IN THE COURT OF SH. Judge's name (first) Judge's surname, LD. DISTRICT AND SESSION JUDGE, SOUTH EAST, SAKET COURTS, NEW DELHI.
IN THE MATTER OF:
Plaintiff's namePLAINTIFF
VERSUS
First defendant's name & ORS.: DEFENDANTS
I N D E X
| 1. | Application under Order 37 Rule 3(5) read with Section 151 of the C.P.C. seeking leave to defend the captioned suit. | |
DEFENDANT
DELHITHROUGH
DATED
(Date of filing)
COUNSEL FOR THE DEFENDANT
Off: Counsel's office address
NEW DELHI -1100_
IN THE COURT OF SH. Judge's name (first), LD. DISTRICT AND SESSION JUDGE, SOUTH EAST, SAKET COURTS, NEW DELHI.
IN THE MATTER OF:
Plaintiff's namePLAINTIFF
VERSUS
First defendant's name & ORS.: DEFENDANTS
APPLICATION ON BEHALF OF THE DEFENDANTS UNDER ORDER 37 RULE 3(5) READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908, SEEKING LEAVE TO DEFEND THE CAPTIONED SUIT.
MOST RESPECTFULLY SHOWETH:
1.That the Defendants have received the application for summons for judgment in the aforesaid suit by courier; however, no notice, summons or direction of this Hon'ble Court requiring the Defendants to file leave to defend within ten days has been served. The present application for leave to defend is being filed as a matter of abundant caution and within the prescribed period.
2.That at the outset it is submitted that the Defendants have been served with the summons; however, the plaint and the annexures supplied to the Defendants are illegible, appear incomplete, and some of the annexures are missing while others are dim and unreadable. The Defendants are filing the present application for leave to defend before this Hon'ble Court on the basis of the documents supplied by the Plaintiff, and the Defendants reserve their right to file an additional application for leave to defend once legible copies of the plaint and all the annexures are supplied by the Plaintiff.
3.That the Defendants are filing the present application for leave to defend before this Hon'ble Court on the basis of the documents supplied by the Plaintiff, and the Defendants reserve their right to file an additional application for leave to defend.
4.That the present suit, under reply, projects a scenario which is not only disturbing but also has the potential to create a stir compelling one to ponder, in a state of disquiet, how an unscrupulous, unprincipled and deviant suit can be ingeniously and innovatively designed, in a nonchalant manner, to knock at the doors of this Hon'ble Court.
5.That by instituting the present suit, the Plaintiff treats this Hon'ble Court as a laboratory where multifarious experiments can be carried out, and where such skilful persons can adroitly abuse the process of the Court at their own will and desire by painting a canvas of agony through assiduous assertions made in the suit, although their real intention is to harass the Answering Defendants.
6.That it is further submitted that the very crux of the suit, which has caused bewilderment to this Hon'ble Court, is founded upon wrong facts and conjectures. It is further submitted that, as per the contents of the summons for judgment, the same has been verified and given authenticity by Mr. Plaintiff's representative's first name Plaintiff's representative's surname, who is described as the business leader of the Plaintiff Company. However, the Plaintiff Company is a company incorporated under the provisions of the Companies Act, having its registered office at Plaintiff company's registered office address, which is beyond the territorial jurisdiction of this Hon'ble Court. It is further submitted that the Plaintiff Company is stated to be acting through its Authorised Representative / Business Leader, namely Mr. Plaintiff's authorised representative's name, and the affidavit annexed along with the summons for judgment discloses only his personal, residential address. Further, Mr. Plaintiff's representative's name is the business leader of Name of company the representative actually belongs to and not of the company arrayed as the Plaintiff in the memo of parties.
7.Further, neither the summons for judgment nor the amended memo of parties discloses the correct name of the Defendant Company; as such, there is no privity of contract between the Plaintiff Company and the Defendant Company, the correct name of the Defendant Company being Correct name of the defendant company (first part) Correct name of the defendant company (second part) Pvt. Ltd.
