A defendant must establish a substantial or triable issue to gain unconditional leave to defend under Order XXXVII; conditional leave can be issued if there are serious doubts regarding the genuineness of the defence.

JUDGMENT

Prateek Jalan, J. (Oral)--The proceedings in the matter have been conducted through video conferencing.

CM APPL. 4619/2022 (exemption for filing certified copies of annexures).

Exemption allowed, subject to all just exceptions.

The application stands disposed of.

CM(M) 87/2022 & CM APPL. 4618/2022 (stay)

1. Issue notice. Mr. Parveen Kumar Aggarwal, learned counsel, accepts notice on behalf of respondent-plaintiff. The petition is taken up for hearing with the consent of learned counsel for the parties.

2. The petitioner-defendant assails an order dated 11.11.2021 passed by the learned District Judge, Commercial Court-02, South District, Saket Courts, New Delhi in CS (COMM) 431/2020, whereby the Trial Court has granted leave to defend under Order XXXVII of the Code of Civil Procedure, 1908 ["CPC"], conditional upon deposit of the principal amount claimed of Rs.33,02,192/-.

3. Parties will be referred to by their status in the Trial Court.

4. The plaintiff has filed the suit before the Trial Court under Order XXXVII of the CPC. The suit arises out of a claim for payment under various invoices issued by the plaintiff for supply of goods to the defendant. The plaintiff seeks recovery of an amount of Rs.40,44,452/- along with further interest @ 24% per annum from 08.11.2020 until realisation.

5. A list of invoices is contained in paragraph 4 of the plaint (at page 33 of the petition), wherein the plaintiff claims that goods worth Rs.52,88,145/- were supplied to the defendant. The copies of the invoices have been annexed to the present petition [Annexure P-9 to Annexure P-20] and have also been filed before the Trial Court. In paragraph 6 of the plaint, the plaintiff has averred that the defendant made part payments amounting to Rs.17,69,062/-. The plaintiff has claimed the principal amount of Rs.33,02,192/- on this basis, and has also claimed interest @ 24% from the respective dates of sale. The pre-suit interest has thus been calculated as Rs.7,42,260/- and a further claim for interest has been included in prayer clause (i) of the plaint.

6. In paragraph 11 of the plaint, the plaintiff has averred that a legal notice dated 07.09.2020 was served upon the defendant claiming an amount of Rs.43,34,674/- on the aforesaid account, against which the defendant made part payment of an amount of Rs.4,50,000/-. The defendant also replied to the legal notice through counsel on 13.10.2020.

7. After receipt of summons, the defendant applied for leave to defend the suit. The defendant has taken various defences regarding maintainability of the suit on the ground that the plaintiff has not filed the complete bills as alleged by it in the plaint, that the bills do not bear acknowledgement by the defendant, that proof of actual delivery of material has not been filed, and that a suit under Order XXXVII of the CPC cannot lie in respect of pre-suit interest.

8. The Trial Court, by the impugned order, has recorded the aforesaid contentions and granted leave to defend upon deposit of the principal outstanding amount claimed by the plaintiff. In reaching this conclusion, the Trial Court has cited several decisions of the Supreme Court including those in Santosh Kumar vs. Bhai Mool Singh, (1958) SCR 1211, Milkhiram (India) Private Ltd. and Other vs. Chamanlal Bros., AIR 1965 SC 1698 and Mechelec Engineers and Manufacturers vs. Basic Equipment Corporation, AIR 1977 SC 577.

9. Applying the principles laid down therein, the Trial Court has held that the averments in the plaint regarding the invoices, the purchases and the