J U D G M E N T

IA 1385/2017 in CS(OS) 3148/2015 (under Order XIII-A r/w Order XII Rule 6 of the CPC)

1. The plaintiff has filed the abovementioned suit for a decree against the defendant in the sum of ₹1,55,46,586.62 alongwith pendente lite and future interest. By the present application, the plaintiff seeks summary judgment under Order XIII-A Rule 3 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the CPC”)

in the sum claimed or alternatively, a decree upon admission for a lesser amount, allegedly admitted by the defendant.

2. During the course of this suit, the plaintiff filed an application for attachment before judgment which was initially allowed by a judgment dated 21.12.2016 in IA No. 487/2016. That judgment however was set aside by the Division Bench on the defendant‟s appeal (judgment dated 20.01.2017 in FAO (OS) 19/2017), and the application was remitted for fresh consideration of this Court. Although that application remains pending, counsel for the parties agree that the present application filed in the meanwhile be taken up for hearing first.

A. Facts

3. The plaintiff is a company incorporated in England which specialises in the marketing and sourcing of pharmaceutical products. The defendant, as proprietor of a concern known “Medicine House”, is engaged in the business of supplying such products. The present suit arises out of two purchase orders placed by the plaintiff upon the defendant. Purchase Order No. 205 dated 18.10.2014 (hereinafter referred to as "PO 205") was for supply of specified quantities of Letairis capsules of stipulated dosages. Purchase Order No. 213 dated 05.01.2015 (hereinafter referred to as "PO 213") was in respect of a drug known as Kuvan Powder. The case of the plaintiff is that, pursuant to the aforesaid purchase orders, the defendant issued proforma invoices stipulating inter alia that payment was required to be made in advance and that the delivery time in respect of invoices were three weeks and four weeks respectively. The plaintiff remitted the amounts due under the invoices. However, it is undisputed that no supply was in fact made under the invoices in question, although the defendant claims this was due to incomplete information being supplied by the plaintiff. The purchase orders were ultimately cancelled by the plaintiff and the plaintiff sought refund of the amounts remitted by way of advance payment. The defendant refunded a part of the amounts, but his failure to comply with this request in full has led to the institution of the present suit.

4. The detailed facts leading to the institution of this suit, and required for adjudication of the present application, are as follows:-

a. The defendant was in correspondence with one Mr. John James (hereinafter “JJ”) of an American concern called M/s Daelmann Health Limited, with regard to a potential transaction for supply of medicines.

b. Under the cover of an email dated 02.08.2014, the defendant sent to JJ a proforma invoice for two medicines, Letairis and Revlimid. It was further stated as follows: -

"Once your orders are finalised, we will reconfirm on the availability status and suppliability for both these products and confirm you to make the payments. Please do not initiate any payments prior to our final confirmation."

With regard to Kuvan powder also, the defendant corresponded with JJ, including inter alia by way of an email dated 25.10.2014.

c. PO 205 was sent by JJ to the defendant by email dated 18.10.2014, on which a representative of plaintiff was also copied. The purchase order was issued by the plaintiff for specified quantities and dosages of Letairis. It was dated 18.10.2014 and was for the sum of USD 2,81,753.92.

d. In response thereto, the defendant raised Proforma Invoice No. 10123R dated 30.10.2014 for the same amount. The terms provided therein were inter alia as follows:

" Payments Terms: Prepayment required Delivery Time: 3 Weeks from order confirmation and payment Validity: Upto 30 Nov 2014 Incoter