Navi Gold Paint Corporation vs Shri Gagan Bhalla

Indermeet Kaur, J.—The order impugned before this Court is the order dated 19.03.2010 vide which in a suit under Order XXXVII of the CPC (hereinafter referred to as the "Code"), on the application for leave to defend filed by the Defendant; the same had been allowed. Vide the impugned order, the Defendant had been directed to file his written statement; it was an unconditional leave to defend the suit which had been granted in favour of the Defendant. This order has been impugned.

Record shows that the present suit is a suit for recovery of Rs. 1,12,240/- which is the amount due from the Defendant; contention of the Plaintiff was that he had supplied goods which included paints and thinner to the Defendant against bills which were duly acknowledged by the Defendant; running account was maintained between the parties; the Plaintiff demanded the amount but the Defendant was making requests for time to pay up the amount; legal notice dated 10.12.2007 had also been served upon the Defendant. Present suit was accordingly filed under Order XXXVII of the Code.

After service of summons for judgment, application for leave to defend had been filed by the Defendant. The defence raised in the said application was that the suit is barred by limitation although No. further detail was given as to how and on what count it was barred by limitation; further contention was that the goods which had been supplied by the Plaintiff were defective and the same had been returned for which debit notes had been issued from time to time; the account books of the Plaintiff are incorrect and fabricated. This was the defence of the Defendant.

On these facts, leave to defend was granted to the Defendant. The impugned order had noted the judgment titled as Lakhani Rubber Works Vs. Ritzy Polymers, to hold that since the facts were similar and the defence raised by the Defendant was that the goods were defective, it was a triable issue entitling the Defendant for leave to defend. The impugned order had also relied upon another judgment reported in AIR 2002 NOC 235 i.e. the judgment of Smt. Neeta Aggarwal v. R.L. Gupta. Contention of the Petitioner before this Court is that both the judgments are distinct on their own facts.

In the case of Lakhani Rubber (Supra), the matter had been remanded back by the High Court to the trial Judge for considering the application for leave to defend afresh. In the case of Neeta Aggarwal (Supra), the defence raised by the Defendant was that good were defective and of inferior quality and the same had been returned against challans; details of the challans had been furnished; it was in these circumstances that the leave to defend had been granted.

The facts of the instant case are distinct. Although the Defendant had raised the plea and set up the defence that the goods of the Plaintiff were defective, his submission is that the same had been returned against debit notes issued by him from time to time. Admittedly the said debit notes had not been filed along with the application for leave to defend. Further submission of the Defendant/Respondent before this Court is that the bills which had been issued by the Plaintiff had been returned with an endorsement pointing out the defects in the goods. Bills have been filed before this Court collectively as Annexure "B". The case of the Plaintiff is in fact based on these bills which are at pages 29 to 44. None of these bills have any such endorsement. On specific query put to learned Counsel for the Respondent on this count, he has No. answer. He has also admitted that the debit notes (which find mention in his application for leave to defend) had not been filed along with his application for leave to defend; specific contention of the Defendant in his application for leave to defend was that the debit notes had been issued by him to the Plaintiff from time to time wherein the defect in the goods had been pointed out. This has also been noted in the impugned order. These debit notes were however not filed and are not a part of the record.

In these circumstances, the contention of the Plaintiff that the defence of the Defendant was moonshine, sham and illusory is correct. The whole purpose, object and intent of the provisions of Order XXXVII of the Code would be defeated if the Defendant is granted leave to defend in a suit of such a nature on a defence that is per-se illusory. No. triable issue has been raised by the Defendant. The impugned order suffers from an illegality. It is set aside. The suit of the Plaintiff is decreed in the sum of Rs. 1,12,240/- with interest @ 7% per annum from the date of filing of the suit till realization.

Petition is disposed of.