IA No. 8109/2011 in (u/Order XXXVII Rule 3 CPC by Defendant)

1. By this application under Order XXXVII Rule 3 CPC the Defendant seeks leave to defend.

2. Learned counsel for the Defendant contends that a summary suit under Order XXXVII CPC can be based only on a written contract and all invoices cannot be deemed to be a written contract. Invoices relied upon by the Plaintiff do not have the necessary terms of agreement. The invoice only gives number of articles and the value thereof. Neither the brand name nor the quality of the goods is mentioned. Further particulars of sellers, terms of supply, and place of supply are not mentioned. Thus no terms of contract are incorporated in the invoices and only term of payment is noted. Being devoid of terms and conditions of the contract, the invoices cannot be said to be a binding contract. The decision in M/s Lohmann Rausher Gmbh v. M/s Medisphere Marketing Pvt. Ltd, 2005 (80) DRJ 9 relied upon by the Plaintiff is not applicable to the facts of the present case. Hence the Defendant is entitled to grant of leave to defend. Reliance is placed on M/s Sunil Enterprises and another v. SBI Commercial and International Bank Ltd., 1998 (5) SCC 354; Bharat Forge Ltd. v. Onil Gulati, 121 (2005) DLT 357; A.R. Electronic Pvt. Ltd. v. R.K. Graphics Pvt. Ltd. 97 (2002) DLT 913; and Simba F.R.P. (P) Ltd. v. Department of Tourism, Lucknow, Uttar Pradesh, 1995 (34) DRJ 273.

3. Learned counsel for the Plaintiff submits that all conditions necessary for the determination of the contract are mentioned in the invoices. Merely by not mentioning that the disputes will be subject to a particular jurisdiction would not take the invoices out of the purview of a contract between the parties. The present case is covered by the decision of this court in Lohman Rausher Gmbh (supra). Along with the invoices the Plaintiff has also enclosed the bill of lading. By email dated 18th June, 2009 they agreed to make part payment and no grievance with regard to the quality of goods was raised. The Plaintiff and Defendant were in continuous course of correspondence through emails. Further Sections 41 and 42 of the Sales of Goods Act are applicable to the facts of the present case. If the goods were not of the same description the Defendant ought to have returned the same and not sold them further. The first intimation about the rejection of the goods was given only after Plaintiff’s notice seeking payment was served on the defendant. The Defendant made part payments and thus was stopped from disputing the quality of the goods thus no case for leave to defend is made out and the application be dismissed and the suit be decreed.

4. I have heard learned counsel for the parties.

5. The present suit under Order XXXVII has been filed by the Plaintiff which is a private limited company incorporated under the laws of the Republic of Mauritius and engaged in the business of selling fashion garmets under the name and style of KARL KAISER, NIELS and CERRUTI 1881. The suit has been filed through its authorized representative Mr. Didier Camboulives. The Defendant is also a private limited company incorporated under the Companies Act, 1956 having its corporate office at South Extension-I, New Delhi and is engaged in the business of retail selling of high end fashion garments. The Defendant placed orders upon the Plaintiff vide its invoice dated 16th April, 2009 bearing PK04/2009/454 for the supply of the following goods.

DESCRIPTIONQUANTITYUNIT PRICEAMOUNT USD

Woolen Jackets21360.0012,780.00

Cotton Trouser30014.004,200.00

Polo Shirts60608.004,848.00

Linen Shirts50010.005,000.00

Cotton Shirts208410.0020,840.00

Woolen Suits1028100.00102,800.00

TOTAL 150,468.00

6. It was agreed between the parties that the entire consideration of USD 1,50,468/- was to be paid in four equal installments of USD 36,617/- in the months of May, 2009, June, 2009, July, 2009 and August, 2009 respectively. The Plaintiff supplied the consignment of the goods and