The main legal point established in the judgment is the application of the principles for grant of leave to defend as per the judgment of the Supreme Court in the case of M/s. Mechelec Engineeers & Manufacturers vs. M/s. Basic Equipment Corporation.

VALMIKI J. MEHTA, J

1. The challenge by means of this Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment dated 4.9.2010 granting conditional leave to defend to the appellant and to the consequential order dated 21.10.2010 decreeing the suit on account of failure to comply with the condition of payment of Rs.2,50,000/-.

2. The present appeal lies in view of the judgment of the Supreme Court in the case of Wada Arun Asbestos (P) Ltd. vs. Gujarat Water Supply & Sewerage Board, AIR 2009 SC 1027, which holds that once an application for leave to defend is dismissed, and a consequential decree is passed, appeal will have to be filed against the final judgment. In the present case, final judgment has been passed, and which is a consequential judgment decreeing the suit of the respondent/plaintiff on 21.10.2010 and hence the present appeal.

3. The facts of the case are that the respondent/plaintiff filed the present suit for recovery of Rs.4,77,819/- against the appellant/defendant with respect to the claim of balance transportation charges for transporting the goods of the appellant/defendant from London to New Delhi. The respondent/plaintiff claimed to have issued invoices totaling to Rs.6,77,819/-, and it is claimed that subject suit is filed for the balance amount due as per invoices i.e. Rs.4,77,819/-. The subject suit was filed under Order 37 CPC.

4. A suit can be filed under Order 37 CPC on the basis of a negotiable instrument or a written contract containing a liquidated amount with interest arising, or on a written contract of guarantee. In the present case, there is no averment in the plaint as to how the suit is maintainable under Order 37 CPC. I put it to counsel for the respondent/plaintiff to show me any averment in the plaint as to how the suit has been filed under Order 37 CPC, but the counsel for the respondent/plaintiff has not been able to show me any averment in the plaint as to how the suit is filed and maintainable under Order 37 CPC. The suit is not on the basis of either a negotiable instrument or a liquidated demand arising from a written contract or from a written contract of guarantee. It is today orally argued that the suit was filed under Order 37 CPC on the basis of invoices which are written contracts.

5. In my opinion, the subject suit was not maintainable under Order 37 CPC and leave to defend was bound to be granted for various reasons. Firstly, the plaint itself does not mention as to how the suit falls under Order 37 CPC, and therefore orally it is not permissible to add to the averments of the plaint to bring the suit within Order 37 CPC. Secondly, the suit does not lie under Order 37 CPC, even assuming if the same is based on the invoices, inasmuch as, the parties are governed by a specific written contract dated 18.8.2000 and as per which a specific price has been mentioned by the respondent/plaintiff for the contract of transportation as under:-

“Price (as per quotation); Rs.2,40,000/- + 3 & ½ % insurance charges”

Once there is a written contract containing the consideration, it is not possible to agree that the consideration was not that which is mentioned in the written contract. Counsel for the respondent/plaintiff sought to contend that below the aforesaid line it is written that there is possible extra costs as per quotation and therefore the respondent/plaintiff was entitled to claim additional charges, however, in my opinion, prima facie this argument cannot be accepted inasmuch as it is necessary that there has to be an amount which is agreed to between the parties for the possible extra costs, and admittedly there is no other written agreement between the parties or consent by the appellant/defendant for raising of the invoices for amounts in excess of Rs.2,40,000/- + 3 & ½ % insurance charges and that too for a hugely different/higher amount of Rs.6,77,819/-. Thirdly, the present is not a case where the amou