Delhi High Court
M/S Dentsply India Pvt. Ltd. vs M/S Excel International & Ors. on 19 April, 2001
Equivalent citations: 2001VAD(DELHI)84, 92(2001)DLT145, 2001(60)DRJ492
Author: Mukul Mudgal
Bench: Mukul Mudgal
ORDER Mukul Mudgal, J.
1. This is an application on behalf of the defendants under Order xxxvII Rule 3(5) CPC for granting leave to defend in the above suit filed under Order xxxvII CPC by the plaintiff-M/s Dentsply India Pvt. Ltd.
2. The suit, filed on behalf of the plaintiff avers as follows:
(a) That the plaintiff is the manufacturer and marketeer of various Dental Equipments;
(b) That the defendant No.1 is a partnership concern and defendants 2 & 3 are its partners;
(c) That the defendant No.1 was appointed as a Distributor for the region of Delhi, Rajasthan and Haryana by letter dated 1st of January, 1996 for the products manufactured by the plaintiff;
(d) That however, no formal written agreement was executed between the parties;
(e) That the plaintiff has been supplying the goods to the defendants from March, 1996 till December, 1998 under various invoices;
(f) That the sales have been made by approximately 647 Nos. of invoices amounting to Rs.5,52,87,497.03 (Rupees Five Crores Fifty Two Lacs Eighty Seven Thousand Four Hundred Ninety Seven and Paise Three Only);
(g) That the defendants though making payments from time to time to the plaintiff have been irregular in payments;
(h) That the sales made by the plaintiff were credit sales as per the terms & conditions contained in the invoices;
(i) That as and when defendant made a payment, the same was duly credited into the accounts of the defendant being maintained by the plaintiff Company in the regular course of business;
(j) That out of the supply of goods of more than Rs.5,52,87,497.03 as detailed above, the defendants returned goods to the plaintiff worth Rs.52,20,005.91;
(k) That the defendants also made a total payment of Rs.2,19,58,817.34 (Rupees Two Crores Nineteen Lacs Fifty Eight Thousand Eight Hundred Seventeen and Paise Thirty Four only) to the plaintiff from time to time;
(l) That according to the statement of Account maintained by the plaintiff Company in the ordinary course of its business, an amount of Rs.2,81,28,673.78 (Rupees Two Crores Eight One Lacs Eight Thousand Six Hundred Seventy Three and Paise Seventy Eight Only) is due from the defendants to the plaintiff as on 15th of February, 1999 which amount the defendants have failed to pay despite repeated requests and reminders;
(m) That approximately 382 Nos. of S.T. Forms & C Forms were still pending and the defendants were bound to give the same to the plaintiff;
(n) That leave be granted to the plaintiff to amend the plaint in case of the defendants' refusal to issue the ST-1 & C Forms and the plaintiff's consequent liability to make the said payments to the Sales Tax Authorities;
(o) It is not disputed that Dental Equipments and goods worth Rs.5,52,87,497.03 have been sold to the defendants. It is also not disputed that Rs. 2,81,08,673.78 is outstanding against the defendants;
(p) That is the month of September, 1998 the defendants issued 6 cheques amounting to Rs.11,02,449.92(Rupees Eleven Lacs Two Thousand Four Hundred Forth Nine and Paise Ninety Two Only) in favor of the plaintiff Company towards part payment;
(q) That the above mentioned cheques were dishonoured with the remark "Payment" Stopped";
(r) That as on date the defendant is liable to pay the following amount:
a) As on 31.8.98 Rs.2,81,08,673.78
b) Interest @20% pa Rs.25,86,848.00
(s) That thus the total claim in the plaint is Rs.3,06,95,521.78;
(t) That the two letters dated 21st of January, 1999 and 13th of February, 1999 were written by the plaintiff, demanding from the defendants the outstanding amount;
(u) That however, despite repeated requests said payments have not been made which led to the filing of the present suit under Order xxxvII CPC and
(v) That no relief which does not fall within the ambit of Order xxxvII CPC has been claimed in the plaint;
3. The defendants have filed the present application, IA.3759/99 under Order xxxvII Rule 3 (5) CPC for leave to defend and in the affidavits filed on behalf of defendants 2,3 & 4 (Registered Partners of Defendant No.1) in support of the said application, the defendants while generally denying the averments and claims in the plaint have sought unconditional leave to defend the suit inter-alia on the following grounds:-
(a) That the present suit, filed under Order xxxvII CPC is not maintainable as it is neither a suit upon Bills of Exchange, Hundies or Promissory Note nor for recovery of any debt/liquidated payment arising out of any written contract or under any enactment or under any guarantee;
