( 1 ) THIS is an application for leave to defend filed by the defendants in a suit under order XXXVII of the Civil Procedure Code filed by the plaintiff, Shri K. S. Wahi.

( 2 ) THE case of the plaintiff averred in the plaint is as under: that the plaintiff had supplied raw cashew nuts to the defendants in the month of july 1997 by virtue of an agreement dated 6/07/1997 and as per the said agreement the goods were to be supplied from Abidjan (Ivory Coast) Port to Tuti corin (India) Port having a gross weight of 48. 52 MT and net weight 47,875 MT i. e. 64. 5 bags containing 80 kgs. cashew nuts each. According to the agreement the defendants was to make payment of 91 % of the total value of the goods at the time of handing over the delivery order and the balance after taking delivery of the goods. The agreement also provided that if there was any damage beyond 10% as certified by SGS at loading port, the corresponding value of the raw nuts found damaged by sprouting, water damage or lose in weight as certified by the surveyors at landing port should be given by the sellers. On 1/08/1997 the said raw cashew nuts were delivered to the defendants at Tuticorin against invoice dated 6/07/1

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