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2014 Supreme(Del) 2255
High Court of Delhi
G.P. MITTAL, J.
Rathi Steel Limited
Versus
M/s. S & S Technocrats (P) Ltd.
IA No. 13981 of 2013 In CS (OS) No. 1009 of 2013
Decided on: 10-10-2014
For the Plaintiff:Amita Singh Kalkal, Advocate.
For the Defendant:Man Mohan Goel, with Lalit Sharma, Advocates.
The main legal point established in the judgment is the application of the Sale of Goods Act, 1930, and the principles for granting leave to defend a suit under Order XXXVII of CPC.
Headnote:
IA No.13981/2013 - Recovery of Rs.55,28,508 under Order XXXVII of CPC - Section 41 to Section 43 of Sale of Goods Act, 1930 - The court analyzed the defense raised by the Defendant and the legal principles under the Sale of Goods Act, 1930. The court found that the Defendant's defense was sham and false, and rejected the application seeking leave to defend the suit. The court also awarded interest at 16% per annum and costs of the suit to the Plaintiff.
Fact of the Case:
The Plaintiff filed a summary suit for recovery of Rs.55,28,508 under Order XXXVII of CPC for non-payment of goods supplied to the Defendant. The Defendant raised defenses regarding the quality of goods and limitation, and also claimed a counter claim for recovery of Rs.4,98,000 along with interest.
Finding of the Court:
The court found that the Defendant's defense was sham and false, and rejected the application seeking leave to defend the suit. The court also awarded interest at 16% per annum and costs of the suit to the Plaintiff.
Issues: The main issues were the quality of goods supplied, the limitation of the suit, and the validity of the counter claim raised by the Defendant.
Ratio Decidendi: The court applied the legal principles under the Sale of Goods Act, 1930, specifically Section 41 to Section 43, to determine the acceptance of goods and the Defendant's liability for payment. The court also considered the principles for granting leave to defend a suit under Order XXXVII of CPC.
Final Decision: The court rejected the Defendant's application seeking leave to defend the suit, awarded interest at 16% per annum, and granted costs of the suit to the Plaintiff.
G.P. Mittal, J.
IA No.13981/2013 (O.XXXVII Rule 3 (5) CPC)
1. This is a summary suit for recovery of Rs.55,28,508/- under Order XXXVII of the Code of Civil Procedure, 1908 (CPC).
2. The Plaintiff’s averments are that the Defendant by a written request dated 15.07.2009 (through fax) placed an order for supply of 99.280 MT TMT bars, as detailed in para 4 of the plaint. The amount payable by the Defendant in respect of 99.280 MT TMT bars was Rs.31,93,421/-. It is averred that the Plaintiff had been orally and in writing requesting the Defendant to make payment of the goods supplied. The Plaintiff again wrote a letter dated 16.11.2009, requesting the Defendant to clear the outstanding payment of Rs.31,93,421/-. For the sake of convenience and proper appreciation of the case, it would be appropriate to extract the letter herein:-
“Sub: Outstanding Payment
Dear Sir,
We refer to the long outstanding payment worth Rs.31,93,421/- outstanding since, July, 2009 towards supply of MS Bars to your Saket, New Delhi site. In follow up to the payment, we have been in touch with you telephonically as well as on various occasions apart from personal meeting with you in the month of August 2009, September 2009 and October 2009, but regret to inform you that neither the payment has been made to us nor you honour your word of commitment, given in personal meetings.
The details of outstanding are reproduced below:
Bill No. Bill Date Bill Amount (Rs.) Payment due date Delay Payment in days
658 16.07.2009 2,94,806/- 02.08.2009 106
667 17.07.2009 9,53,258/- 03.08.2009 105
668 17.07.2009 9,48,136/- 03.08.2009 150
372 18.07.2009 9,97,221/- 04.08.2009 104
Total 31,93,421/-
We, whereas, again request you to start making the payment against supplies as aforesaid. Any letter of acknowledgement from your side would comfort us of any business hardship which you may facing.”
3. It is averred that the Defendant wrote a letter dated 27.11.2009 (Document 5) asking the Plaintiff to resolve the matter regarding quality at sight with one Mr. Bharat Bhusan. The letter is extracted hereunder:-
“With reference to reminder 1,2 dated 06.11.2009 and 16.11.2009, we would request that you kindly get your matter resolved regarding quality at site/ Mr. Bharat Bhusan, Architect of INDESIGN. After setting the matter, please contact us to enable us to take further action in this matter.”
4. According to the Plaintiff on 02.12.2010, the Defendant issued a cheque for Rs.3,00,000/-drawn on State Bank of Indore against the outstanding amount of Rs.31,93,421/- leaving the balance amount of Rs.28,93,421/-.
5. It is the case of the Plaintiff that the Plaintiff did not receive any response from the architect and, therefore, it sent a reminder dated 28.11.2009 (Document 6) to the Defendant again asking for outstanding payment. The Defendant again required the Plaintiff to act in accordance with its letter dated 27.11.2009. The Plaintiff wrote several letters thereafter and ultimately served a legal notice dated 16.02.2010 upon the Defendant.
6. The Defendant in reply dated 25.02.2010 to the legal notice took up a plea that the Plaintiff had already lifted the material from the premises of the Defendant on 16.01.2010 but the bill was not cancelled. Thus, at this time, the Defendant completely denied its liability.
7. The Defendant filed an application being IA No.13981/2013 under Order XXXVII Rule 3(5) read with Section 151 CPC seeking unconditional leave of the Court to defend the suit. The sum and substance of the defence raised by the Defendant is that the plaint filed by the Plaintiff is supported by forged and fabricated documents and is based on false and concocted facts. It is further the case of the Defendant that the suit based on invoice no.14/658 dated 16.07.2009, invoice no.14/667 dated 17.07.2009, invoice no.14/668 dated 17.07.2009 and invoice no.14/672 dated 18.07.2009 has been filed beyond the period of limitation and thus, is liable to be dismissed.
8. Further, it is the case of the
