Shri Yatinder Kumar v. M/S Neelkanth Drugs Pvt. Ltd.

1. This petition under Article 227 of the Constitution of India is filed against the order of the trial court dated 2.9.2014 by which the trial court while allowing the leave to defend application of the petitioner/defendant directed the petitioner/defendant to deposit the amounts with respect to 11 out of 27 invoices with respect to which the suit for recovery of Rs.6,74,314/- was filed.

2. The impugned order notes that petitioner/defendant pleaded that for 11 invoices he had made the payment in cash, but no proof was given 2014:DHC:5192 with respect to payments made in cash and therefore, effectively the trial court holds that the defence of payment with respect to 11 invoices is a moonshine defence.

3. I completely agree with the conclusion of the trial court because in suits for recovery of monies under Order XXXVII of Code of Civil Procedure, 1908 (CPC) defences such as the present of allegedly having made payments in cash do not have any substance and hence courts are justified in directing deposit of the amount with respect to invoices which are allegedly said to have been paid in cash but which plea is a bald and an unsubstantiated plea. In fact, in my opinion, the trial court has been more than liberal to the petitioner because actually the suit could have been decreed so far as 11 invoices are concerned once the defence raised of payments in cash is a total moonshine defence and consequently, there was no requirement to grant leave to defend so far as the 11 invoices are concerned.

4. I may note that the trial court has passed a balanced order because so far as the other invoices totaling to 27 invoices, ie invoices other than 11 invoices are concerned, trial court has granted unconditional leave to defend because as regards these 16 other invoices respondent/plaintiff did not file on record any proof of delivery of the goods, for which the suit for recovery was filed.

5. Learned counsel for the petitioner argued before this Court that the suit was in fact not maintainable under Order XXXVII CPC because there is no averment in the plaint that no relief which does not arise under Order XXXVII CPC has been claimed in the suit, and therefore, unconditional leave to defend had to be granted. However, this argument is without merit firstly, because no prejudice is caused to the petitioner/defendant if the technical averment is not made once the necessary procedure under Order XXXVII CPC, of leave to defend being filed and considered on merits, has been followed. Secondly, it is noted that this ground which is now urged before this Court for the first time is not found in the leave to defend application which is filed by the petitioner/defendant. There is a fixed period for filing of a leave to defend application, and in that fixed period all grounds on which the defendant claims leave to defend have to be urged, and which ground are considered at the time of hearing of the leave to defend application. Surely, if no ground is raised in the leave to defend application filed in the trial court, the same could not have been decided, and that aspect hence cannot be urged in a challenge laid to an order of the trial court before this Court. If a case is not pleaded, then how can the petitioner/defendant expect that the trial court should have decided this aspect. Thirdly and finally, by not raising the ground in the leave to defend application, this defence is deemed to be waived. In any case, as stated above, there is no prejudice to the petitioner/defendant.

6. Dismissed.

OCTOBER 01, 2014 VALMIKI J. MEHTA, J. ib