TMI Blog2003 (3) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... ania and Laxman Ltd., 1998 (3) Apex Decisions (Delhi) 141. I may only add that if the transaction in question is covered by a single invoice or bill the party relying on it should be in a position to indubitably disclose that the adversary's attention was specifically drawn to the terms on the back of the bill, and that it consented to be bound to those terms by failing to lodge any demur. One must not lose sight of the reality that a person does not always read a bill or invoice from its start to its finish, especially the reverse side. Where the bill is preceded by a delivery challan which does not contain all the terms of the transaction, this presumption may be an exception. However, where there have been a series of transactions in respect of which identical terms are printed on the bill, especially where both parties are commercial entities, this presumption would become irresistible. In the case at hand, several supplies have been made and each one is covered by identical and replicated terms. I am in no manner of doubt that a written contract can be found in these invoices such as would sufficiently attract the rigours of Order xxxvII of the C.P.C. 3. The next point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing him to try to prove a defense . On the basis of these pronouncements, I am of the view that if the Court is presented with an acknowledgement of debt by the Defendant, no penumbra for speculation remains and the Plaintiff is entitled to leave to sign judgment. 4. The Plaintiff has filed the Invoices on which the suit is founded. Thirty-two Invoices pertain to M/s. Sai Polymers, 307, Guru Hari Kishan Nagar, Pashim Vihar, New Delhi-110041, but this party has not been imp leaded as a Defendant. There are several Invoices pertaining to Defendant No. 1. The Plaintiff has also filed a letter dated 1.3.1995 addressed to it and authored by Defendant No. 2 on behalf of Defendant No. 1. In this letter Defendant No. 2 has voluntarily assumed the responsibility of IMPERIAL PIGMENTS PVT. LTD. Business with RELIANCE INDUSTRIES LTD. IN P.V.C. RESIN THE ENTIRE LIABILITY IS MINE. The Business is done through M/s. Aqua Cross Enterprises Pvt. Ltd. . Similarly, the Plaintiff has filed another letter which has been authored by Defendant No. 2 on behalf of Defendant No. 1 and is dated 24.8.1995. In this letter the failure to make payment was recorded and fifteen cheques were forwarded with a req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord the original cheques of Defendant No. 1 signed by Defendant No. 2 for a total of ₹ 1.90 crores, all of which have not been honoured. 5. Mr. Rajiv Sawhney, learned Senior counsel appearing on behalf of both Defendants, has contended that these letters do not constitute an enforceable guarantee as there is no consideration therefore and no Stamp Duty has been paid thereon. It has also been contended that M/s. Aqua Cross Enterprises Private Limited is a necessary party since in the plaint itself it has been averred that the Plaintiff had appointed various Del Credre/ Consignment Agents, one of whom was M/s. Aqua Cross Enterprises Private Limited. It is his further submission that deliveries were not made to the Defendants by the Agent and documents were drawn up only to puff-up and exaggerate the sales allegedly made by the said Agent. 6. In this context reliance has been placed by Mr. Valmiki Mehta, learned Senior counsel appearing on behalf of Plaintiff, on a decision rendered by S.N. Kapoor, J. in Daya Chand Uttam Prakash Jain Another v. Santosh Devi Sharma, where it has been held that a summary suit predicated on an acknowledgement signed by one partner is main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the agent was not necessary. 9. Reliance has also been placed on certain letters of Defendants placed on the record as annexures to the affidavit of Dr. Anis Ansari, who is stated to be one of the Directors of Defendant No. 1. It has been deposed that by registered letters dated April 20, 1995 to the Managers of the Bank of Rajasthan and the Union Bank of India they had been informed that the authority of Mr. K.K.Karnani has been withdrawn. This affidavit further states that this information was also conveyed to the Plaintiff by the Defendant's letter dated 20.4.1995. The Defendant's case is that Defendant No. 1 never placed any order for supply of goods upon the Plaintiff after 24.4.1995 and therefore no amounts are payable. It has also been averred that since Defendant No. 2 had ceased to be the authorised signatory of Defendant No. 1 any cheques issued by him after 24.4.1995 was on his own behalf and not on behalf of the answering Defendant No. 1. Defendant No. 1 has also denied any connectivity with Messrs Sai Polymers, Chemical India or Malav Polyers, and accordingly has disowned any assumption of liability for the outstandings of these firms. This is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooks; secondly why were these cheques dishonoured on the grounds of insufficiency of funds; and thirdly why, in the hiatus between 24.4.1995 and the date of these cheques, was the old regime so far as Defendants are concerned, been restored. No satisfactory explanation is forthcoming on these issues. The defense that the authority of Defendant No. 2 had been withdrawn falls in the category of moonshine. 10. It is also being contended by Mr. Rajeev Sawhney, learned senior counsel for the Defendants that a summary suit under Order xxxvII C.P.C. is not permissible on the basis of a running account. This case has not been set up in either of the affidavits of the Defendants seeking Leave to Defend. Since it is legal in nature, I have considered it neverthless. In my opinion, keeping in view the pronouncements in Daya Chand Uttam Prakash Jain Another v. Santosh Devi Sharma (supra) this contention is not of substance and is rejected. Mr. Sawhney has also relied on Sections 25, 126, 127 of the Indian Contract Act. In the Plaint it has been pleaded that the Plaintiffs are entitled to claim interest at the rate of 24 per cent per annum as per the company's policy. Mr. Sawhney has c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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