M/S Kalyani Surgical and Medical Store v. M/S Cachet Pharmaceuticals Pvt Ltd

RAJIV SAHAI ENDLAW, J. APRIL 22, 2016 "gsr"

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 22nd April, 2016. + RFA 111/2015 M/S KALYANI SURGICAL AND MEDICAL STORE..Appellant Through: Mr. S.K. Dayal, Adv. Versus M/S CACHET PHARMACEUTICALS PVT. LTD. ...Respondent Through: Mr. Govind Rishi, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 impugns the judgment and money decree dated 27th November, 2014 of the Court of Additional District Judge (ADJ)-02, (North), Rohini Courts, Delhi in CS No.765/2014 filed by the respondent / plaintiff under Order XXXVII of the Civil Procedure Code, 1908 (CPC) consequent to the dismissal of the joint application for leave to defend of the appellant / defendant, a partnership firm of whom Sh. Ram Gopal Sharma and Sh. Asha Ram Sharma are partners. 2. Trial Court record was requisitioned and notice of the appeal was issued and subject to the appellant / defendant depositing Rs.10 lacs in this Court and which has been deposited, execution was stayed. Though the respondent / plaintiff was permitted to withdraw the amount deposited subject to furnishing security but has not done so. 3. Admit. 4. Considering that in the event of the appeal succeeding, after granting leave to defend to the appellant / defendant the matter will have to be remanded to the Trial Court for trial, the appeal, with consent of the counsels, has been taken up for hearing today itself. The counsels have been heard and the Trial Court record perused. 5. The respondent / plaintiff instituted the suit from which this appeal arises, as aforesaid under Order XXXVII of the CPC, pleading i) that the respondent / plaintiff which is a manufacturer of medicine was supplying the same to the appellant / defendant engaged in the business of retail sale of medicine and surgical goods and used to supply medicines / goods to the appellant / defendant on credit; ii) that the appellant / defendant during the period December, 2011 to March, 2012 placed several purchase orders on the respondent / plaintiff and made part payments therefor from time to time; iii) that the respondent / plaintiff in the month of May, 2012 asked the appellant / defendant to clear the outstanding amount of Rs.15,57,408/- and upon the appellant / defendant asking for particulars of the said demand, furnished a copy of its ledger to the appellant / defendant and the appellant / defendant in acknowledgment of the correctness thereof put its stamp with signatures thereon; iv) that the appellant / defendant out of the aforesaid amount due, paid a sum of Rs.1,00,000/- vide cheque dated 29th June, 2012 and subsequently paid the balance amount vide cheque dated 11th August, 2012 for Rs.14,57,408/-; v) that while the cheque for Rs.1,00,000/- was encashed, the cheque for Rs.14,57,408/- was returned dishonoured with the endorsement "exceeds arrangement"; vi) that the respondent / plaintiff got issued a legal notice dated 4th September, 2012 to the appellant / defendant but the appellant / defendant inspite of receipt thereof failed to reply thereto; vii) that the respondent / plaintiff instituted a complaint of the offence under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) against the appellant / defendant and which was pending; viii) that though the appellant / defendant as per the commercial rate of interest was entitled to interest at 20% per annum but was restricting the claim for interest 15% per annum since 11th August, 2012 till the institution of the suit amounting to Rs.3,49,778/-; ix) that accordingly the suit for a total sum of Rs.18,07,186/- under Order XXXVII of the CPC on the basis of the cheque was being filed. 6. The appellant / defendant sought leave to defend not denying the relationship as averred by the respondent / plaintiff but pleading; i) that the plea of the respondent / plaintiff of the appellant / defendant having issued the cheque was false, frivolous and concocted; ii) there was continuous bu