of Delhi has been pleased to observe as under:
xxxxx "90. To reiterate, the intent behind incorporating the summary judgment procedure in the Commercial Court Act, 2015 is to ensure disposal of commercial disputes in a time-bound manner. In fact, the applicability of Order XIIIA, CPC to commercial disputes, demonstrates that the trial is no longer the default procedure/norm.Decreed U/o XIII-A CPC: Page 18 of 20
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91. Rule 3 of Order XIIIA, CPC, as applicable to commercial disputes, empowers the Court to grant a summary judgement against the defendant where the Court considers that the defendant has no real prospects of successfully defending the claim and there is no other compelling reason why the claim should not be disposed of before recording of oral evidence. The expression "real" directs the Court to examine whether there is a "realistic" as opposed to "fanciful" prospects of success. This Court is of the view that the expression "no genuine issue requiring a trial" in Ontario Rules of Civil Procedure and "no other compelling reason.....for trial" in Commercial Courts Act can be read mutatis mutandis.
Consequently, Order XIIIA, CPC would be attracted if the Court, while hearing such an application, can make the necessary finding of fact, apply the law to the facts and the same is a proportionate, more expeditious and less expensive means of achieving a fair and just result.
92. Accordingly, unlike ordinary suits, Courts need not hold trial in commercial suits, even if there are disputed questions of fact as held by the Canadian Supreme Court in Robert Hryniak (supra), in the event, the Court comes to the conclusion that the defendant lacks a real prospect of successfully defending the claim."
xxxxx
20. In view of the above discussion, suit of the plaintiff is decreed under Order XIII-A CPC as under:
(i) A decree in the sum of Rs.9,73,968.39 (Rupees Nine Lakhs Seventy Three Thousand Nine Hundred Sixty Eight And Paise Thirty Nine Decreed U/o XIII-A CPC: Page 19 of 20 CS (Comm.) No.394/2021: LSC Marketing India Pvt. Ltd. V/s M/s Amloh Aggarwal Stores:
DOD: 19.09.2024 Only) alongwith interest @ 12% per annum w.e.f 01.04.2019 till realization thereof is passed in favour of plaintiff and against the defendant and his all the partners jointly and severally.
(ii) Plaintiff is also entitled to costs and pleader's fee quantified as Rs.22,000/-.
21. Decree Sheet be drawn accordingly.
22. File be consigned to Record Room after completion of necessary formalities.
VINOD Digitally signed by VINOD YADAV YADAV Date: 2024.09.19 16:09:55 +0530 Dictated & Announced in the (Vinod Yadav) open Court on 19.09.2024 District Judge (Commercial Court)-02 North-West/Rohini Courts Decreed U/o XIII-A CPC: Page 20 of 20