( 1 ) THIS order would dispose of I. A. No. 8431 of 1987 filed by the defendant under Order 37 Rule 3 (5) Civil Procedure Code seeking leave to defend the suit No. 230 of 1987 filed for recovery of Rs. 13,44,145. 00 under Order 37 Civil Procedure Code by the plaintiff. The application is opposed on behalf of the plaintiff. I have heard the learned counsel for the parties and have gone through the file and after giving my considered thought to the matter before me, I have come to the following findings : The plaintiff has filed this suit for recovery of price of wheat seed supplied to the defendant by it on the basis of agreement dated 1st October 1984. The contention of the defendant is that this court has no territorial jurisdiction to try this suit as no part of the cause of action arose at New Delhi, that the suit is not maintainable under Order 37 CPC; that the claim of the plaintiff is neither tenable nor bonafide. It has further been urged that on 26th September, 1984 the plaintiff had offered to supply 40,000 quintals of wheat seed to the defendant and the defendant had made aconditional acceptance vide letter dated 1st October, 1984 and this seed was required by the defendant for wheat Rabi crop season of 1985 and the last date for sowing seed would be 15th November, 1985 in lower Assam and 31st October, 1985 in the upper Assam and the period of 15 days to one month was required for distribution and unless the seeds reached Assam well before these dates, the seed would be almost useless. It has further been contended that the joint discussions were held on 27th February, 1985 between the parties and in consequence the matter proceeded further and later on in June, 1985 on the representation of the plaintiff that the price of wheat seeds should be raised further joint discussions were held and price was retained at Rs. 320. 00 per qtl and another Rs. 20. 00 per qtl. was made payable for cost of container, printing etc. It is then contended that even though by the end of September, 1985 a sum of Rs. 79 lakhs bad been paid by the defendant to the plaintiff but not a single particle of wheat seeds had reached Assam uptill 5th October, 1985 and the plaintiff had thus committed breach of contract and as such is not entitled to full price at the contracted rate for several reasons, primarily, incomplete and delayed delivery. It has also been urged that of the 40,000 qtls. contracted the plaintiff claims to have despatched only 34,582. 80 qtls and what actually reached there was 34,500. 76 qtls thereby showing a total shortage of 5,499. 24 qtls. from the contracted quantity and of 34,500. 76 qtls. received, 941,66 qtls were found infested with pests/sub-standard and could not be utilised at all. It is also urged that supplies which were made after 31-10-1985 could not really be fully used for distribution with the result that firstly, good portion went waste and secondly loss was incurred in non-utilisation of the wheat field for growing the crop. It has also been urged that with respect to 19,306. 80 qtis, road transport facilities had to be utilised to speed up the supplies as the plaintiff had delayed the despatch from the rail head and therefore additional cost of road transport was to be to the plaintiff s account and in this manner a sum of Rs. 5,82,491. 44 could not be recovered by the plaintiff and it has been prayed that the defendant should be granted leave to defend the suit.

( 2 ) THE plaintiff in its reply has reiterated the territorial jurisdiction of this court and the maintainability of the suit. It has been admitted that the main agreement is dated 1st October, 1984. It has also been admitted that the full quantity of wheat seeds could not be supplied by the plaintiff but it was due to the fault of the defendant in not paying as per contracted terms and the supplies had to be made by road at the request of the defendant and as such the plaintiff was entitled to claim Rs. 5,46,609. 00 on this