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.,