Delhi District Court
Central vs M/S. Jaishree Polyplast Pvt. Ltd on 7 October, 2013
IN THE COURT OF MS. SHAMA GUPTA: CIVIL JUDGE : 16
CENTRAL
TIS HAZARI COURTS : DELHI
Suit No. 114/12
M/s. SCJ Plastic Ltd.
.......... Plaintiff
VERSUS
M/s. Jaishree Polyplast Pvt. Ltd.
.........Defendant
Present: None.
O R D E R
1. Vide this order, I shall dispose off the present application under order XXXVII Rule 3 (5) CPC r/w section 151 CPC filed by the defendant seeking unconditional leave to defend and the grounds pleaded by the defendant seeking unconditional leave to defend are as follows: a. The suit is based on running statement of account maintained by the plaintiff itself, therefore, suit is not maintainable U/o XXXVII CPC.
b. The goods were supplied and delivered by the plaintiff to the defendant at his work place/industrial plant at Bhiwadi, Rajasthan on credit basis. The entire transaction has taken place at Bhiwadi, and Suit no. 114/12 M/s. SCJ Plastic Ltd. Vs. M/s. Jaishree Polyplast Pvt. Ltd. 1/10 even the payment by the defendant to the plaintiff was made at Bhiwadi, thus this court has no territorial jurisdiction to entertain the present suit.
c. No amount as shown in the statement of account as well as interest is payable by the defendant and there was no agreement between the parties for payment of any interest.
d. The present suit has not been signed, verified or filed by duly authorized person and Deepak Kumar was never AR of the plaintiff company.
e. Goods supplied vide invoice no. 2528 and 2532 dated 05.09.2011 were not as per specifications and same was admitted by the Marketing Executive of the plaintiff.
f. Goods vide bill No. 3250 were sent by the plaintiff to the defendant on trial basis and there was no actual sale.
g. The defendant has made excess payment of Rs. 37,870/ to the plaintiff.
2. Reply to the present application was filed by the plaintiff denying that the defendant is able to raise any triable issue.
Suit no. 114/12 M/s. SCJ Plastic Ltd. Vs. M/s. Jaishree Polyplast Pvt. Ltd. 2/10
3. It is stated that the plaintiff had based his suit on the basis of detailed statement of account according to which the balance payment of Rs. 1,96,387/ is required to be paid by the defendant vide invoice no. 3253 dated 20.10.2011 for Rs. 2,21,341/ and since the suit of the plaintiff is based on invoice which is written agreement, therefore the suit is maintainable under order XXXVII CPC.
4. With regard to the objection as to the territorial jurisdiction, it is averred that since goods were delivered to the defendant from Delhi and since the registered office of the defendant is at Civil Lines, Delhi, therefore this court has territorial jurisdiction to entertain the present suit.
5. Further, on the objection as to rate of interest, it is pleaded that the invoice contains stipulation as to rate of interest, thus the plaintiff had denied that defendant is entitled for unconditional leave to defend.
6. It is stated that the present suit has been signed, verified and filed by duly authorized person of the plaintiff company vide resolution passed by Board of Directors of plaintiff company, extract of which was duly signed by Chairman cum MD of the plaintiff company.
Suit no. 114/12 M/s. SCJ Plastic Ltd. Vs. M/s. Jaishree Polyplast Pvt. Ltd. 3/10
7. It is further stated that the defendant has used the goods so supplied by the plaintiff company after inspecting the same and if any material was not used, the same was returned and the plaintiff had issued credit note bearing no. 607 dated 22.10.2011 for 3,06,016/ in respect of goods supplied vide invoice No. 2844 and 2850, thus it is averred that due credit was given to the goods which were returned by the defendant to the plaintiff Co.
8. It is further stated that after receipt of said credit note, the defendant had made payment to the plaintiff in respect of two invoices bearing no. 2528 and 2532 dated 05.09.2011 vide NEFT transfer dated 07.01.2012 for Rs. 2 Lacks but, the plaintiff had denied any assurance given by marketing executive of the plaintiff.