(b) That the present suit is based on a running account and the balance alleged to have been struck by the Plaintiff, which is disputed by the defendants, and thus the suit is not entertainable under Order xxxvII CPC;
(c) That material facts have been suppressed in the plaint;
(d) That the plaintiff is liable to pay a substantial amount to the defendants which the defendants are seeking to claim by way of a counter-claim;
(e) That the defendants were appointed as Sole Distributors of the products of the plaintiff for the region of Delhi, Rajasthan, Haryana and Jammu & Kashmir by plaintiff's letter dated 1.1.1996 for a year and this distributorship continued for the years 1996 to 1998;
(f) That the plaintiff directly appointed a number of authorised dealers in the defendants' region though there was no contract between the defendants and such dealers but there was a direct contract between the plaintiff and each of the said dealers;
(g)That the understanding between the parties was that defendant No.1 was to receive goods on credit from the plaintiff and supply/distribute the same to the dealers and the plaintiff was not to make any direct supplies to the dealers. Furthermore the prices for supplies to defendants to the dealers and the dealers' sale prices were to be unilaterally fixed by the plaintiff Company;
(h) That the plaintiff Company was to undertake the sales promotion and other connected activities;
(i) That the defendant was to get credit so as to provide sufficient time for the movement of goods to the dealers and the turnover thereon;
(j) That though the dealers were the appointees and the agents of the plaintiff, the defendant agreed to take the responsibility of supplying goods to the dealers and collecting payment on behalf of the Company but subject to the understanding that the plaintiff would not make any direct supplies or enter into any direct agreement with the dealers;
(k) That the unsold material was to be taken back by the plaintiff-company and thus the plaintiff-Company was obliged to take back all goods that remained unsold and including those whose shelf life may have expired whether stored with the defendant or the dealers;
(l) That the defendants did not commit any breach of the above understanding. However, the plaintiff Company itself committed several breaches such as:
(i) unilateral supply/dumping of stocks on the defendant far in excess of the marketing requirements for meeting internal targets set unilaterally by the plaintiff Company;
(ii)direct dealing with the dealers cloggomg the movement of the goods;
(iii)The direct recovery sought from the dealers by the plaintiff which destroyed the line of responsibility/authority envisaged between the parties under the contract;
(iv) no effective sales promotion activities were undertaken by the plaintiff;
(v) contradictory instructions and advises were directly issued to different dealers adversely affecting sales in the market which consequently had adverse impact on the defendants and caused them substantial losses;
(vi) the plaintiff did not follow a uniform policy with respect to the sale price and discriminated between the dealers and further did not fulfill the promises under the discounted schemes apart from promoting contradictory schemes;
(m) That these breaches by the plaintiff discharged the defendants of their various obligations under the contract which led to a situation where:-
(i) the plaintiff agreed to compensate the defendants and promised to pay them on overriding commission on supplies directly made by the plaintiff to the dealers. Thus a sum of Rs.35,00,000/- became due to the defendants as the plaintiff had failed to make payment of substantial amounts due to the defendants;
(ii) A substantial loss of business & goodwill in the market has been occasioned to the defendants by the plaintiff quantified at about Rs.1 crore;
(iii) the defendants made a substantial investment for promoting the plaintiff's business for a long period of time and due to the plaintiff's conduct suffered the loss at about Rs.18 lacs;
(iv)plaintiff is thus liable and responsible for the non-payment of Rs.67 lacs by the dealers because these goods were supplied at the instance of the plaintiff by the defendants to the dealers;
(v) dealers are necessary parties to the suit to enable and ensure a true and correct rendition of accounts and for settlement of all claims and the defendants are therefore, moving an appropriate application under Order 1 Rule 10 CPC;
(n) That the defendants were to be paid commission equal to 10% per cent for the period w.e.f. 1.4.1998 to 31st December, 1998 and the plaintiff is liable to pay Rs.25,21,697.64 as commission for the aforesaid period with interest @ 24% per annum;
