Delhi District Court
M/S Scj Plastic Ltd vs M/S Narvada Industries on 8 April, 2010
IN THE COURT OF MS NIYAY BINDU : CIVIL JUDGE (WEST) :
TIS HAZARI COURTS : DELHI
SUIT NO. 220/2007
M/S SCJ PLASTIC LTD.
..............PLAINTIFF
VERSUS
M/S NARVADA INDUSTRIES
..............DEFENDANT
O R D E R :-
1. Vide this order, I shall decide the application for leave to defend moved on behalf of the defendant.
2. The present suit is filed by the plaintiff under the provisions
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of Order 37 CPC for recovery of a sum of Rs. 1,36,890/- on the basis of certain bills/invoices and the running account of defendant, maintained by the plaintiff.
3. It is stated in the plaint that the defendant purchased master batches worth Rs. 64,308/- on credit of 60 days as mentioned in para 4 of the plaint and this transaction was subject to issuance of Sales Tax Form "I" and as per the terms mentioned on the said bills, the defendant was liable to make the payment of interest @ 24% per annum in case of delayed payment.
4. In the present application for leave to defend, it is stated on behalf of the defendant that the summons for judgment were not being properly issued to the defendant and the defendant is entitled for leave to defend the present suit on the basis of the grounds which are mentioned as follows;
5. The suit of the plaintiff is false and bogus and the defendants is a registered partnership firm having Mr. Naveen and Mr. Sandeep as the registered partners and the applicant namely Sh.
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Sandeep Gupta, is not a partner of the alleged firm and even no partnership firm ever existed on the given address.
6. It is also stated that the applicant was running his business in the name and style of M/s Narvada Industries (HUF) as the Proprietor of the same and thereafter, the business was stopped.
7. It is stated that the plaintiff has also filed another suit titled as M/s SCJ Plastic Ltd. V/s. Veer Electricals Ltd. and the partners of Veer Electricals Ltd. are known to the applicant and thereafter, the present suit was filed with mala fide intention against the defendant.
8. The plaintiff has not made the partners of the said defendant firm as parties to the present suit, so the same is not maintainable.
9. The applicant Sh. Sandeep Gupta had no dealings with the plaintiff during the period as mentioned in the bills/invoices and the same were is not received by the applicant and no material was ever supplied.
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10. The bills/invoices are totally false and baseless.
11. The present suit does not fall within purview of Order 37 CPC and that no amount is due and payable by the applicant to the plaintiff.
12. Rest of the contents of the plaint are also being denied and the applicant has prayed for grant of leave to defend to proceed with the present matter.
13. In the detailed affidavit filed in support of the present application also, the defendant has relied upon the submissions already made in the application.
14. In the reply to the present application, it is stated by the plaintiff that the defendant has failed to raise any triable issue for grant of leave to defend.
15. Rest of the averments made in the application are being denied and the averments already made in the plaint are being
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reiterated and reaffirmed.
16. Arguments are heard. File perused.
17. The plaintiff has filed the present suit under the provisions of Order 37 CPC for recovery on the basis of certificate/invoices, but the plaintiff has to prove the status of the defendant firm and he has failed to clarify as to why the other partners of the partnership firm are not being impleaded as party in the present matter.
18. Moreover, it is a well settled law that a matter may fall under the provisions of Order 37 CPC, if there is a written agreement executed between the parties and the same is containing all the terms and conditions of the transaction, but after perusal of the bills in question, all the terms and conditions are not clarified.
19. Moreover, the plaintiff firm has filed the Certificate of Incorporation of itself only in photocopy and on the basis of submissions made in the application as well as the documents which are being filed on behalf of the defendant, I am of the opinion that the
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defendant has succeeded to raise certain triable issues in the present application, therefore, an unconditional leave to defend is granted to the defendant.
20. The present suit is hereby treated as an ordinary suit for recovery.
21. Let the written statement be filed within 3 weeks of the present order with advance copy to opposite party.
22. Now to come up for filing of documents, A/D of documents and framing of issues on 21.07.2010. ANNOUNCED IN THE OPEN COURT (NIYAY BINDU) TODAY i.e. ON 08.04.2010. CJ:WEST:DELHI 08.04.2010.
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Suit No. 220/07
27.01.2010.
Present: None.
Vide my separate order of even date, the leave to defend application stands disposed off.
The present suit is hereby treated as an ordinary suit for recovery as the unconditional leave to defend is granted to the defendant.
Written Statement be filed within 3 weeks by the defendant with advance copy to the opposite party.
Now to come up for filing of documents, A/D of documents and framing of issues on 21.07.2010.
(NIYAY BINDU) CJ:WEST:DELHI 08.04.2010.
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