TMI Blog2005 (8) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant No. 1. The defendants had approached the plaintiff for supply of the item being sold by the plaintiff. The supplies was made as per requirement of defendant No. 1 and invoices were issued for such supplies. Number of cheques were issued by defendants in favor of the plaintiff. The plaintiff presented the said cheques on the respective due dates, but they were dishonoured by the bankers due to `insufficiency of funds'. It was thereafter that Mr. Satish Chugh had died. Defendant No. 2 had met plaintiff in January, 2001 and during the said meeting, it was confirmed that the partnership business is being continued by defendants 2 and 3 and defendant No. 2 issued fresh cheques towards the amount due and payable to the plaintiff with the assurance that the cheques now would be honoured on presentation. Copy of the letter dated 28th January, 2005 acknowledging the receipts of the said cheques have been placed on record. Defendant No. 2 had also requested the plaintiff that in the meanwhile the supplies of the material may be continued so as to ensure that the cheques already issued are not dishonoured on presentation. However, in violation to the assurance given the defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The defendant No. 2 having been served with the summons of the suit, then filed IA 9208/2002 under Order 37 Rule 3(5) read with section 151 CPC seeking unconditional leave to defend the suit. IA 2830/2003 was the other application filed on behalf of defendant No. 3 under the same provisions seeking grant of leave to defend the suit. IA 2831/2003 is the another application by defendant No. 3 seeking condensation of delay in filing the IA No. 2830/2003. As all the above seven applications are one way or the other related to the basic question as to whether the defendants are entitled to grant of leave to defend unconditionally or otherwise and whether there should be any order of injunction against them in relation to their property, as prayed for by the plaintiff. In IA 2831/2003, as already stated above, which is an application for condensation of seven days' delay in filing the application for leave to defend i.e. IA 2830/2003 by defendant No. 3, the reasons given that the applicant was served with the summons of the suit on 31st January, 2003 and the leave to defend application could be filed by 10th February, 2003. However, defendant No. 3 who is a widow of erstwhile partne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001 and an additional ₹ 3.0 lakhs (Rupees Three Lakhs) by 24th December, 2001. You also have agreed that you will try to clear another ₹ 4.0 (Rupees Four Lakhs) - in addition to above two payment schedules - before 27th December 2001. We have promised to look into supplying you the material once you meet your above assurances as per the time schedules given above and on clearing 50% of total due of ₹ 19.5 lakhs (rupees Nineteen lakhs and Fifty thousand approx.). As discussed in the meeting, we want you to honour your assurances without you going back any more on your assurances. This letter is sent in duplicate. As discussed, we request you to sign at the place indicated as token of your agreement and return a copy for our records. 4. There are various letters placed on record by the plaintiff but all these are letters written by the plaintiff to defendant No. 1 relating to dishonouring of cheque, issuance of fresh cheques and the commitments made by the defendants to the plaintiff. There is no other letter except the minutes dated 17th November, 2001 which has been signed or confirmed by the defendants. There is a statement filed by the plaintiff on rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o make the payment of any amount, as alleged in the said letter and the document is a forged and fabricated document and has not been signed by defendant No. 2 on behalf of defendant No. 1 and the suit is not maintainable. Though the defendants have admitted in the application for leave to defend that the goods worth ₹ 25 lacs to ₹ 30 lacs were received by them, no detail thereof whatsoever has been given as to how much goods were sold and how much goods are still lying with the defendant. Not even a single letter has been placed on record which the defendant might have written to the plaintiff requiring them to leave the defective goods as alleged. Now in the application under consideration another important factor is that despite specific averments made in the plaint and copy of the notices have been furnished to the defendants, the defendants have nowhere denying the receipt of the notices dated 30th March, 2002 as well as 1st April, 2002 wherein a specific reference has been made to the meeting dated 16.11.2002 and the minutes recorded by the parties on 17th November, 2001. It is obligatory on the part of the defendants to disclose true facts in his application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 Delhi 369, Minerals and Metals Trading Corporation Ltd. v. Dimple Overseas Ltd. and Reliance Industries Ltd. v. Imperial Pigments (P) Ltd. argued that the defense put forward by the defendant is totally frivolous, false and practically a moonshine. The transactions are purely commercial and the normal conduct of the party in such commercial transactions should be taken into consideration. Further it was contended that in the facts of the present case, the supply of the goods were admitted and the disputes raised with regard to the quality of the goods by the defendant is an afterthought for avoiding the payment as no such endorsement was even made on the invoices which were received by the defendant over a long period. The defendants having acknowledged their liability in the letter dated 17th November, 2001 and the invoices where material was received, no penumbra for speculation remains and the plaintiff would be entitled to the decree. The stand taken by defendant No. 2 is not trustworthy and in fact is not supported by any correspondence between the parties. The defendant, in fact, has not cared to place single letter on record over these long years questioning the quality of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement in the Hon'ble Court stating therein that defendant No. 2 will not transfer, alienate, part with or create any third party interest in respect of property No. 1484, S.P. Mukherjee Marg, Delhi, as such the application is not maintainable. In view of this statement made by defendant No. 2 nothing survives in this application and the same can be disposed of by binding the respondent/defendants to their statements and no further orders are called for in this application. 6. For the reasons afore-recorded, I find no merit in the applications for leave to defend filed by defendants 2 and 3. The same are dismissed. In terms of the letter dated 17th November, 2001 which is the written contract between the parties and is the foundation of the suit of the plaintiff under Order 37 of the Code, the admitted liability is ₹ 19.5 lacs and as such plaintiff cannot claim an amount higher than the amount mentioned in this letter and even the plaintiff is not entitled to the principal amount of ₹ 20,37,376.52p as claimed in the plaint, but would be entitled to get only a sum of ₹ 19.5 lacs on account of principal. In regard to interest, the written contract between th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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