( 1 ) THIS is an application, filed on behalf the defendant under Order XXXVII Rule 3 (5) Criminal Procedure Code, seeking leave to contest the suit.

( 2 ) THE suit is filed under Order XXXVII Criminal Procedure Code for recovery of Rs. 18,12,642. 50. 00 alongwith pendente lite/future interest and costs of the suit.

( 3 ) THE plaint avers as under:-

( 4 ) THE suit is based upon the recovery of the price of material supplied by the plaintiff to the defendant from time to time. Consequently by a Reconciliation Certificate dated 8/05/1996 one Shri P. S, Khullar, General Manager (Accounts) on behalf of the defendant-Company admitted that the balance payable to the plaintiff was Rs. 14,54,351. 14. This balance acknowledged to be due as on 31. 3. 1996 comprised of rs. 11,09,743. 00 by way of principal amount and Rs. 3,44,608. 14 on account of interest. Thereafter one Shri Satish Arora, Asst. Manager (Accounts) of the defendant- company by a Reconciliation Statement showing dues as on 31. 1. 1997 admitted that the balance payable to the plaintiff was Rs. 11,09,743. 00 plus Rs. 4,83,840. 53 on account of interest totally Rs. 15,93,583. 55p. In spite of Demand Notice dated 14. 5. 1997 for the above amount sent by the plaintiff to the defendant, no steps were taken by the defendant to repay the amount acknowledged as due. The plaintiff has claimed interest @ 19% per cent as per the Agreement between the parties. Plaintiff has further claimed that the amount said to be recovered is debt or liquidated demand in money payable by the defendant arising out of the written agreement, i. e. , the Reconciliation Statement issued by the defendant and consequently the suit was being filed under the Summary Procedure prescribed by Order XXXVII Criminal Procedure Code. It is averred that no relief which does not fall within the ambit of Order XXXVII Criminal Procedure Code has been claimed in the plaint.

( 5 ) UPON being served with the summons for Judgment the defendant filed an application, IA. 5930/99 for leave to defend. Apart from pleading lack of territorial jurisdiction which was not pressed at the time of arguments, it was claimed that Order xxxvii does not apply to the facts of the present case. In fact the plea of territorial jurisdiction is anyway not maintainable because the jurisdiction is to be judged on the pleas made in the plaint and it is clearly averred that the defendant has its principal place of business (Head Office at Delhi) and has also works from Registered Office situated at Delhi. In fact the letter-head of the defendant (Annexure-A) clearly shows that the head office of the defendant is at New Delhi. It is further stated that an alleged reconciliation Certificate dated 8. 5. 1996 or the reconciliation statement of dues upto 31. 1. 1997 are neither bills of exchange nor promissory notes and cannot also amount to written contracts under the Contract Act and are also not a guarantee. It is further stated that the triable issues raised by the defendant are:-

(I) That the claim for interest which is not based on any Agreement or any specific agreement which is in dispute then the same itself is a triable issue as per the law laid down in Corporation Bank Vs Montana International and offers. 1995 (32) DRJ 438;

(II) That Shri P. S. Khullar, General Manager (Accounts) who has allegedly signed the Reconciliation Certificate dated 8. 5. 1996 and Mr. Satish Arora, asst. General Manager (Accounts) who has allegedly signed the Reconciliation statement for dues as on 31. 1. 1997 were never an employee of the defendant- company. In support of this a statement issued by the Auditors of the company has been filed stating that neither Mr. P. S. Khullar nor Mr. Satish arora had an actual, ostensible or accrued authority to issue any reconciliation certificate/statement on behalf of the defendant-Company. It is said that both were never agents nor employees of the defendant-Company and this was not alleged in the plaint. Hence ques