8.It is further submitted that, on a perusal of the memo of parties as filed along with the summons for judgment and the suit, it clearly reflects that the registered office of the Plaintiff Company is at Plaintiff company's registered office city and its other office is at Plaintiff's other office city, whereas the address of the Defendant Company is at Defendant company's office city. Therefore, apart from the residential address of the alleged representative of the Plaintiff Company, not a single document pertains to the jurisdiction of this Hon'ble Court. It is further submitted that the residential addresses of the persons or employees of a company are not a relevant consideration for vesting territorial jurisdiction in the Courts at New Delhi. It is further submitted that even the averments in the plaint do not demonstrate how this Hon'ble Court would be vested with territorial jurisdiction to entertain the suit, which is founded solely on false pleas and averments.
9.It is further submitted that the summons for judgment, as received, does not disclose a proper cause of action and has been filed on wrong and absolutely incorrect facts, solely in order to mislead this Hon'ble Court. It is submitted that, as per the paragraph pertaining to the cause of action as alleged by the Plaintiff in the summons for judgment, the cause of action is limited to the purchase order dated Purchase order date, the opening of the irrevocable letter of credit dated Irrevocable letter of credit opening date, and further dates of Subsequent cause of action date and Further cause of action date. It is further submitted that, as per the alleged averments made by the Plaintiff in the suit under Order 37, the period of limitation would commence from the date on which the money became due, i.e., the date on which the goods were supplied, which is Irrevocable letter of credit opening date as alleged by the Plaintiff. Accordingly, as per the provisions of the Limitation Act, and taking into account the alleged date on which the account was demanded by the Plaintiff Company, the present suit of the Plaintiff is barred by the provisions of the Limitation Act, and hence the present suit is void ab initio.
10.Further, the cause of action has to be considered with reference to the factual situation that gives rise to an enforceable claim, if any; it must take into consideration the entire averments contained in the plaint, and the Court must test whether, on being read collectively, those averments constitute a bundle of facts forming the basis for the institution of the suit.
11.It is further submitted that the position of law that clearly emerges is that the expression "cause of action" means and includes every circumstance resulting in a breach of right, or the immediate occasion for a party to react. The said expression takes within its fold the whole bundle of material facts which a party must prove in order to succeed.
12.It is further submitted that the determination of whether a particular fact constitutes a cause of action depends upon the facts and circumstances of each case; while considering the facts averred, the Court has to consider the substance of the matter and not the form. It is further submitted that merely because a minuscule part of the cause of action arises within the Court's jurisdiction, the same cannot be taken into consideration, and such a suit ought to be dismissed by this Hon'ble Court straightaway.
13.It is further submitted that, as per the settled law, "cause of action" is generally understood, in civil proceedings, as every fact which, if traversed, would be necessary for the Plaintiff to prove in order to support his right to a judgment of the Court. It is the bundle of facts which, taken together with the law applicable to them, gives the Plaintiff a right to relief against the Defendant. Each and every fact pleaded in a suit does not, ipso facto, lead to the conclusion that those facts give rise to a cause of action within the Court's territorial jurisdiction, unless the facts pleaded have a nexus or relevance with the lis involved in the case. Facts which have no bearing on the lis or dispute involved in the case do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned.
14.It is further submitted that this Hon'ble Court does not have jurisdiction to try the present suit, and the assumption of jurisdiction is not just and proper. The contention in the plaint that the registered address of the Defendant is at New Delhi is false. This is evident from the fact that the summons for judgment, as well as the address mentioned in the Memo of Parties, clearly reflect the registered office of the Defendant Company at City where the registered office of the Defendant Company is situated, and the Memo of Parties filed by the Plaintiff contains no mention of any Delhi address of the Defendant Company. In order to obtain a decree by hook or by crook, the Plaintiff has misled this Hon'ble Court on the question of the jurisdiction of this Hon'ble Court to try the suit.
