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2017 (5) TMI 1721 - HC - Indian LawsCondonation of delay of 25 days in filing the leave to defend - plea of defendants is that there is no written contract between the parties and, therefore, the case is not covered under Order 37 of CPC - HELD THAT:- There is no dispute to the fact, in the present case, that the defendants had placed an order upon the plaintiff and as per the practice, followed by both for a long period, the defendants paid advance money equivalent to 50% of the total value of the goods for which invoices were raised. There is also no dispute that the goods were supplied under these invoices to the defendant and thereafter commercial invoices were raised by the plaintiff. On examination of the relevant document, it is clear that the contentions and arguments of plaintiff find support from these documents. The alleged Distributorship Agreement (Article 2.03 & Appendix A) clearly envisages that it was not an exclusive Distributorship Agreement and was valid for 2 years only. The defendants have failed to place on record any other documents to show that the plaintiff or its sister concern had entered into an exclusive Distributorship Agreement with it. Defendants cannot withheld the money with the object of pressurising the plaintiff to enter into any agreement. Once it has, against invoices, released the advance money (50% of the value) and received the good without any demur or complaint, the defendants are liable to pay the balance due amount raised by plaintiff against commercial invoices. The invoices, as is clear from the document itself, are a valid contract between the parties. It contains offer, acceptance and the consideration of such agreement as defined in Section 2(h) of the Indian Contract Act, 1872. The defendants have also argued that where there is a violation of the legal provisions, a decree in terms of Order 37 CPC cannot be passed and even the suit is liable to be dismissed. It is argued that the plaintiff had failed to comply with provisions of Order 37 Rule 3(4) read with Appendix B Form No. 4A as summons of judgment is not supported by the affidavit of the plaintiff and a defective summons of judgment was served on defendants and defect cannot be cured and so suit be treated as normal suit and no decree can be passed under Order 37 CPC. In the present case, as is evident, the plaintiff even did not make any effort to substitute the affidavit of its Advocate with that of its own - it is apparent from the totality of facts and circumstances of the case, more particularly the issue that the summons for judgments suffers with legal infirmity, it is a fit case to grant leave to defend to the defendants. Application disposed off.
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