In The Court Of Shri Raj Kumar … vs M/S M.K. Furncraft Pvt. Ltd on 5 July, 2012

In The Court Of Shri Raj Kumar … vs M/S M.K. Furncraft Pvt. Ltd on 5 July, 2012
Author: Sh. Raj Tripathi
      IN THE COURT OF SHRI RAJ KUMAR TRIPATHI,
        ADDITIONAL SENIOR CIVIL JUDGE (SOUTH),
                  SAKET COURTS, NEW DELHI
CS No.  47/2012
ID No.  02406C0028472012
National Granites
Through its partner
Mr. Dhiraj Gulecha,
D­9/5, Okhla Industrial Area,
Phase­I, New Delhi 110 020.
                                              Plaintiff
                              Versus

   1. M/s M.K. Furncraft Pvt. Ltd.,
      125, Shahpur Jat, 
      New Delhi 110 049.
      Also at:
      Vatika City, Sector­49,
      Sohna Road, Gurgaon, Haryana.
   2. Mr. Nitin Kohli, Director
      M/s M.K. Furncraft Pvt. Ltd.,
      125, Shahpur Jat, 
      New Delhi 110 049.
   3. Mr. Seetu Kohli, Director
      M/s M.K. Furncraft Pvt. Ltd.,
      125, Shahpur Jat, 
      New Delhi 110 049.
      Both also R/o D­33, Gulmohar Park,
      Delhi 110 049.
                                              Defendants

CS No. 47/2012                               Page No. 1 of 9
 DATE OF INSTITUTION              :  04.02.2012
DATE OF HEARING ARGUMENTS ON
APPLICATION FOR LEAVE TO DEFEND  :  05.07.2012
DATE OF PRONOUNCEMENT OF JUDGMENT:  05.07.2012

 SUIT UNDER ORDER XXXVII OF CPC FOR RECOVERY OF 
  RS. 1,96,155/­ (RUPEES ONE LAC NINTY SIX THOUSAND 
             ONE HUNDRED FIFTY FIVE ONLY)


                                 JUDGMENT

1. This judgment shall decide the application under Order XXXVII Rule 3 (5) of The Code of Civil Procedure for leave to defend the suit filed by the defendants.

2. The present suit is a suit under Order XXXVII of The Code of Civil Procedure (in short “CPC”) filed by the plaintiff for recovery of Rs. 1,96,155/­ against defendants along with interest on the principal amount @ 18% per annum from the date of institution of the suit till realization and cost of the suit.

3. Summons of the suit was issued to defendants. The defendants were served with the summons of the suit in prescribed format under Order XXXVII of CPC on 02.03.2012. The defendants entered their appearance on 05.03.2012 i.e within the stipulated period as prescribed in CPC.

4. Summons for judgment in the prescribed format was served upon the defendants on 23.03.2012. The defendants after receiving the summons, moved an application under Order XXXVII Rule 3 (5) CPC for grant of leave to defend the suit.

5. Brief facts of the case of plaintiff is that the defendant no. 1 company placed an order vide purchase order dated 08.04.2010 for 3000 sq. ft Black Granite having description NG­138 (polished) @ Rs 85 per sq. ft amounting to Rs. 2,60,100/­. The plaintiff supplied 1424.632 sq. ft. Black Granite as per the specification on 09.04.2010 and raised invoice/bill no. 007 of Rs. 1,25,766/­ for supply of material. The defendants duly acknowledged the receipt of materials and made payment against the goods supplied. According to plaintiff, the defendant no. 2 informed the plaintiff firm to hold the balance supply of material till further communication. On 04.05.2010, the defendant no. 2 called up at the office of plaintiff firm and asked it to supply the balance material of purchase order dated 08.04.2010. The plaintiff supplied 1685.90 sq. ft Granite as per the specification of the order placed on 08.04.2010 and raised bill no. 022 dated 05.05.2010 for an amount of Rs. 1,49,168/­ against Form ‘C’. The defendants were supposed to make payment within 30 days from the date of delivery of goods but they failed to pay the amount. The defendants also refused to issue Form ‘C’ to the plaintiff. The plaintiff got issued legal notice dated 17.06.2011 through its advocate to defendants and demanded bill amount with interest @ 18% per annum within 15 days from the receipt of notice. The defendants even despite receipt of notice failed to make payment.

