M/S R.D GOEL & CO PVT LTD v. M/S OK PLAY INDIA LTD

1. Plaintiff has filed the present suit for recovery of Rs.21,42,852/- against the defendants under the provisions of Order XXXVII of the Code of Civil Procedure. The suit is based on 58 bills, details of which have been extracted in paragraph 4 of the plaint. It is the case of the plaintiff that the defendant had been engaging the services of the plaintiff company for the purposes of transporting its consignments. With respect to each consignment a separate goods receipt was drawn by the plaintiff. As per business practice the plaintiff raised bills upon the defendant company inter alia in respect of the freight charges, payable by it, towards the carriage performed by the plaintiff company. It was agreed between the parties that the amounts were to be cleared within 60 days of the submission of the bills, however, the defendant company failed to make the payments. As the defendant company failed to make payment within 2014:DHC:4490 the stipulated period, the defendant rendered itself liable for interest @ 18% p.a. Thus a total sum of Rs.4,87,000/- has become due and payable as on 31.12.2011. Further, defendant company also made unwarranted deductions in various bill amounts as enumerated in paragraph 5 of plaint, making a total of Rs.2,26,181/- for said deductions.

2. Therefore, plaintiff claims from defendant company, Rs.14,29,478 towards outstanding bills, a further sum of Rs.2,26,181/- towards wrongful deductions and Rs.4,87,000 towards interest, making a total sum of Rs.21,42,852/-.

3. The defendant has sought unconditional leave to defend inter alia on the ground that this Court has no territorial jurisdiction. The application for summons for judgment was filed after delay of 16 months, and moreover, the present suit is not maintainable under the provisions of Order 37 CPC as the bills sought to be relied upon by the plaintiff do not contain the necessary details, which would include the agreed freight charges and the time period for payment.

4. Counsel for the plaintiff submits that even as per the own showing of the defendant, a sum of Rs.11,97,802/- is due and payable, which is evident upon reading of the statement of account of the defendant filed by the plaintiff. The same is disputed by counsel for the defendant.

5. In the case of M/s.Mechalee Engineers & Manufacturers Vs. M/s.Basic Equipment Corporation AIR 1977 SC 577 the Apex Court has drawn up the parameters to be considered by the court while dealing with the application for leave to defend. Relevant praras of the judgment reads as under:

6. Taking into consideration the submissions made by counsel for the parties, prima facie, I am of the view that the defendant has been able to make out a case for grant of conditional leave to defend. The grounds raised in the leave to defend would require trial and cannot be decided without recording of evidence. I am of the view that the defence sought to be raised by the defendant cannot be termed as sham or moonshine and thus it would fall under exception (c) and would be entitled to conditional leave to defend.

7. Upon deposit of Rs.12.0 lacs in the Court within eight weeks the defendant shall be entitled to contest the matter.

8. Counsel for the plaintiff submits that he will make an application for release of this amount, which shall be considered when such an application is moved.

9. Application stands disposed of, in above terms. CS(OS) 1280/2012

10. Let the written statement be filed within 30 days. Replication be filed within 30 days thereafter. Parties will file documents within the same period.

11. List the matter before the Joint Registrar for admission /denial of documents on 13.11.2014.