15.It is further submitted that it is quite evident that neither the registered office nor the corporate office of the Plaintiff is situated in Delhi, and the position is similar with the Defendant, whose registered office is not situated within the jurisdiction of this Hon'ble Court. It is further submitted that, in order to overcome the objection of territorial jurisdiction, the Plaintiff has relied upon the residential address of its authorised representative — and that too of some other sister concern company of the Plaintiff Company, which has no relationship with, and is not privy to, the answering Defendant. This is the sole ground on which the Plaintiff Company has filed the suit before this Hon'ble Court.
16.In Kensoft Infotech Ltd. v. R.S. Krishnaswami, 146 (2008) DLT 657, the principal office of the Defendant company was at Mumbai. It was found on facts that none of the Defendants resided, or carried on business, or personally worked for gain, within the jurisdiction of the Court at Delhi. Defendant No. 3 had a branch office at New Delhi along with twenty-three other branch offices all over the country. A reference was made to the judgments in Oil & Natural Gas Commission v. Utpal Kumar Basu, (1994) 4 SCC 711, and State of Rajasthan v. Swaika Properties, wherein it was held that the expression "cause of action" connotes a bundle of facts which gives the Plaintiff a right to relief against the Defendant, and that mere service of notice at the registered office of a company does not give rise to a cause of action within that territory unless the service of such notice was an integral part of the cause of action. It was noticed that cause of action means every fact which, if traversed, would be necessary for the Plaintiff to prove in order to support its right to a judgment of the Court. It was held that the location of the subordinate office of Defendant No. 3 at Delhi could not, ipso facto, vest the Court with territorial jurisdiction to decide the suit. Even the leave of the Court to sue the Defendants at New Delhi, as envisaged by Section 20(b) CPC, had not been sought.
17.It is further submitted that the Plaintiff alleges that invoices were issued from time to time in respect of the said transactions, forgetting the fact that a suit based merely upon invoices can never be maintainable under the provisions of Order 37 C.P.C.
18.It is further submitted that the suit is bad for misjoinder of parties. A letter of credit is an unconditional obligation undertaken by the banker who has issued the letter of credit to pay the beneficiary. There is no contract between the beneficiary and the bankers who issue the letter of credit.
19.In Federal Bank v. V.M. Jog Engineering, it was observed by the Supreme Court in paragraph 56 that "the contract of the Bank guarantee or the Letter of Credit is independent of the main contract between the seller and the buyer". Relying on this observation, it is contended that there is no privity of contract between Defendant No. 1 and the Plaintiff, since the claim is made against Defendant No. 1 in relation to a contract that the Plaintiff had with Defendant No. 2 and Name of the foreign contracting party (not a party to the suit), which is not even a party to the suit. Accordingly, it is contended that Defendant No. 1 is not a proper party to this suit. A reference has been made to the arbitration proceedings arising out of a suit filed by the Plaintiff, in which the Plaintiff chose to implead all the other parties as co-Defendants. It is contended that the present transaction is no different from the transaction which forms the subject matter of the said suit, where the dispute has ultimately been referred to arbitration. Therefore, the suit is bad for non-joinder of those parties.
20.A letter of credit is also different from a guarantee and is, therefore, not covered under Order Order number in CPC(2)(iii). Suits that can be filed under Order Order number in CPC of the Code of Civil Procedure are those which are based upon a bill of exchange, hundi, a liquidated demand, a written contract, or a guarantee. A suit by the beneficiary of a letter of credit cannot be filed under Order Order number in CPC, as there is no contract between the beneficiary of the letter of credit and the issuing banker.
21.There being no contract between the beneficiary–Plaintiff and the bankers–Defendants, Order Order number in CPC of the Code of Civil Procedure can have no application.