(o) That for the period, i.e., 1st of January, 1998 to 31st March, 1998, plaintiff was liable to pay to the defendants a commission of 7% which comes to Rs.2,63,965.90 as per the provisional credit note issued to the defendants. This amount is also due with interest @ 24% per annum and goods worth Rs.9,50,874.55 were taken back by the plaintiff from the defendants during the period 6.8.1998 to 30.1.1999 for which the defendant No.1 is holding the receipts and the plaintiff had promised to, but did not, issue credit notes in lieu of the said material and to make the necessary adjustments in the running account and the defendant No.1 is entitled to the payment of the value of the said material/adjustment amounting to Rs.9,50,874.55 plus 24% interest per annum;
(p) That the defendants are entitled to recover the sum of Rs.9,22,277.75 from the plaintiff as per the Fax Message dated 22.2.1998 issued by the plaintiff;
(q) That the defendant No.1 pursuant to the Order dated 25.2.1999 returned goods worth Rs. 1,50,17,377.90 approximately as agreed by the defendants before this Court without prejudice to their rights and contentions. The plaintiff had not given the details/statement of goods returned under the orders of the Court. The defendants do not hold any goods of the plaintiff. No amount is payable by the defendants to the plaintiff and a sum of Rs.1,99,58,815.84 is liable to be paid by the plaintiff to the defendants. Most of the claims have been acknowledged by the plaintiff in various meetings and the draft Memorandum of Understanding sent by the plaintiff to the defendants on 16.1.1999;
(r) The defendants deny the correctness of all invoices since they were not raised pursuant to any orders and most were never acknowledged by the defendants. The defendants accept only invoices which are counter-signed by the defendants subject to taking and setting of accounts as the value of the said invoices were part of running amount between the parties;
(s) That the plaintiff is not entitled to interest as there is no agreement between the parties for payment of interest as there was no sale/purchase transaction between the parties. There is no liability whatsoever of the defendants to the plaintiff;
(t) That the suit is not maintainable as this Hon'ble Court does not have territorial jurisdiction in the light of the various documents filed by the defendants and (u) That the claims/issues raised by the defendant can only be determined after trial and entitle the defendants to grant of unconditional leave to defend and accordingly unconditional leave to defend the suit be granted.
4. The principal submission of the learned Senior Counsel for the defendant, Shri Rajive Sawhney, in support of the application for leave to defend is, that the suit is based on a running account and thus not maintainable under Order xxxvII of the Civil Procedure Code as it is not based on a written contract. For this purpose various pleadings and averments made in paragraphs 2 and 3 of the plaint have been relied upon which according to the defendants clearly show that the suit was based on a running account. The defendants have laid stress on the fact that no formal agreement was executed between the parties as pleaded in the plaint. Reliance has further been placed on the following plea in paragraph 3 of the plaint:
"As and when any payment was received the same was duly credited into the account of the defendant being maintained by the plaintiff company in the regular course of business. It is submitted that the value of the goods returned were duly credited into the account of defendants...."
5. The defendants have further relied upon Section 34 of the Evidence act and the judgment reported as Chandradhar Goswami and Others vs. Gauhati Bank Ltd. wherein in paragraph 6 it has been held as follows:-
".... no person can be charged with liability merely on the basis of entries in books of account, even where such books of account are kept in the regular course of business. there has to be further evidence to prove payment of the money which may appear in the books of account in order that a person may be charged with liability there under, except where the person to be charged accepts the correctness of the books of account and does not challenge them. In the present case, however, the appellants did not accept the correctness of the books of account."
6. It is further submitted that the statement of account relied upon by the plaintiff itself demonstrates that it does not refer to any contract or invoice and has not been drawn on any specific invoice and only relates to on account payments not referable to any particular invoice. It is further submitted that statement of account is not correct and most of the entries are vague and cannot be related to the defendants.