9. It is averred that the averments of the defendant is wrong as goods were supplied as sale and not on trial basis as averred by the defendant and the defendant had made payment of the said invoice vide NEFT transfer dated 18.02.2012.
10. The plaintiff had further denied any excess payment averring that as on date an amount of Rs. 1,96,387/ is due from the defendant.
11. In rejoinder to the reply affidavit, the defendant had denied each and every averments of the reply.
Suit no. 114/12 M/s. SCJ Plastic Ltd. Vs. M/s. Jaishree Polyplast Pvt. Ltd. 4/10
12. Arguments were addressed by Ld. counsels for both the parties.
13. During the course of arguments, both the counsels had filed certain judgments as to the maintainability of the present suit under order XXXVII CPC.
14. The plaintiff had averred that the present suit is maintainable U/o XXXXVII CPC and had placed reliance on the following decisions: a. Reliance Industries Ltd. Vs. Imperial Pigments (P) Ltd, 104 (2003) DLT 651 b. Dura Line India Pvt. Ltd. Vs. BPL Broadband Network Pvt. Ltd, 2004 (74) DRJ 266.
c. Sanjay Jain Vs. J. K. Transformers and Switch Gears & Anr., 2012 VII AD ( Delhi) 183 d. Coim India Pvt. Ltd. Vs. Kurt O John Shoe Components (I)Pvt. Ltd. & Anr., CS(OS) No. 855/2010, Order dated 09.07.2013. e. M/s. KIG Systel Ltd. Vs. M/s. Fujitsu ILIM Ltd., AIR 2001 Delhi 357.
15. Before going into all the issues raised by the defendant, firstly, this court will decide about the maintainability of the present suit under order XXXVII CPC because if the suit is not maintainable under order XXXVII CPC, then the defendant would be entitled for unconditional leave to defend on this ground only.
16. Order XXXVII CPC applies to the following classes of suits, Suit no. 114/12 M/s. SCJ Plastic Ltd. Vs. M/s. Jaishree Polyplast Pvt. Ltd. 5/10 namely: a. suits based upon bills of exchange, hundies and promissory notes; b. suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising
(i) on a written contract, or
(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or
(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.
17. Perusal of the plaint reveals that the plaintiff had filed the present suit averring business transaction between the plaintiff and the defendant and by virtue of the same, the plaintiff used to supply the goods to the plaintiff and invoices were raised. The defendant then made part payment of those bills from time to time, which was evidenced in the statement of account and the plaintiff is now claiming outstanding amount as per the statement of account.
18. It is argued by Ld. Counsel for the plaintiff that since the suit is based on invoices which in itself is a written contract, therefore suit is maintainable under order XXXVII CPC.
Suit no. 114/12 M/s. SCJ Plastic Ltd. Vs. M/s. Jaishree Polyplast Pvt. Ltd. 6/10
19. In support of his contention, Ld. Counsel for the plaintiff had placed reliance on several decisions, and this court will decide the applicability of those decisions to the facts of the present case in the following paragraphs.
20. In Reliance Industries Ltd. (Supra), it has been observed that Invoices/ Bills are written contracts and the same would sufficiently attract the rigours of order 37 CPC. Facts of the said case reveals that in the same, during the course of arguments, the defendant had raised the objection as to maintainability of the suit under order 37 CPC being based on running statement of account but Hon' ble High Court had rejected this plea placing reliance on Daya Chand Uttam Prakash Jain & Anr. Vs. Santosh Devi Sharma 67 (1997) DLT 13 , but in the same, there was an acknowledgment of debt by one of the partner and it was observed that same constitutes written contract and similarly in Reliance Industries Ltd. (Supra) also, there was acknowledgment of outstanding dues which was contained in letters issued by the defendant, so it was held that the acknowledgment constitutes written contract and therefore, suit is maintainable U/o 37 CPC.
