Summary judgment may not be granted when triable issues are raised and there is no clear and unambiguous admission by the defendant.

S.P.GARG, J.

IA No. 14363/2016 (u/O 13A Rule 2 CPC)

1. The instant IA preferred by the plaintiff under Order 13A Rule 2 of the Code of Civil Procedure, 1908 (as amended by Section 16(1) of the Commercial Courts Act, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015) for summary judgment is contested by the defendant.

2. I have heard the learned counsel for the parties and have examined the file. The plaintiff has filed the instant suit for recovery of Rs.7,41,37,369/-along with pendente lite and future interest against the defendant; it was filed on 15.01.2016. It is being contested by the defendant; written statement has been filed. The plaintiff has filed the replication. When the matter was ripe for framing of issues, the instant application was moved on behalf of the plaintiff for summary judgment. It is averred that the defendant has acknowledged and admitted its liability to pay the plaintiff the principal amount of Rs.4,50,31,303/-as claimed by the plaintiff in the suit. Outstanding amount payable by the defendant in July, 2013 was Rs.4.5 crore after adjustment of a payment of Rs.50 lacs made by it on 04.07.2013. By an e-mail dated 25.09.2013 Vikash Batra, the promoter and one of the directors of the defendant clearly and unambiguously acknowledged defendant’s liability to pay the plaintiff an amount of Rs.4,50,31,303/-. In view of it, the defendant has not real prospect of successfully defending the claims raised by the plaintiff to that extent.

3. In response to the IA, it was urged that the application was not maintainable. Numbers of issues are involved in the present case which require oral evidence and the suit cannot be decided without it. Oral evidence is required to prove that e-mail relied on in the application was part of series of communication and negotiation for settlement, which is without prejudice to the rights and that settlement proposal ultimately could not work. Due to the wrongful acts of the plaintiff, the defendant suffered loss in business and a civil suit CS(OS) 3796/2014 for claiming damages from the plaintiff has since been filed.

4. On perusal of the pleadings of the parties and the documents on record, this Court is of the considered view that there are no compelling reasons to allow the claim in a summary judgment. In the written statement, the defendant has controverted the plaintiff’s assertions in the plaint and specifically urged that the suit was bad for non-joinder of necessary party. Defendant’s agreement was with NSK Japan Ltd. and subsequently the plaintiff, who was its subsidiary, was used as a vehicle for making supply to the defendant. It was further averred that it was not a case of running account and most of the claims under invoices had become barred by limitation. It was further stated that there was inordinate delay in the supply of material and complete goods under the purchase orders placed by the defendant. The plaintiff committed breach of trust and made defaults ruining the business of the defendant. Timely delivery of products by NSK/NISCO to the defendant for onward delivery to the customers was the sine-qua-non of the terms agreed between the parties. The defendant could not do business for almost two years due to some ad interim injunction obtained by the previous agent TAPL against the plaintiff. The plaintiff wrote several e-mails to the defendant requesting it not to deal with customers till the case was resolved. It led to huge losses to the defendant. The promises made by NSK were never met. Supplies were not made in a timely manner and in malafide manner, the plaintiff took away the allocated customers / business. It was further pleaded that the defendant never agreed to make payment within 90 days or 24% interest. In e-mails dated 08.11.2011 and 26.03.2012 and 30.05.2013 the plaintiff clearly accepted the mess in their delivery system. Despite agreement between the parties wherein certain stocks were to be taken back b