( 1 ) BY this order, IA. 3107/03, moved by the defendant under Order XXXVII Rule 3 (5) read with Section151 CPC, for grant of leave to contest, is being decided.

( 2 ) PLAINTIFF has filed the above suit for recovery of Rs. 26,29,858/- (Rs. twenty six lacs twenty nine thousand eight hundred fifty eight only) from the defendant under Order XXXVII of the Code of Civil Procedure as a summary suit. Plaintiff is a manufacturer of steel forgings and finished machine products. Plaintiff claims to have supplied to the defendant Crank shafts. The suit amount represents the balance outstanding price of the goods supplied amounting to Rs. 20,72,722, together with interest thereon at 18% per annum w. e. f. 29th September, 2002 to 11th April, 2002 i. e. , the date of institution of the suit. Plaintiff also claims pendente lite and future interest at 18% per annum on the suit amount.

( 3 ) PLAINTIFF avers that it had raised bills/invoices amounting to Rs. 23,80,588/- (Rs. twenty three lacs eighty thousand five hundred eighty eight only), which were duly received and accepted by the defendant. The particulars of the invoices, totalling Rs. 23,80,588/- are given in para 4 of the plaint. Defendant in discharge of his liability issued, towards part payment of the outstanding amount, a cheque of Rs. 2,54,820/- dated 23. 1. 2001, drawn on Indian Bank, Kashmere Gate, New Delhi and promised to clear the balance outstanding at the earliest. The said cheque was dishonoured. Defendant was duly notified of the same. Defendant thereupon issued a bank draft of Rs. 50,000/- and three cheques bearing Nos. 179193 dated 5. 6. 2001 for Rs. 1,50,000/-, 174207 dated 10. 11. 2001 for Rs. 52,618/- and 174206 dated 10. 11. 2001 for Rs. 55,248/-, totalling Rs. 2,57,866/ -. The bank draft and the aforesaid cheques were duly encashed, leaving a balance of Rs. 20,72,722/- (Rs. twenty lacs seventy two thousand seven hundred twenty two only ). Plaintiff claims to be entitled to interest at 18% per annum w. e. f. 29. 9. 2000 till institution of the suit and for pendente lite and future interest at the same rate. Plaintiff, accordingly, has claimed interest of Rs. 5,57,636/- on the principal amount of the suit.

( 4 ) PLAINTIFF has averred in the plaint that the suit is filed under order XXXVII CPC being based on the written contract, bills/invoices, issued by the plaintiff, which were duly acknowledged by the defendant.

( 5 ) AFTER issuance of summons for judgment, defendant had been duly served and had entered appearance. IA. 3107/2003, seeking unconditional leave to contest has been moved. The application was moved on 10. 3. 2001. It is supported with the affidavit of one Sh. Sanjay Kumar Gulati, who claims to be the power of attorney holder and brother of the defendant. Defendant claims the suit to be an abuse of legal process, wherein the plaintiff has suppressed material facts. It is denied that there is any amount due. It is claimed that plaintiff, in fact, has to refund excess amount lying with it, after adjusting the amount for the defective and other materials returned. The suit, it is claimed, is filed without due authority. It is claimed that the suit is not maintainable under Order XXXVII CPC. Further several triable issues, arise requiring evidence. Hence, unconditional leave to contest ought to be granted.

( 6 ) DEFENDANT claims that plaintiff has failed to take into account the goods for a total sum of Rs. 12,80,259/-, returned by him to the plaintiff on account of plaintiff s sister concern M/s. Azalya Enterprises (P) Ltd. , Pune, on the condition that the said amount shall be credited to the account of the defendant with the plaintiff as M/s. Azalya Enterprises (P) Ltd. , has wound up its activities. It is further averred that plaintiff has failed to take into account the goods for a sum of Rs. 3,06,121/-, which were duly returned. Again, it is contended that plaintiff has not taken into account the damaged goods for a sum of Rs. 4,25,28