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High Court Of Delhi
CORPORATE VOICE PRIVATE LIMITED - Appellant
Versus
UNIROLL LEATHER INDIA LIMITED - Respondent
Interim Application 4032 of 1995
Decided On : 09/15/1995
ORDER XXXVII RULE 3(5) - LEAVE TO DEFEND - ORDER XXXVII OF THE CODE OF CIVIL PROCEDURE - COURT HELD THAT THE DEFENDANT FAILED TO ESTABLISH A BONA FIDE DEFENCE AND DISMISSED THE APPLICATION FOR LEAVE TO DEFEND.
Fact of the Case:
THE DEFENDANT APPLIED FOR LEAVE TO DEFEND IN A SUIT FILED BY THE PLAINTIFF FOR RECOVERY OF RS. 10,13,870.50 UNDER ORDER XXXVII OF THE CODE OF CIVIL PROCEDURE. THE DEFENDANT ARGUED THAT THE DISPUTE COULD NOT BE SETTLED IN SUMMARY PROCEEDINGS, THAT THE AMOUNT CLAIMED WAS NOT LIQUIDATED, AND THAT THE COURT LACKED JURISDICTION.
Finding of the Court:
THE COURT FOUND THAT THE DEFENDANT FAILED TO ESTABLISH A BONA FIDE DEFENCE. THE COURT NOTED THAT THE DEFENDANT ADMITTED THE CORRECTNESS OF THE AMOUNT DUE IN VARIOUS LETTERS AND THAT THE DEFENDANT'S CONTENTION THAT THE COURT LACKED JURISDICTION WAS WITHOUT MERIT.
Issues: 1. WHETHER THE DEFENDANT ESTABLISHED A BONA FIDE DEFENCE? 2. WHETHER THE AMOUNT CLAIMED WAS LIQUIDATED? 3. WHETHER THE COURT HAD JURISDICTION?
Ratio Decidendi: THE COURT HELD THAT THE DEFENDANT FAILED TO ESTABLISH A BONA FIDE DEFENCE BECAUSE THE DEFENDANT ADMITTED THE CORRECTNESS OF THE AMOUNT DUE IN VARIOUS LETTERS AND THE DEFENDANT'S CONTENTION THAT THE COURT LACKED JURISDICTION WAS WITHOUT MERIT.
Final Decision: THE COURT DISMISSED THE DEFENDANT'S APPLICATION FOR LEAVE TO DEFEND AND GRANTED THE PLAINTIFF A DECREE FOR RS. 10,13,870.50 ALONG WITH INTEREST.
( 1 ) THIS is defendant s application under Order 37, Rule 3 (5) read with Section 151 of the Code of Civil Procedure (for short "the Code") seeking leave to defend in a suit filed by the plaintiff for recovery of Rs. 10,13,870. 50 under Order XXXVII of the Code.
( 2 ) THE defendant after service duly put in appearance. On summons for judgment having been served on 26th April, 1994, the defendant on 6th May, 1995 applied for leave to defend.
( 3 ) THE plaintiff s objection that te application for leave to defend is notwithin limitation cannot be accepted and the same deserves to be repelled holding that the leave to defend has been soughtwithin the period allowed in law. While computing period of 10 days, either the day of service of summons or the day on which application is filed has to be excluded. Both days cannot be counted.
( 4 ) LEAVE to defend has been sought alleging that dispute between the parties in respect of the suit amount cannot be settled in summary proceedings. Defendant s letter promising to pay the balance amount always impliedly and expressly meant that the balance payment should be the correct amount supported with proof of vouchers. Plaintiff raised inflated demands and the mere fact of remittances of invoices will not amount to defendant having admitted plaintiff s claim. According to the defendant, the suit is not for a liquidated amount and the matter requires accounting for which evidence will have to be led. Other ground seeking leave is that this Court has no territorial jurisdiction to entertain and decide the suit since cause of action arose to the plaintiff in Lucknow and one of the conditions of the contract was that jurisdiction will be of the Courts at Bangalore Metropolitan City, suit ought to have been filed either at Lucknow or at Bangalore. The application is contested by the plaintiff.
( 5 ) HAVING heard learned Counsel for the parties, I do not find any ground having been made out for allowing the defendant leave to defend.
( 6 ) THE letters exchanged between the parties and their Counsel, which are on record have not been disputed. It is also not disputed that plaintiff sent and defendant received the estimates, invoices and the bills. It is also not disputed that letters, purported to have been written by the plaintiff were duly received by the defendant and some of them were duly replied including notice got sent by the plaintiff.
( 7 ) ALONG with two letters dated 13th April, 1994 and 19th April, 1994 invoices for corporate advertisements. Financial advertisements and of Issue Opening advertisements till date with air fare bills for conferencing and press clippings were sent by the plaintiff to the defendant for the amount of Rs. 8,60,490. 00 and Rs. 8,25,456. 25 respectively. Letter dated 28th July, 1994 from plaintiff to defendant stated that the demand till then outstanding was for Rs. 11,74,026. 25, after adjusting a sum of Rs. 3,00,000. 00 received from the defendant by means of a demand draft. Reminders to pay this amount were sent on 8th August, 1994 and 9th August, 1994. On 20th August, 1994, the defendant remitted a sum of Rs. 3,00,000. 00 by another demand draft stating that the balance payment would be made shortly. As per the plaintiff s letter dated 24th September, 1994, the balance outstanding was Rs. 8,74,026. 25 against a total demand of Rs. 17,24,026. 25, after adjusting Rs. 8,25,000. 00 received till then from the defendant. On 13th October, 1994, a complete statement of account was sent by the plaintiff to the defendant reiterating the demand for the balance of Rs. 8,74,026. 25. It gave details of the amount of bills and of the payments received. On 9th November, 1994, a notice was got sent by the plaintiff through its Lawyer to the defendant purporting to be a notice under Section 434 of the Companies Act stating that Rs. 8,74,026. 25 principal with interest of Rs. 1,04,880. 00, in all a sum of Rs. 9,78,906. 25 were due and payable. from the defenda
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