22.It is further submitted that the Plaintiff has not filed any affidavit in terms of Section 65B of the Evidence Act, 1872 in order to authenticate the veracity of the electronic records.
23.It is further submitted that, as per settled law, in the case of South East Asia Shipping Co. Ltd. v. M/s. Nav Bharat Enterprises Pvt. Ltd. & Ors., JT 1996 (3) S.C. 656, the Supreme Court held that the mere fact that the bank guarantee was executed at Delhi and transmitted to Bombay from Delhi does not constitute a cause of action for the Delhi Courts. A similar view was taken by the Division Bench of this Court in DLF Industries Limited v. ABN Amro Bank and others, 2000 (3) Arb. LR 600 (Delhi). The judgments in these cases apply in full force to the present case.
24.It is further submitted that the present application for leave to defend is also founded on the ground that certain discrepancies were found in the documents relating to the said services, and the same were communicated to the Plaintiff. On account of those discrepancies, the Defendant was entitled to refuse payment under the letter of credit. The second-fold submission on behalf of the Defendant is that the Plaintiff admittedly took back the documents for correcting the discrepancies and thereafter re-presented the documents after the expiry of the letter of credit on Date of expiry of the letter of credit. The Plaintiff has thereby admitted the existence of the discrepancies, and since the documents, after correction of the discrepancies, were re-presented only after the expiry of the letter of credit, the Plaintiff is not entitled to payment under the subject letter of credit. Reliance is placed on the judgment of the Supreme Court in United Commercial Bank v. Bank of India and Others, (1981) 2 SCC 766, and on the basis of the paragraphs of the said judgment set out hereinafter, it is argued that since banks deal only in documents, and since the documents presented in this case were discrepant, the Defendant was entitled to refuse payment under the letter of credit. The relevant paragraphs of the judgment of the Supreme Court in United Commercial Bank (supra) relied upon are paragraphs 39, 40 and 44 to 46, which read as under:
"39. The relevant authorities uniformly lay down that in dealing with commercial letters of credit the documents tendered by the seller must comply with the terms of the letter of credit, and that the banker owes a duty to the buyer to ensure that the buyer's instructions relative to the documents against which the letter of credit is to be honoured are complied with. The rights of a banker are described in HALSBURY'S LAWS OF ENGLAND, 4th Edn., Vol. 3, para 141 at p. 106:
"Unless documents tendered under a credit are in accordance with those for which the credit calls and which are embodied in the promise of the paying or negotiating banker, the beneficiary cannot claim against the paying banker, and it is the paying banker's duty to refuse payment. The documents must be those called for, and not documents which are almost the same or which will do just as well. The banker is not called upon to know or interpret trade customs and terms. It has been held that where the mandate is ambiguous and a paying banker acts in a reasonable way in pursuance of it, he may be protected. But this general rule cannot be stretched so far as to protect a banker who pays against documents describing goods in terms which are similar to, but not exactly the same as, those stipulated in the credit."
The description of the goods in the relative bill of lading must be identical to the description in the letter of credit; that is, the goods themselves must in each case be described in the same terms in both documents, even though the goods differently described in the two documents may in fact be the same. It is the description of the goods which is of paramount importance. The reason for this requirement is set out in Davis' LAW RELATING TO COMMERCIAL LETTERS OF CREDIT, 2nd Edn., p. 76, wherein it is stated:
It is not only the buyer who faces the risk of dishonesty or sharp practice on the part of the seller. For, in many instances, the banker looks to the goods for reimbursement of the whole or part of the amount he pays under the letter of credit. It is equally to his interests to ensure that such documents are called for by the letter of credit as will result in goods of the contract description being ultimately delivered. The buyer is not compelled to enter into the sales contract nor, is the banker compelled to issue the letter of credit. If either of these contracts is entered into then it is for the buyer and the banker respectively to safeguard themselves by the terms of the contract. Otherwise they must be prepared to bear any ensuing loss.
