TMI Blog2014 (11) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... that a judicial authority before which, an action is brought in a matter, which is the subject matter of an Arbitration Agreement shall be referred to the Arbitration - there is an existence of arbitration clause as per the settled law and conditions between the parties and the dispute raised in the suit relates to the subject matter of the Arbitration and the dispute be referred to arbitration. Having considered the undertaking/affidavit executed by the defendant No.2 as well as the dishonouring of the cheques issued by the said defendant, since the presumption is that the defendants have admitted their liability of the outstanding amount of the plaintiff, thus there is no dispute between the parties whereby the defendants have to pay the amount to the plaintiff - In the present case, since there are written documents raising presumption against the defendants with regard to the undertaking and dishonouring of the cheques, no ground has been made out by the defendants to grant the leave to defend in the present case. The application for leave to defend as well as the application under Sections 5 and 8 of the Act are dismissed. - I.A. Nos.17592/2011 & 17593/2011 in CS(OS) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all make the payment of aforesaid outstanding amount as per following: Amount of ₹ 500000/- will be paid in the month of October, 2010 vide cheque No.440144, 440145, 440146, 440147, 440138 vide dated 30/10/2010 of ₹ 100000/- each respectively and balance amount of ₹ 12,58,865/- will be paid in the month of December, 2010 and January, 2011. 5. That, I/We hereby undertake that I/We shall not dishonor the Cheque(s) issued to pay the said outstanding amount. 6. I hereby undertake that if I/We fail to make the payment of said outstanding amount within the period as mentioned above then said company shall free to take legal action in the courts of Delhi to recover the outstanding amount. (Deponent) Verification I/We the above named deponent do hereby affirm and verify that I/We have voluntarily made the above affidavit and its contents are true to best of my knowledge. Verified at Delhi on this 13th day of October, 2010. (Deponent) However, the aforesaid cheques were dishonoured on presentation due to insufficiency of funds. 4. It is stated that the defendants have not paid the valid dues of the plaintiff inspite of due service of the legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the plaintiff from Haryana Freight Carrier, Vidhyawati Building, Main G.T. Karnal Road, Kundli, Distt. Sonipat (Haryana) and were received by the defendants at Karnal (Haryana) and all the payment were also made in Karnal. Hence, no cause of action arises within the jurisdiction of this Court. (iii) Except for the first few months, the goods supplied by the plaintiff was not up to the standards and most of the goods were either defective or in damaged condition and the goods worth ₹ 12,00,000/- were returned to the plaintiff in the month of March, 2009. The defective/damaged goods worth ₹ 10,00,000/- are still lying with the defendants for which the defendants had already made the payment to the plaintiff and despite several requests and reminders the plaintiff had neither replaced the goods nor adjusted the amount of those goods. The defendants received various written complaints with regard to the quality of goods supplied by the plaintiff from various customers/ dealers and the same were forwarded to the plaintiff also but the plaintiff failed to look into that. The plaintiff supplied goods, on the contrary plaintiff never received those goods mentioned in the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendants while arguing the application for leave to defend. Thus, the contention of the defendants on this ground is rejected. Even otherwise, nothing contrary is available on record to show that the statement made in para 13 of the plaint is false and incorrect. 9. As far as merit of the suit is concerned, the Supreme Court in M/s. Mechalec Engineers Manufacturers v. M/s. Basic Equipment Corporation, reported in 1977 SC 577 has evolved following principles after comprehensive review of the authorities on the subject:- a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defence. b) If the defendant raises a triable issue indicating that he has a fair or bonafide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend. c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend that is to say, although the affidavit does not positively and immediately make it clear that he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no application in law. The present case is clearly covered in guiding principles of (d) and (e) of the judgment of M/s Mechalec Engineers Manufacturers (supra). The defendants have no defence who are not entitled for leave to defend. 14. Lastly the defendants counsel has referred to an application being I.A. No.17593/2011 under Sections 5 and 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act ) which has been filed by the defendants wherein it is stated that as per terms and conditions settled between the parties, all disputes are subject to Arbitration only. The settled terms and conditions agreed between the parties are printed on every invoice raised by the plaintiff and accepted by the defendants. 15. It is stated that as per Section 5 of the Act, no Court shall have jurisdiction to intervene where there is an arbitration clause/ agreement. Further as per Section 8 of the Act, it is clear that a judicial authority before which, an action is brought in a matter, which is the subject matter of an Arbitration Agreement shall be referred to the Arbitration. Thus, there is an existence of arbitration clause as per the settled law and co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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