JUDGMENT

I.A. 3198/2023

1. By way of the present application under Order XXXVII Rule 3 (5) of Civil Procedure Code (“CPC”), the defendant no.1 seeks leave to defend the present suit of the plaintiff, filed under Order XXXVII of the CPC.

2. By way of the present suit, the plaintiff seeks recovery of Rs.4,21,39,402.95/- along with pre-suit interest amounting to Rs.2,04,08,260/-, and also pendente lite and post-decretal interest, till date of realization of the principal amount from the defendants. The said amount/s have been claimed on account of equipments that is stated to have been undisputedly supplied by the plaintiff to the defendant no.1 company.

3. It is averred in the suit that the defendant no.1 had been awarded a project by Indian Oil Corporation Limited (“hereinafter referred to as the “IOCL project”) for installation of equipment at 3 project locations at Jalandhar, Jammu and Sangrur and the defendant no.1 procured the requisite equipment for the IOCL project from the plaintiff by issuing three purchase orders dated 17.05.2019 (hereinafter referred to as the “POs dated 17.05.2019”) bearing numbers Plus91SS/PO-02/IOCL/2019-2020, Plus91SS/PO-04/IOCL/2019-2020 and Plus91SS/PO-03/IOCL/2019-20 for Rs.19,393,857/-, Rs.10,179,645/- and Rs.12,565,946/- respectively, totalling an amount of Rs.4,21,39,448/-.

4. In terms of the three POs dated 17.05.2019, the plaintiff is stated to have supplied equipment at all three sites specified in the said purchase orders i.e., at Jalandhar, Jammu and Sangrur. The defendant no. 1 is also stated to have acknowledged the receipt of the said equipment by way of various emails from 31.07.2019 – 24.09.2019.

5. Relying upon the aforesaid POs dated 17.05.2019, it is submitted on behalf of the plaintiff that the payment for the delivery of the equipment at the requisite locations was to be made by the defendant no.1 by way of post- dated cheques (hereinafter referred to as “PDCs”) no later than 120 days from the date of delivery.

6. The plaintiff is stated to have raised fifteen invoices for the equipment supplied to the defendant no. 1 in terms of the three POs dated 17.05.2019.

The said invoices were for a total amount of Rs. 4,21,39,402.95/-.

7. As per the payment terms set out in the aforesaid invoices, the due dates of payment towards the invoices raised, were on 28.11.2019, 21.12.2019, 28.12.2019, 15.01.2020 and 22.01.2020.

8. Pursuant to the said invoices being raised by the plaintiff and in accordance with the terms of payment set out in the POs dated 17.05.2019, the defendant no.1 is stated to have issued one PDC dated 28.11.2019, one PDC dated 21.12.2019, one PDC dated 28.12.2019, one dated PDC dated 16.01.2020, and two PDCs dated 22.01.2020 (totalling INR 4,21,39,448/-)

to the plaintiff.

9. Prior to the date for encashment of the first PDC, i.e., PDC dated 28.11.2019, the defendant no. 1 is stated to have sought an extension for payment of the invoices. Such request of defendant no.1 is stated to have been rejected by the plaintiff in view of the payment terms agreed between the parties.

10. It is averred by the plaintiff that the defendant no.1 failed to make payment towards the invoices raised by the plaintiff and sought to justify the said failure / denial to pay the plaintiff on account of certain dues that were allegedly payable by the plaintiff to the defendant no.1 under separate agreements which were executed between the plaintiff and defendant no.1 prior to the IOCL project.

11. It is the plaintiff’s case that the equipment was supplied to the defendant no.1 in terms of the POs dated 17.05.2019 executed in favour of the plaintiff by defendant no.1, and payment should be made by the defendant no.1 in terms thereof. In this regard, it is submitted that the POs dated 17.05.2019 form a separate contract between the plaintiff and defendant no.1 and have no connection with prior projects executed by the plaintiff with the defendant no.1.

12. Vide email dated 27.11.2019, the defendant no.1 is st