The main legal point established in the judgment is that leave to defend should not be refused unless the defendant's contentions are frivolous and do not raise any triable issue. The court emphasized the importance of granting leave to defend based on substantial and triable issues raised by the defendant.

ORDER

Chandra Dhari Singh, J. (Oral)

1. The instant petition under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") has been filed on behalf of the petitioner, praying as follows:

"IN THE PREMISE, it is prayed that this Hon'ble Court may be pleased to call for the record of the case and revise the impugned order dated 19/11/2022 passed by Sh. Chander Shekhar, Ld. District Judge (Commercial Courts), KKD Courts in Civil Suit No. 207 of 2021 titled 'Transport India - 3PL Vs. Indo Alusys Industries Ltd.' and set-aside the same and this Hon'ble Court may further be pleased to direct the respondent pay the money as sought in the plaint along with interest @18% p.a. from the date of default till realization;

Pass any such other and further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present matter and in the interest of justice."

2. Learned counsel for the petitioner submitted that the petitioner/plaintiff is a partnership firm, instituted a suit for recovery of Rs.15,48,496/- along with interest @ 18% p.a. with pendente lite and future interest against the respondent/ defendant no. 1, which is a company and defendants no. 2, 3 and 4 in the suit, who are the Directors of the Company. It is submitted that the petitioner rendered services to the defendant no. 1 company and raised invoices for the same.

3. It is further submitted that the respondent initially made regular payments but defaulted in making the payment in the year 2018 and certain invoices are still due against the respondent. It is contended that the respondent admitted the fact that certain invoices for the time period prior to 14th October 2019, by signing balance confirmation letter on 31st March 2021.

4. It is submitted that the petitioner on 14th July 2021 sent a legal notice to the respondent for making payment of the outstanding amount, however, the said notice could not be served. The petitioner sent another notice on 18th August 2021 which was duly served upon the respondent pursuant to which, neither the respondent paid the outstanding amount nor did he send any response to the same.

5. It is further submitted that due to non-payment of the outstanding amount, the petitioner instituted a civil suit bearing no. 207/2021 against the respondent for recovery of the outstanding amount.

6. It is submitted that as per the order dated 02nd November 2021, defendant no. 2 to defendant no. 4 in the suit were deleted from the array of parties on the basis that defendant no. 1 is a legal entity and it can be sued in its name.

7. It is submitted that the petitioner moved an application under Sections 114 and 152 of CPC seeking review and modification of the said order, the said application was dismissed on 23rd December 2021 by the Court below pursuant to which, the petitioner filed a fresh memo of parties deleting the names of defendant no. 2 to 4.

8. It is submitted that the petitioner sent the summons to the respondent, for settlement of issues under Order XXXVII CPC as per the prescribed form-IV in Appendix B. The respondent filed its memo of appearance and provided its address under Order XXXVII Rule 3(1) of CPC after receiving of the summons in the stipulated time.

9. It is submitted that the petitioner filed an application under Order XXXVII Rule 3(4) CPC for the issuance of summons for judgment against the respondent at the address provided by the respondent in the Memo of Appearance. It is further submitted that the respondent, after receiving the said summons, filed the application under Order XXXVII Rule 3(4) read with Section 151 CPC seeking leave to defend the suit of the petitioner.

10. It is submitted that the petitioner contested such leave to defend by way of filing reply to the leave to defend application of the respondent and stated in the reply that there is an acknowledged of debt regarding the invoices on or before 14th October 2019 by the respondent by way of balanc