JUDGMENT

SANJEEV NARULA, J. (Oral):

I.A. 5968/2022 (u/Order XXXVII Rule 3(5) of the Code of Civil Procedure, 1908, for leave to defend the captioned suit)

1. This judgment deals with a monetary suit under Order XXXVII of Code of Civil Procedure, 1908 [hereinafter “CPC”] raising a commercial dispute under Section 2(1)(c) of Commercial Courts Act, 2015 for unpaid sale of goods. On 10th March, 2022, this Court issued summons and concurrently passed an interim order restraining creation of third-party rights on two properties of the Defendant located in Agra. Upon summons being served, the Defendant entered appearance in the time stipulated under the provisions of Order XXXVII of CPC. On 05th April, 2022, this Court directed for issuance of summons for judgment to the Defendant in Form 4A of Appendix B of CPC. In response, Defendant has applied seeking leave to defend the instant under Order XXXVII Rule 3(5) of CPC raising certain triable issues and certain jurisdictional objections on maintainability. This judgment shall ascertain if the Defendant should be afforded an opportunity to defend the suit and if any conditions are required to be imposed. BACKGROUND AND PLAINTIFF’S CONTENTIONS:

2. The background facts and Plaintiff’s contentions emerging from the plaint are as under:

2.1. The Plaintiff is a company engaged in the business of distribution and sale of steel pipes, shuttering and other material. They are a distributor of APL Apollo Tubes Ltd., who are the original equipment manufacturers of various pipes and tubes. In the month of November, 2018, Defendant placed orders for purchase of ‘M S Pipes & Tubes’ of various descriptions against which supplies were made. The details of invoices raised by the Plaintiff on the Defendant for the period from 14th November, 2018 to 16th January, 2019 have been listed in paragraph no. 4 of the plaint and are extracted hereinbelow:

2.2. The Plaintiff supplied the goods valued at Rs.1,53,65,785/- to the Defendant, however, no payments were received despite repeated requests and reminders. Subsequently, the Defendant issued a Cheque bearing no. 000610 dated 30th May, 2019, for Rs.1,53,65,785/- drawn on HDFC Bank, Gurgaon, in favour of the Plaintiff, at the Plaintiff’s office in Delhi. However, the cheque was subsequently dishonoured due to ‘insufficient funds’ when presented for payment on 31st May, 2019.

2.3. Upon being informed of the aforementioned circumstances, the Defendant requested additional time to fulfil the payment obligation. In response, the Plaintiff refrained from initiating criminal proceedings, aiming to preserve their ongoing relationship. Nevertheless, it was mutually agreed that the Defendants would incur an interest charge of 18% per annum on the outstanding amount. This rate not only aligns with customary trade practices but is also sanctioned under Sections 80 and 117 of the Negotiable Instruments Act, 1881 [hereinafter “Negotiable Instruments Act”]. Consequently, the application of this interest rate to the outstanding balance, spanning from 01st June, 2019, to 15th February, 2022, entitles the Plaintiff to a pre-suit interest total of Rs. 74,90,819/-. Accordingly, the total amount recoverable from the Defendant as on the date of filing the suit stands at Rs.

2,28,56,604/-.

2.4. The invoices in-question, issued by the Plaintiff, were inclusive of an

18% Goods and Services Tax [hereinafter “GS