Leave to defend may be conditional if doubts exist about the genuineness of the triable issues raised by the defendant.

JUDGMENT

Amit Bansal, J. (Oral)--This petition under Article 227 of the Constitution of India impugns the order dated 03rd February, 2021 passed by the Court of Civil Judge-01, West, Tis Hazari Courts, Delhi in civil suit being CS SCJ No.521/2020, whereby unconditional leave to defend has been granted in favour of the respondent/defendant (hereinafter `respondent').

2. Notice was issued in the said petition on 28th July, 2021and the suit proceedings were stayed. On the next date of hearing, parties were granted liberty to file written submissions in respect of the issue in the present petition. Both the parties have filed written submissions.

3. Before dealing with the contentions of the parties, it is deemed appropriate to detail the facts preceding the filing of the present petition.

3.1. The suit from which the present petition arises was filed by the petitioner/plaintiff (hereinafter `petitioner') against the respondent under Order XXXVII of the Code of Civil Procedure, 1908 (CPC) for recovery of Rs.1,94,586/-.

3.2. Summons were issued in the suit on 10th July, 2020 and the respondent entered appearance.

3.3. In August, 2020, the petitioner filed affidavit under Order XXXVII Rule 3(4) of the CPC for issuance of summon for judgment.

3.4. Thereafter, the respondent filed application for leave to defend under Order XXXVII Rule 3(5) of the CPC, whereby the respondent claimed that (i) the Trial Court does not have pecuniary jurisdiction to adjudicate the dispute; and, (ii) the goods in question were old and unfit for use.

4. Vide the impugned order dated 03rd February, 2021, the Trial Court, while relying on the judgment in Mechelec Engineers & Manufacturers Vs. Basic Equipment Corporation, (1976) 4 SCC 687 held that both the issues raised in the leave to defend application are triable issues. Accordingly, unconditional leave to defend was granted in favour of the respondent.

5. Counsel for the petitioner draws attention of the Court to paragraph 14 of the impugned order to demonstrate that the unconditional leave to defend has been granted on account of two factors, (i) that Civil Judge did not have the pecuniary jurisdiction to decide the suit as the claim amount was above Rs.3,00,000/-; and, (ii) that the stocks supplied by the petitioner to the respondent were old and not fit for use.

6. Counsel for the petitioner contends that there is no merit in both the aforesaid grounds considered by the Trial court in granting unconditional leave to defend. It is submitted that the principal amount claimed in the suit is Rs.1,94,586/-. The remaining amounts of interest and costs are only incidental to the principal amount and therefore, should not be counted for the purposes of determining pecuniary jurisdiction. It is further stated that even if the interest amount is calculated, the same would be Rs.86,000/- and therefore, the total amount claimed will still be below Rs.3,00,000/-.

7. As far as the supply of old goods are concerned, it is submitted that the last of such supplies was made in 2018 and the objection with regard to quality of the goods was taken only for the first time in the application for leave to defend filed on behalf of the respondent in August, 2020. Accordingly, he places reliance on Section 42 of the Sale of Goods Act, 1930 to contend that the goods are deemed to have been accepted by the respondent. Reference in this regard is made to the judgment of this Court dated 11th May, 2018 in RFA No.401/2018 titled United Electronics & Anr. Vs. Compuage Infocom Ltd. & Anr..

8. Counsel appearing on behalf of the respondent submits that the petitioners have claimed thr