TMI Blog2018 (5) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... laint, are defective. Once that is so, the provision of Section 42 of the Sale of Goods Act applies and hence it was not open to the appellants/defendant nos.1 and 3 to contend that payment could not be claimed by the respondent no.1/plaintiff on account of having supplied the defective goods. Unless a defendant in an Order XXXVII CPC suit raises genuine triable issues, leave to defendant cannot be granted on the basis of the defences which are frivolous and vexatious - In the present case the defence of the defective goods is completely frivolous and vexatious and the defence does not raise genuine triable issue in view of Section 42 of the Sale of Goods Act. Petition dismissed - decided against petitioner. - RFA No.401/2018 - - - D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent no.1/plaintiff having supplied goods to the partnership firm being the appellant no.1/defendant no.1 and of which firm the appellant no.2/defendant no.3 was the partner. Goods supplied are pen drives and memory cards used in computers. The details of the invoices along with their amounts are stated in para 4 of the plaint and this para 4 reads as under:- 4. That the defendants have purchased from the plaintiff, the goods vide invoices no.1402112102 dated 08-07-2014 invoice no.1402112519 dated 23-07-2014, invoice no.1402112520 dated 23-07- 2014, invoice no.1402112543 dated 24-07-2014, invoice no.1402112544 dated 24-07-2014, invoice no.1402112893 dated 06-08-2014 amounting to ₹ 13,66,300/-, 1109,152.28/-, 7,37,803.51/-, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndants have admitted the business transactions with the plaintiff during the period from 2010 to 2015 and the goods received from the plaintiff. It was therefore incumbent on the part of the defendants to plead as to how they have made the payment to the plaintiff towards the receipt of the non-defective goods. Besides stating that the defendants have paid the amount of the non-defective goods received from the plaintiff and returned the defective goods, the defendants have filed no document to substantiate the same. The defendants have even not filed any document on record to substantiate the contention that they had already returned the alleged defective goods . (underlining added) 7. To the aforesaid reasoning of the trial court, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court in the judgmentin the case of IDBI Trusteeship Services Ltd. Vs. Hubtown Ltd., (2017) 1 SCC 568 , and the relevant paras of which judgment, being paras 17 to 17.6, read as under:- 17. Accordingly, the principles stated in paragraph 8 of Mechelec's case will now stand superseded, given the amendment of Order XXXVII Rule 3, and the binding decision of four judges in Milkhiram's case, as follows: 17.1. If the defendant satisfies the Court that he has a substantial defence, that is, a defence that is likely to succeed, the Plaintiff is not entitled to leave to sign judgment, and the Defendant is entitled to unconditional leave to defend the suit. 17.2 If the defendant raises triable issues indicating that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff is admitted by the Defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the Defendant in court. 10. A reading of the aforesaid paras shows that unless a defendant in an Order XXXVII CPC suit raises genuine triable issues, leave to defendant cannot be granted on the basis of the defences which are frivolous and vexatious. In the present case the defence of the defective goods is completely frivolous and vexatious and the defence does not raise genuine triable issue in view of Section 42 of the Sale of Goods Act. 11. No other point or issue is urged in this appeal. 12. In view of the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
