Demonstration of jurisdiction and liability through invoices and jurisdiction clause, failure to raise triable issues, dismissal of application for leave to defend, decree in favor of Plaintiff

IA No. 2523 of 2011 [under Order XXXVII Rule 3(5) Code of Civil Procedure, 1908 for leave to defend]

1. This summary suit has been filed by the Plaintiff under Order XXXVII of the Code of Civil Procedure 1908 (‘CPC’) for recovery of a sum of Rs.1,40,64,950 together with pendente lite and future simple interest @ 22% p.a..

2. The case of the Plaintiff is that it has its registered office at Rajendra Place, New Delhi. The orders placed by Defendant No.1 were received by the Plaintiff at its office in New Delhi. Defendant No.2 is the Managing Director and signatory of the cheques issued by Defendant No.1. Even prior to 1st April 2007, the Plaintiff was supplying to Defendant No.1 several items like polyol, isocyanate Urecom, etc. on 60 days’ credit and subject to the jurisdiction of the Delhi Courts. Orders from Defendant No.1 were received and accepted by the Plaintiff at its office in New Delhi. Defendant No.1 had been remitting the on account part payment by cheques to the Plaintiff at the said registered office. The Plaintiff states that a confirmation of accounts was duly signed by the authorised signatory of Defendant No.1, Mr. Sanjay Swami, on 1st April 2007. This concerned the purchases of goods by Defendant No.1 from the Plaintiff up to 1st April 2007.

3. In para 6 of the plaint, the details of the invoices from 6th April 2007 to th November 2008 for supply of goods by the Plaintiff to Defendant No.1 and the amount due against each of the invoice has been set out.

4. It is stated that Defendant No.1 has issued Sales Tax C-form in favour of the Plaintiff, thus confirming the purchase of goods under the said invoices from the Plaintiff. The Plaintiff has placed on record the originals of the invoices containing endorsement on the reverse of the terms of payment, of which one is that “interest @ 22% p.a. be charged in case of delay in payment”. It is also clearly mentioned that “all disputes are subject to the jurisdiction of Delhi Courts only”.

5. The Plaintiff has stated that Defendant No.1 had to pay it a total outstanding sum of Rs.1,84,99,624.54, after accounting for the sum covered by the invoice for which C-form had been issued and for which payment had been received. There was a balance payment of Rs.1,00,11,523.37 still due from Defendant No.1, which it had failed to do despite repeated reminders and oral assurances. In para 10 of the plaint, it is stated that as against the aforementioned balance amount, and as on account, part payment of Rs.37,35,462 had been offered for which cheques had been issued with the assurance that the sum would be paid with interest. The details of the cheques issued, date and amount have been set out in para 10. Reliance is placed on a letter dated 7th February 2009 issued by the authorised signatory of Defendant No.1 enclosing a cheque for Rs.30,00,000 and assuring that it would pay Rs.50,000 to Rs.75,000 per month against the outstanding payment and give an advance payment against the materials purchased. It also undertook that the cheques which had expired would be replaced. However, no such payment was made. It is stated that when the said cheques, as detailed in para 10, were presented for payment, they were returned dishonoured with the remarks “payment stopped by the drawer”. Separate complaints under Section 138 of the Negotiable Instruments Act, 1881 have been instituted by the Plaintiff against the Defendants. It is stated that in nine criminal complaints, an assurance was given before the Court of the learned Metropolitan Magistrate by learned counsel for the Defendants that they would settle those complaints by making payment of the cheque amounts to the tune of Rs.6,57,680. Accordingly, the Plaintiff has restricted its claims to the present suit for recovery of Rs.93,53,843, reserving its right to claim the further sum of Rs.6,57,680 in case the aforementioned payment is not made by the Defendants.

6. In para 14, it is stated that on the balance sum of Rs.93,53,843, t