7. The next plea of the fondants is that out of 647 invoices stated in paragraphs 2 and 8 of the plaint only 406 invoices have been filed by the plaintiff and out of these 406 invoices only 23 invoices are counter signed by the defendants. It has further been submitted by the defendants that even the statement of account does not indicate that the payments were appropriated towards specific invoices but shows that they were appropriated towards a general balance. The invoices further do not mention that the defendant's commission of 10% for all sales was due, in spite of the fact that commission was payable by the plaintiff to the defendant. The defendant submitted that the goods whose shelf life expired or were unsold were to be taken back by the plaintiff and this condition does not find any mention in the invoice. According to the learned counsel for the defendants, even in the invoices filed by the plaintiff, there are the following discrepancies:-
(a) total no. of invoices filed by plaintiff 423 b) invoices filed twice 13 c) invoices of other party 4 d) no. of invoices of Delhi jurisdiction 255 total value of invoicing from delhi 2,60,32,859 e) no. of invoices of Haryana jurisdiction 161 total value of invoicing from Gurgaon 3,41,50,727
f) no. of invoices not singed by either excel (Defendant) or dentsply (plaintiff) 110 total value of such invoices 1,76,454,433 no. of invoices countersigned by excel (defendant) 23
8. Furthermore, the defendant's counsel has submitted that 161 invoices clearly stipulate that all disputes are subject to haryana jurisdiction only and the total value of such invoices is Rs.3,41,50,727/-. It is submitted that as far as these invoices are concerned this Court lacks territorial jurisdiction. The defendant have further relied upon a judgment of this Court in J.S. Sood vs. Mrs. M. Prem Lata Mehta reported as 2nd (1984) Vol.II Delhi 716 to contend that invoices are not written contracts and cannot be used to invoke order xxxvII. He has relied upon with following portion of the judgment of Mrs. Prem Lata Mehta & Anr. (supra) judgment in Para 12:-
"...as to whether the written contract may be signed by both the parties does not call for decision in the present case though it appears that the words "written contract" envisage some sort of a formal document between the contracting parties. I would rather think that it would be a condition precedent that there should be a formal agreement executed by the parties and signed by them. Plaintiff's own version is that is was a verbal contract and the document on the basis of which the suit has been filed merely acknowledges the money due under the aforesaid verbal contract. Such a writing may at best be a written acknowledgement which extends the period of limitation under section 18 of the Limitation Act, 1963, but no more. Thus I do not think that such a document would fall within the definition of written contract and the provision of order xxxvII would not apply."
9. The defendant's counsel further submits that the defendants have a counter claim against the plaintiff. The counter claim is said to be based on the breach of the oral contract and understanding between the parties which occasioned losses to the defendants. The losses are set to have been occasioned by:
a) Direct dealings with the dealers by the plaintiff by-passing the defendants:
b) direct recoveries by the plaintiff from the dealers. Thus, a sum of Rs. 35 lakhs is due to the defendants for the direct supplies made by the plaintiff to the dealers.
c) recovery of Rs.67 lakhs from the dealers to whom the goods were delivered by the defendant on the instructions of the plaintiff. This sum of Rs.67 lakhs forms part of Rs.1,53,25,167.45 being claimed by the plaintiff.
d) A sum of Rs.25,21,697.64 is the commission due to defendants from the plaintiff and this was admitted by the plaintiff in reply to the affidavit in support of the application for leave to defend.
e) The benefit of a provisional credit note of Rs.2,63,965.90 has not been given to the defendants. The issue of such credit note has not been denied.
f) Another credit of Rs.9,50,874.55 has not been given to the defendant for the value of goods taken back for which the defendant holds receipts.
g) A sum of Rs.9,22,277.75 is due on account of reimbursement of discount, differences in the amount in the credit note, cash transaction commission, dues for exponent 1997-98, Value of the material supplied by the defendants to the dealers against separated scheme coupons and value of the material supplied by the defendants to the dealers against separate scheme coupons and value of the short supplied products. Only a bald denial has been made by the plaintiff in respect of this claim of the defendant.
10. In view of the above submissions the defendant seeks leave to defend.
11. In his reply to the application for leave to defend, the learned Senior Counsel for the plaintiff Shri Amarjit Singh Chandhiok has denied that the suit does not lie under order xxxvII code of civil procedure. It has been contended by the learned counsel for the plaintiff whilst generally denying the averments in the application for leave to defend as follows:
"(a) There is an admission by the defendants that goods worth Rs.2,52,16,976.39 were supplied to the defendant No.1 during the period 01.04.98 to 31.12.98. It is further stated that good worth Rs.1,34,70,535.10/- were recovered by the Local Commissioner from the godown of the defendant No.1. It is submitted that there is also and admission that Rs.67 lacs is yet to be recovered by the defendant from various dealers. It is, therefore, submitted that even assuming without admitting the defendants' stand, the defendants are liable to return the balance sum of Rs.1,01,99,598.49 on their own showing and recover and pay Rs.67 lacs before the grant of leave to defend can be considered.
(b) Goods were supplied to the defendants through certain bills on certain terms self contained in the said bills which amount to a written contract between the parties covered by order 37 xxxvII Clause (2) Sub-Clause (b) of the code of Civil procedure.
