Pioneer Publicity Corp. vs Bharat Marketing

S.N. Aggarwal, J.—The plaintiff has filed this suit against the defendant for recovery of Rs. 55,59,132/-under Order XXXVII CPC.

In response to summons of the suit, the defendant has filed its leave to defend application seeking unconditional leave to defend the present suit.

Arguments on the leave to defend application have been heard. The basis of the plaintiff''s claim against the defendant in the present suit is admission of liability by the defendant in its books of account for the period from 01.04.2003 to 29.01.2004 sent to the plaintiff. The ledger account of the plaintiff maintained by the defendant company in its regular course of business is filed along with the plaint and is available at pages 16-A to 16-R of Part III file. A perusal of the said ledger account maintained by the defendant in its regular course of business reveals that the defendant has admitted its liability towards the plaintiff to the tune of Rs. 47,11,134.35 paise as on 29.01.2004. The defendant in its leave to defend application has taken a plea that the amount of Rs. 47,11,134.35 paise is shown due and payable to the plaintiff because of inadvertence and according to the defendant, the said acknowledgment of liability does not confer any obligation upon the defendant for making payment of the said amount to the plaintiff. The defendant has also taken a plea in its leave to defend application that the defendant was working as a commission agent between M/s Modi Rubber Ltd. and Gujarat Guardian Ltd. on the one hand and the plaintiff on the other hand and was entitled to get the agency commission of 10% to 15% as a mediator agent between the plaintiff and the said two companies.

Mr. Murari Kumar learned Counsel appearing on behalf of the defendant has relied upon the following three judgments in support of his arguments on leave to defend application:

(i) AIR 1990 2218 (SC)

(ii) Shri S.C. Rastogi Vs. Smt. Renu Kalra and Another, and

(iii) Mechelec Engineers and Manufacturers Vs. Basic Equipment Corporation,

On the strength of the above three judgments, learned Counsel appearing on behalf of the defendant has argued that the plea raised by the defendant in its leave to defend application raises a triable issue and the defendant is entitled to unconditional leave to defend the present suit.

I have carefully considered the submissions made by the learned Counsel for the defendant and have also perused the above judgments referred and relied upon by him.

On being repeatedly asked from the counsel for the defendant about the circumstances of alleged inadvertence in admitting its liability to the tune of Rs. 47,11,134.35 paise in its books of account for the period from 01.04.2003 to 29.01.2004, learned Counsel could not tell any such circumstance for the same. The leave to defend application does not contain even a whisper as to what was that inadvertence because of which the liability to the tune of Rs. 47,11,134.35 paise was admitted by the defendant in its books of account. The plea raised by the defendant that the said liability was admitted on account of some inadvertence appears to be an afterthought and does not require any trial. The case of the plaintiff for recovery against the defendant is based upon admission of liability made by the defendant in its books of account as stated above. The defendant cannot escape its liability to pay the admitted amount to the plaintiff. It may be noted that the defendant is a company incorporated under the Companies Act and is assisted by experts in maintaining the accounts. It is unbelievable that the defendant company, in the normal course of its business, would admit its liability because of some inadvertence or oversight. Had there been any such inadvertence, it was obligatory upon the defendant to explain the said inadvertence in its leave to defend application so that the plaintiff could have appropriately responded to the same. In the absence of any such explanation for the alleged inadvertence, the plaintiff is entitled to a decree for the suit amount.

The learned Counsel appearing on behalf of the defendant has also argued that prior to filing of this suit, the plaintiff had claimed interest @ 24% per annum whereas the plaintiff itself has reduced the claim for interest from 24% per annum to 12% per annum at the time of filing of the present suit. This plea raised by the defendant regarding rate of interest also does not require any trial. The transaction between the parties was admittedly of commercial nature. The claim of interest by the plaintiff @ 12% per annum appears to be reasonable. The suit amount claimed by the plaintiff against the defendant includes the interest up to the date of filing of the suit. The plaintiff is entitled to a decree for the entire suit amount with pendente lite and future interest @ 12% per annum. All the defenses raised by the defendant in its leave to defend application are moonshine and afterthought and do not require any trial. The above referred judgments relied upon by the counsel for the defendant are not applicable to the facts of this case.

In view of the above, the leave to defend application filed by the defendant is dismissed and the suit of the plaintiff is decreed. A decree of Rs. 55,59,132/-with costs and pendente lite and future interest @ 12% per annum is passed in favour of the plaintiff and against the defendant under Order XXXVII CPC. Decree sheet be prepared accordingly.