21. But, the said decision is not applicable to the facts of the present case as there is no acknowledgment of outstanding dues by the defendant in any letter or other document placed on record by the plaintiff.
Suit no. 114/12 M/s. SCJ Plastic Ltd. Vs. M/s. Jaishree Polyplast Pvt. Ltd. 7/10
22. The plaintiff had further placed reliance on Dura Line India Pvt. Ltd. (Supra), in which it was observed that merely because the plaint contains averment that the suit is based on running statement of account, the same does not bring it out of the ambit of order 37 CPC and in the said case also, there were invoices which constitutes written contract in addition to the acknowledgment and confirmation of balance, thus after the balance due was confirmed by the defendant, same was also said to be written contract, thus the said decision is also not applicable to the facts of the present case, as in the present case there is no acknowledgment of outstanding dues by the defendant.
23. In Sanjay Jain (Supra), the suit was based on 4 invoices in respect of which C forms were issued and the court had granted conditional leave to defend on the ground that the defendant is not able to rebut the liability to pay the outstanding amount.
24. But, in the present case, the defendant though admitted the transaction but he had refuted the liability on the ground that he had returned certain defective goods of which intimation was given to the plaintiff and the statement of account does not reflect true account and in order to substantiate the averments, the defendant had placed on record, intimation letter addressed to the plaintiff Co., thus the the aforesaid judgment is also not applicable to the facts of the Suit no. 114/12 M/s. SCJ Plastic Ltd. Vs. M/s. Jaishree Polyplast Pvt. Ltd. 8/10 present case.
25. The plaintiff had further placed reliance on Coim India (Pvt) Ltd. (Supra), but in the said case also, the plaint contains averments as to confirmation of accounts by authorized signatory of the defendant, therefore, on the basis of same, leave to defend was denied.
26. Lastly, the plaintiff had placed reliance on KIG Systel Ltd. (Supra), but the same is purely based on invoices and not on running statement of account.
27. Thus, none of the decisions relied by the plaintiff applies to the facts of the present case.
28. On the other hand, Ld. counsel for the defendant had placed reliance on K.K. Healthcare Pvt. Ltd. Vs. Pehchan Advertising RFA No. 202/2011 decided on 23 January 2012 and M/s. Associates & Ors., CS (OS) No. 2109/2002 decided on 9 Aug 2012., in which it was observed that the suit which is not based on invoice but the amount claimed is balance due at the foot of running account i.e after adjustment/credit for certain payment made for invoice/bills, the same can not be covered U/o 37 CPC.
29. In the considered opinion of this court, the present suit is also filed by the plaintiff for claiming an account lying at the foot of the Suit no. 114/12 M/s. SCJ Plastic Ltd. Vs. M/s. Jaishree Polyplast Pvt. Ltd. 9/10 account after adjusting/crediting payments made from time to time by the defendant, giving credit to the goods returned, but without any acknowledgment of outstanding dues by the defendant, so the suit is not maintainable U/o 37 CPC and if the suit is not maintainable U/o 37 CPC, then the defendant is entitled to unconditional leave to defend.
With aforesaid observations, the application of the defendant under order XXXVII Rule 3(5) CPC is allowed.
The defendant is directed to file the W.S within 30 days from today after supply of advance copy of the same to the opposite counsel at least one week before NDOH.
Put up for further proceedings on 30.11.2013.
(SHAMA GUPTA) CIVIL JUDGEC16/THC DELHI /07.10.2013 Suit no. 114/12 M/s. SCJ Plastic Ltd. Vs. M/s. Jaishree Polyplast Pvt. Ltd. 10/10 CS No./11 .2013 Present: None.
Vide separate order of even date, (SHAMA GUPTA) CIVIL JUDGEC16/THC DELHI /.2013 Suit no. 114/12 M/s. SCJ Plastic Ltd. Vs. M/s. Jaishree Polyplast Pvt. Ltd. 11/10