However, the liability thus imposed upon the issuing banker carries with it a corresponding right that the seller shall, on his part, comply strictly with the terms of the letter of credit, and the seller's obligations have been construed as strictly as those of the banker.
Reference has already been made to the statement of law in Halsbury's Laws of England, which appears in PAGET'S LAW OF BANKING, 8th Edn., p. 648, and, at the risk of repetition, the same may be reproduced, to the following effect:
Unless documents tendered under a credit are in accordance with those for which the credit calls and which are embodied in the promise of the intermediary or issuing banker, the beneficiary cannot claim against him; and it is the banker's duty to refuse payment. The documents must be those called for and not documents which are almost the same or which seem to do just as well.
40.In the light of these principles, the rule is well established that a bank issuing or confirming a letter of credit is not concerned with the underlying contract between the buyer and the seller. The duties of a bank under a letter of credit are created by the document itself; in any event, the bank has the powers and is subject to the limitations conferred or imposed by that document, in the absence of appropriate provisions to the contrary in the letter of credit.
44.The appellant bank was under a duty to its constituent, Name of the constituent / opener of the letter of credit, to scrutinise the documents, and could not be compelled to make payment, particularly when the description in the documents did not tally with that in the letter of credit. It was fully entitled to exercise its judgment for its own protection. When the appellant bank refused payment against the first lot of Number of documents in the first lot documents except "under reserve", and against the second lot of Number of documents in the second lot documents even "under reserve", the remedy of the plaintiffs was to approach the openers, namely Name of the constituent / opener of the letter of credit, to instruct the appellant bank to effect a change in the description of the goods from "Description of goods in the letter of credit" to "Description of goods in the tendered documents" in the letter of credit. Instead of adopting that course, the plaintiffs sought to get over the irregularity in the description in the documents tendered for payment by instructing their bankers, Plaintiffs bank name, to execute a letter of guarantee or indemnity. When the bills of exchange tendered to Name of the constituent / opener of the letter of credit were dishonoured upon presentation on Date of dishonour of the bills of exchange, the legal consequences necessarily followed as between the appellant bank and Plaintiffs bank name. There was an inevitable chain of events which could not be prevented by the grant of an injunction.
45.The appellant bank presumably knew little or nothing about Nature/type of the goods. Bankers are not dealers in Nature/type of the goods in a case such as this, but dealers in documents only. The appellant bank, as the issuing bank, was presented with documents and asked to pay a very large sum of money in exchange for them. Its duty was not to go out and determine, by physical examination of the consignments or by employment of experts, whether the goods actually conformed to the contracts between the buyer and the seller, nor even to determine, from its own knowledge or expert advice, whether the documents called for goods which the buyer would be bound to accept. The banker knows only the letter of credit, which is the sole authority to act, and the documents presented under it. If these documents conform to the letter of credit, the banker is bound to pay; if they do not, the banker is equally not bound to pay. The letter of credit called for "Description of goods in the letter of credit", whereas the railway receipts carried the description "Description of goods in the tendered documents", and it was not within the province of the appellant bank to hold that the latter description meant identically the same thing as the former.
46.In an action against a purchaser for reimbursement, it is only necessary to prove that the goods tendered were the goods purchased, no matter how described, that is, that the purchaser was offered that which he had contracted for; whereas, in a case such as the present, in an action by the beneficiary against the issuing bank, it makes no difference whether the goods tendered were in fact identical to the goods purchased, the only question being: did the documents conform to the letter of credit?
