M/S Sasumorov Enterprises Pvt Ltd v. M/S Odeon Builders Pvt Ltd

RAJIV SAHAI ENDLAW, J. NOVEMBER 16, 2018 "bs"/pp..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 16th November, 2018. + CS(COMM) 927/2016 & IA No.11845/2018 (of defendant u/O XXXVII R-3(5) CPC) SASUMOROV ENTERPRISES PVT LTD ..... Plaintiff Through: Mr. K.S. Lather and Mr. Mukul Lather, Advs. Versus ODEON BUILDERS PVT LTD ..... Defendant Through: Mr. Karunesh Tandon, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The application of the sole defendant for leave to defend this suit for recovery of Rs.4,06,35,429/- filed under Order XXXVII of the Code of Civil Procedure, 1908 (CPC) is for consideration. 2. The counsel for the defendant and the counsel for the plaintiff have been heard and the counsel for the defendant has also been heard in rejoinder. 3. The plaintiff has instituted the suit inter alia pleading (i) that the defendant approached the plaintiff for supply of TMT Bar (FE 500) by placing Purchase Orders dated 6th May, 2013, 26th July, 2013 and 1st October, 2013 on the plaintiff; (ii) that the said Purchase Orders were placed by the defendant for the project of the defendant at Panchkula; (iii) that pursuant to various meetings and discussions between the parties at Panipat, Haryana, it was agreed that the plaintiff would supply the goods as required by the defendant for the price as mentioned in the invoices raised by the plaintiff from time to time; (iv) that the plaintiff delivered the goods subject matter of the invoices and which goods were accepted by the defendant, without raising a dispute as to quality, quantity or price; (v) that the plaintiff raised invoices on the defendant (a) dated 26th May, 2013, 31st May, 2013, 1st June, 2013, 1st June, 2013, 1st June, 2013 & 3rd June, 2013 for supplies made against Purchase Order dated 6th May, 2013; (b) dated 16th August, 2013, 16th August, 2013, 16th August, 2013, 19th August, 2013, 28th August, 2013, 28th August, 2013 & 28th August, 2013 for supplies made against Purchase Order dated 26th July, 2013; and, (c) dated 16th October, 2013, 16th October, 2013, 27th October, 2013 & 27th October, 2013 for supplies made against Purchase Order dated 1st October, 2013, of the total value of Rs.2,34,77,082/-; (vi) that though the payment against the invoices was to be made within sixty days of delivery and the defendant was otherwise liable to pay interest @ 24% per annum but the defendant paid only a sum of Rs.1 lakh in May, 2014; (vii) that after adjusting an amount of Rs.28,767/- against Debit Note dated 19th August, 2013 and an amount of Rs.2,061/- against Debit Note dated 28th August, 2013 raised by the defendant, a principal amount of Rs.2,33,46,254/- with interest is due from the defendant to the plaintiff; (viii) that the defendant, vide email dated 12th September, 2014 admitted liability to the plaintiff in the sum of Rs.2,34,46,254/-; (ix) that the defendant is also liable for interest as agreed; (x) that as on the date of institution of the suit, besides the principal amount of Rs.2,33,46,254/-, a sum of Rs.1,72,89,175/- was due from the defendant to the plaintiff towards pre-suit interest @ 24% per annum i.e. a total sum of Rs.4,06,35,429/-. 4. The suit was entertained under Order XXXVII of the CPC and summons for appearance and on the defendant entering appearance, summons for judgment were issued to the defendant. 5. The Part-I file, besides the plaint, contains an affidavit dated 1st July, 2017 filed by the defendant in support of the leave to defend application, besides the reply of the plaintiff thereto. The counsel for the defendant during the arguments has referred to the said affidavit. However, Part-II file containing the applications contains a separate application for leave to defend and affidavit in support thereof. The counsel for the defendant has explained that the defendant had earlier filed an affidavit only and was subsequently permitted to file an application. 6. Though this is a technical default on the part of the defendant but since the counsel for the plaintiff has not ra