6. In the application for leave to defend filed by the defendants, it is stated that plaintiff is not entitled to recover the amount claimed in the suit due to breach of contract. They have substantial defence to defend the suit. The defendants have admitted for placing the purchase order on the plaintiff on 08.04.2010 for supply of 3000 sq. ft Black Granite having description NG­138 (polished) @ Rs. 85 per sq. ft. amounting to Rs. 2,60,100/­. The allegation of defendants is that on 09.04.2010, the plaintiff supplied 1424.632 sq. ft Black Granite at the site without verification of quality of Granite and without obtaining any receipt from the Site Project Supervisor. The defendants are stated to have made complaint regarding inferior quality of stone to the plaintiff. The plaintiff despite assurance to the defendants failed to replace the defective stone within a period of 15 days. The defendants have admitted to have paid an amount of Rs. 1,25,766/­ to plaintiff against bill no. 007. It is alleged that on 05.05.2010, the plaintiff dumped black granite at the site of Vatika City without verifying the specification, measurement and without obtaining signature of Site Supervisor. The defendants requested the plaintiff to replace the total defective granite from the site but the plaintiff failed to replace the same, which resulted into cancellation of contract of the defendant with Vatika City and Vatika City has debited a sum of Rs. 2,14,651/­ on 03.01.2012 from the account of the defendants in lieu of replacement and rectification of stone works. The defendants have denied rest of the averments made in the suit. It is prayed to allow the application and grant unconditional leave to defend the suit.

7. The plaintiff has contested the application of defendants by way of filing written reply wherein it is stated that the defendants never raised issue of supply of inferior quality material with the plaintiff at any time. It is stated that the material supplied by the plaintiff were duly received by the person incharge on the project site deputed by the defendants and by Vatika Limited. The plaintiff has stated that the defendants have no defence and the defence allegedly set up by them is illusory, sham and practically moonshine, therefore, defendants are not entitled for leave to defend the suit. Rest of theaverments made in the application of defendants has been denied by plaintiff.

8. I have heard and considered the submissions advanced by learned counsel for both the parties and gone through the entire material available on record.

9. The purchase order dated 08.04.2010 placed by defendants upon the plaintiff for supply of 3000 sq. ft. black granite having description NG­138 (polished) @ Rs. 85 per sq. ft amounting to Rs. 2,60,100/­ is admitted by defendants. The plaintiff supplied 1424.632 sq. ft black granite to defendant company on 09.04.2010 and raised invoice/bill no. 007. The defendants made payment against the said bill. The plaintiff on the instructions of the defendants supplied the balance goods i.e 1685.90 sq. ft black granite on 05.05.2010 and raised bill no. 022 for an amount of Rs. 1,49.168/­. The defendants have failed to make payment against the said invoice till date.

10. The first defence of defendants is that the plaintiff supplied the material without verification of quality of granite and without obtaining any receipt from the Site Project Supervisor. The defendants have placed nothing on record to show that they ever made any complaint to the plaintiff for supply of inferior quality of stone. The defendants made payment for the supply of goods against the first bill i.e bill no. 007 but withheld the payment against the second invoice i.e bill no. 022, which is in dispute in this case. The defence of supply of inferior quality of material has been taken by the defendants for the first time. The plaintiff filed the present suit on 04.02.2012. The bill was raised after supply of goods to defendants on 05.05.2010. There is nothing on record to suggest that within a period of two years, the defendants ever made any complaint to plaintiff for replacement of the defective goods. Even if it is presumed that the plaintiff despite assurance failed to replace the defective goods, the defendants have filed nothing on record to show that they ever took any legal action against the plaintiff for supply of defective materials. In these circumstances, the defence of defendants is found to be without any merit. Accordingly, same is rejected.

11. The next defence of defendants is that due to non replacement of total defective granite from the site by the plaintiff resulted into cancellation of contract of defendants with Vatika City and Vatika City debited a sum of Rs. 2,14,651/­ on 03.01.2012 from the account of defendants. The contract of defendants with Vatika City was cancelled in the year 2012. The plaintiff supplied the material todefendants in the year 2010. There is nothing on record to suggest that due to the act of the plaintiff, the contract of defendants was cancelled with Vatika city. There is further nothing on record to show that the plaintiff was responsible for cancellation of contract of defendant with Vatika City. The contract between Vatika City and defendants is a separate issue. In this case, the dispute is between plaintiff and defendants. The plaintiff has supplied the material to the defendants. The defendants are under an obligation to make payment against the invoice. The defendants have placed nothing on record to show that they have any valid defence in their favour for withholding the amount claimed in the suit.

12. In view of discussion made above, this court is of the considered view that the defendants have failed to show any valid defence in their favour. They have also failed to raise any triable issue in this case. The defence taken by the defendants is illusory, sham and moonshine. No ground for grant of leave to defend the suit is made out. Accordingly, the application of defendants moved U/O XXXVII Rule 3 (5) r/w section 151 CPC is dismissed.

13. Consequent to dismissal of application of defendants U/O 37 Rule 3 (5) r/w section 151 CPC, the suit of the plaintiff is decreed with costs. The defendants are jointly and severely directed to pay a sum of Rs. 1,96,155/­ to the plaintiff. They are further directed to pay interest on the principal amount i.e Rs. 1,49,168/­ @ 12% per annum from the date of filing of the suit till actual realization of decreetal amount. Decree sheet be prepared. File be consigned to record room.

(Announced in Open Court                 (RAJ KUMAR TRIPATHI)
on 05.07.2012)                  Additional Senior Civil Judge (South)
                                           Saket Courts, New Delhi.

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