G.S. Sistani, J. (Oral)

CS(OS) No.1062/2011, I.A.No.1085/2014 and IA No.1086/2014

1. Plaintiff has filed the present suit under the provisions of Order XXXVII of the Code of Civil Procedure, 1980, for recovery of Rs.1,00,00,000/- (Rupees One Crore).

2. I.A. 1085/2014 has been filed by defendant no.2 and IA 1086/2014 has been filed by defendants no. 1, 3 and 4 under Order XXXVII Rule 3 (5) CPC seeking leave to defend.

3. The necessary facts, to be noticed which have led to the filing of the present suit and as stated in the plaint, are that the plaintiff is stated to be carrying on the business in the name and style of M/s Binary Computers Systems and is dealing in Computer Hardware and Software of various brands including Hewlett-Packard, Lenovo and Microsoft. Defendant no.1 is a partnership firm and defendants no.2 to 4 are its partners. Defendant no.5 is the manufacturer of computers and laptops and defendant no.1 was the registered distributor of defendant no.5.

4. As per the plaint, the plaintiff and defendant no.1 used to purchase computers from each other based on their requirement and issue post dated cheques once the goods were delivered. Between December, 2010 and February, 2011 defendant no.1 had placed purchase orders with plaintiff and subsequently issued cheques to the plaintiff for the value of goods so purchased. The plaintiff has filed on record copies of 23 invoices issued by defendants no.2 to 4 duly signed by the representatives of the defendants. The plaintiff has also placed on record the original cheques, which were handed over by defendants no.2 to 4 to the plaintiff along with the corresponding original Return memos issued by HDFC Bank to the plaintiff. The plaintiff has also placed on record the communication dated 17.3.2011 by defendant no.2, which is stated to be in the handwriting of Mr. Manish Chawla, defendant no.2, and also an undated communication issued by defendant no.2 to H.P. India (P) Ltd., 6th Floor, Global Business Park, ‘D’ Tower, Gurgaon, whereby defendant no.2 has authorised the plaintiff to collect all pending claims/cheques on behalf of defendant no.2.

5. Communication dated 17.3.2011 issued by defendant No.2 reads as under:

“Dear Anil Ji Thanks for all the things that you have done for me. I never find such kind of nice person in my whole life. I have to owe you the money but after my all efforts I am not successful so I find the easiest way due to Ajay Chug. Pls take care of my relative and friends after me so that nobody can hassle them.

For your money kindly take it from HP. Over their you have to contact Mr.Arun Sood 9811148584, Suraj Dixit 09871097999 and Sunil Dutt 9810053115.

I am enclosing the Authorization Letter and few cheques of S.D. Infosys.

I told you that I will never cheat you.

Your friend

Sd/-

Manish Chawla

17.3.2011”

6. The undated communication also placed on record reads as under:

“To,

HP India (P) Ltd.

6th Floor Global Business Park

‘D’ Tower

Gurgaon.

I (Manish Chawla) authorizing Mr.Anil Tyagi (Binary Computers Systems: Laxmi Nagar) to collect my all pending claims cheques of HP on my behalf. Thanks & Regds Sd/- & Seal Manish Chawla”

7. Learned counsel for the plaintiff submits that the present suit is based on invoices and dishonour of the cheques issued by defendants no.2 to 4 in favour of the plaintiff. Counsel has placed reliance on a judgment rendered by this Court in the case of M/s Harkaran Dass Deep Chand vs. Viren Agrotech Pvt. Ltd. CS(OS) 2377/2010 wherein this Court has recognised invoices to be a written contract.

8. Reliance is also placed by counsel for the plaintiff on the dishonoured cheques to show that the present suit is maintainable under the provisions of Order XXXVII of CPC.

9. Counsel for the plaintiff also relies on G.P. Bhatia vs. Dee Kay Inc. & Ors. reported at 188 (2012) DLT 721, wherein reliance has in turn been placed on the case of M/s.Sunil Enterprises vs. SBI reported at AIR 1998 SC 237 wherein the Apex Court has d