(c) The claim of the defendants that the plaintiff is liable to pay a substantial amount to the defendant is denied.
(d) while admitting that the defendant were the authorised distributors of the plaintiff it is denied that simultaneous with the appointment of defendants, the plaintiff company directly appointed number of authorised dealers in the same region. It was further denied that there is no contract between the defendant and the dealers.
(e) the dealers were the agents of the defendant and the defendant No.1 was the only agent of the plaintiff in the State of Delhi and Haryana. The dealers were appointed at the behest of the defendant No.1 was the only agent of the plaintiff in the State of Delhi and Haryana. The dealers were appointed at the behest of the defendant No.1 and on its own recommendation. The recoveries by the defendant No.1 from the dealers were made pursuant to an oral understanding between the defendant No.1 and the plaintiff. The disowning of the dealer's liabilities pursuant to the failure of the dealers to make the payments is an after thought by the defendant to evade its liabilities.
(f) It is denied that the plaintiff failed to undertake effective sales promotion and marketing activities and the movement of the goods was slow."
12. Learned counsel for the plaintiff has further denied the claim of the defendant that 10% Commission was to be paid on the supply made to the dealers. According to the learned counsel, the commission was payable only at 7% on supplies and 3% on cash payment by the plaintiff to the defendant. It is denied that 10% commission was payable on the supplies made. The claim of Rs.25,21,697.64 said to be due to the defendant as commission for the period of 01.04.98 to 31.12.98 or any interest thereon is denied. Similarly the claim of the defendant for the sum of Rs.2,63,965.90 is also denied.
13. In respect of the return of the goods worth Rs.9,50,874.55 which were taken back by the plaintiff, it is stated that goods that were taken back were duly returned to the defendant but due to goodwill, receipts of the returned back goods was not taken.
14. The claim of the defendant for further sums of Rs.2,90,911.75 or Rs.1,92,300.00 or Rs.2,64,971.00 or Rs.80,800.00 or Rs.65,000.00 or Rs.27,295.00 said to be due from the plaintiff to the defendant is also denied. While denying that the averments in the plaint were incorrect the plaintiff has denied that it has not given details/statement of goods returned under orders of the court. The plaintiff stated that the defendant and the Local Commissioner were supplied the final list of the good returned. It is further stated that since the defendant company admitted to have received goods worth Rs.2,52,16,976.39 during the period 01.04.98 to 31.12.98 and only returned goods worth Rs.1,50,17,377.90, the defendant still owes more than Rs.1 crore to the plaintiff company.
15. The claim of the defendant against the plaintiff for a sum of Rs.1,99,58,815.84 is also denied. It is further denied that the defendant never acknowledged the invoices of the goods of the plaintiff company and it is submitted that by the acceptance of the goods covered by the invoices, the defendants are estopped from denying the correctness of the invoices or the acknowledgement of the goods.
16. The claim of the plaintiff for interest denied by the defendant, is reiterated. The claim of lack of territorial jurisdiction is also denied..
17. After considering the rival submissions, I am of the view that the defendants herein are entitled to unconditional leave to defend.
18. The Hon'ble Supreme Court has laid down the following principles for grant of leave to defend under order xxxvII C.P.C. in the M/s Mechelec Engineers & Manufacturers Vs M/s Basic Equipment Corporation :
(a) If the defendant satisfies the court that he has a good defense to the claim on its merits the plaintiff is not entitled to leave to sing judgment and the defendant is entitled to unconditional leave to defend.
(b) If the defendant raises a friable issue indicating that he has a fair or bona fide or reasonable defense although not a positively good defense the plaintiff is not entitled to sign judgment and 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 to say, although the affidavit does not positively and immediately make it clear that he has a defense, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defense to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the court may in such a case the court may in its discretion impose conditions as to the time or mode of trial but not as to payment into court or furnishing security.
(d) If the defendant has no defense or the defense set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend....."
19. It is very clear that the plaint itself clearly discloses that the suit is based on a running account. plaintiff itself has averred in the plaint that the payment when received were duly credited into the account of the defendant maintained by the plaintiff in the regular course. The plaint further states that his claim of Rs.2,81,08,673.78 is based on the statement of account maintained by the plaintiff company in the ordinary course of business. Thus my prima facie view is that the suit being based on a running account, the defendants are entitled to be granted leave to defend.
20. The learned counsel for the defendants have rightly relies upon the judgment of the Hon'ble Supreme Court of India reported in Chandradhar Goswami and others vs. Gauhati Bank Ltd. which held that mere entries in the Books of Account are not sufficient to charge anyone withe liability unless correctness of the entries is admitted. The ratio of this judgment would apply with even more force to the present claim of the plaintiff in a summary suit under order xxxvII. I am thus unable to hold that the claim of the plaintiff can be considered or decreed by a summary procedure without grant of leave to defend.
21. The defendant's counsel has pointed out certain entries which show that even from the accounts relies upon by the plaintiff all the entries are not attributable to the defendant. This discrepancy has not been satisfactorily answered in the reply to the application for leave to defend except a bald denial.
22. Furthermore, the return of goods by the respondents under acknowledgment by the plaintiff to the tune of Rs.9,50,874.55 is not denied. However, it is pleaded that these goods were returned back to the defendants but no receipts were taken for the return of these goods owing to goodwill. I am of the view that if goods are returned to the defendants without acknowledgement, the conditions which would govern such goods cannot be determined in a summary suit. This part of the claim is thus clearly not based on any written contract/acknowledgement and entitles the defendants to leave to defend.
23. Another significant factor which entitles the defendant to the grant of leave to defend is that while the plaintiff has relied upon approximately 647 invoices it has filed only 406 invoices Along with the plaint and except for 23 invoices none of them are counter-singed by the defendant and hence can not lead to a decree straight away against the defendant in a summary suit under order xxxvII. There is no statement in the plaint particularizing the averment as to which of the invoices were honoured and which remain unpaid. To determine the invoices which have been dishonoured to arrive at the liability of the plaintiff, cannot be done in a summary suit and well require trial. The plaintiff's claim that the defendant is estopped from pleading that most of the invoices were not signed by it cannot be considered at this stage when the defendant merely seeks leave to defend. Such a plea can not be determined in summary proceedings under order xxxvII and can only be determined after evidence is led. The plaintiff in its reply has not denied the averments of the defendant in this application for leave to defend that only 23 invoices were counter-signed by the defendant. All that the plaintiff has submitted in reply is that the defendants having accepted the goods the non signing of invoices by them is of no relevance. The validity of this plea of the plaintiff can not be determined in a summary suit. This in my view is another reason for grant of unconditional leave to defend.
24. Furthermore the obligation of the plaintiff to pay commission on all sales does not find reflected in said invoices and even in the reply to the application for leave to defend, the plaintiff has admitted that at least 7% out of 10% commission claimed by the defendants was payable to the defendant. The defendant has pointed out that there are other discrepancies in the invoices filed by the plaintiff such as double filing, other party's invoices, and certain invoices which are exclusively pertaining to the jurisdiction of Haryana Court. the fact that the plaintiff admits the liability of payment of 7 per cent commission which is not reflected in the invoices relied upon in the plaint, makes it prima facie clear that there are other terms of the contract apart from what is stated in the plaint which justify the fefendants' plea for grant of leave to defend and a trial.
25. I am of the view that in the light of the prima facie tenable pleas raised in the application for league to defend such as lack of territorial jurisdiction, absence of a formal written agreement, liability of plaintiff for payment of commission, liability of dealers' dues, return of certain number of goods to the plaintiff under receipt acknowledged by the plaintiff and only 23 signed invoices by the defendants, a summary suit without grant of leave to defend i snot the appropriate forum to determine such pleas. The foregoing discussion and the circumstances enumerated above clearly demonstrate that in the present case defendants have prima facie satisfied the Court that they have a good defense to the claim raised in the plaint and are entitled to unconditional leave to defend in accordance with the principles governing grant of leave to defend laid down by the Hon'ble Supreme Court in Mechelec Engineers Case (supra). In Considering the question of grant of leave to defend, I have not considered the pleas of the plaintiff that the counter claims sought to be raised by the defendant, can not be raised in a summary suit since in considering the grant of leave to defend, I have not taken into consideration the basis of the counter claim sought to be raised in the application for leave to defend.
26. In view of the aforesaid discussion, I am satisfied that the defendants are entitled to and are thus granted unconditional leave to defend the suit. IA stands disposed of accordingly.
27. The defendants will file the written statements within six weeks from today. The plaintiff to file replications, if any, within four weeks thereafter.
28. List the suit before the learned Single Judge on 17th July, 2001 subject to the orders of the Judge-In-Charge, Original side.