25.It is specifically argued, by reference to Articles 14(d) and (f) of the UCP 600, that minor discrepancies in important documents — namely, the commercial invoice, the transport document / bill of lading and the insurance contract — are to be treated as very material, whereas minor discrepancies in other documents are not to be treated as so relevant as to justify the issuing bank in refusing payment. Relying upon sub-Article (f) of Article 14 of the UCP 600 read with sub-Article (d) thereof, it is further argued on behalf of the plaintiff that there should be a practical understanding of the contents of documents other than the invoice, the bill of lading and the insurance contract, and that only the latter documents are to be read very strictly with respect to their conformity with the requirements of the documents to be presented under the letter of credit, so as to be free of discrepancies. Article 14 of the UCP 600, relied upon, is reproduced hereunder:
"Article 14 Standard for Examination of Documents
a.A nominated bank acting on its nomination, a confirming bank, if any, and the issuing bank must examine a presentation to determine, on the basis of the documents alone, whether or not the documents appear on their face to constitute a complying presentation.
b.A nominated bank acting on its nomination, a confirming bank, if any, and the issuing bank shall each have a maximum of five banking days following the day of presentation to determine if a presentation is complying. This period is not curtailed or otherwise affected by the occurrence on or after the date of presentation of any expiry date or last day for presentation.
c.A presentation including one or more original transport documents subject to articles 19, 20, 21, 22, 23, 24 or 25 must be made by or on behalf of the beneficiary not later than 21 calendar days after the date of shipment as described in these rules, but in any event not later than the expiry date of the credit."
26.It is further submitted that the plaintiff has committed fraud by not shipping the full quantity of the goods as well as by shipping substandard goods.
27.This submission is founded upon the judgment of Valmiki J. Mehta, J., in IFCI Factors Ltd. Versus Maven Industries Ltd. & Ors., wherein it was held that:
"It is trite, and as observed in the aforesaid three orders / judgments, that Order Order number in CPC CPC is a unique departure from the ordinary principles of natural justice wherein a defendant has an automatic right to defend the suit. By Order Order number in CPC CPC, exceptions have been carved out whereby defendant cannot defend the suit as a matter of right as is done in other cases and this is because ex facie or at least prima facie the specific liability of a defendant in terms of a liquidated amount is shown to CS(OS) No.2950/2015 Page 29 of 36 clearly exist from a written contract containing the liquidated amount or from a dishonoured bill of exchange or a cheque. Once there are such documents, being a written contract containing liquidated amount or a dishonoured bill of exchange or a cheque, which by themselves without any further fact(s) or document(s) required to be pleaded and proved, shows clearly the liability of the defendant in favour of the plaintiff as existing, it is for this reason that filing of such suits under Order Order number in CPC CPC are allowed and defendant who is otherwise ex facie or prima facie liable by virtue of the written document is asked to seek leave to defend to contest the suit. Obviously an exception from the normal procedure and the requirement of following the principles of natural justice when it exists, the same has to be necessarily construed within the strict terms of the requirements contained in Order Order number in CPC CPC. Order Order number in CPC CPC is not intended to allow parties to extend the scope of Order Order number in CPC CPC so as to allow filing of the suits when amounts which are claimed in the suit do not directly spring and arise from the written document or the dishonourd bill of exchange or cheque. Putting it in other words, the cause of action in the suit for recovery of money which is filed under Order Order number in CPC CPC concludes as regards the averments on the existence of the cause of action to the written document containing the liquidated amount or the dishonoured bill CS(OS) No.2950/2015 Page 30 of 36 of exchange or cheque. If in the suit plaint, besides the averments of the cause of action of the written contract containing the specific liquidated amount which is specifically claimed in the suit, necessary further facts, averments and cause of action has to be pleaded for the plaintiff to show the claim to the amount claimed in the suit, then, such a suit is not based only on the written document only or the dishonoured bill of exchange or cheque only because other facts are to be established to show the liability of the defendant claimed in the suit, and thus such a suit was not intended by the legislature to be filed under Order Order number in CPC CPC. Accordingly, therefore once the suit amount which is claimed in the suit is not the amount which directly arises in terms of the liquidated amount stated in the written document or a dishonoured bill of exchange or a cheque, the suit will not be maintainable under Order Order number in CPC CPC otherwise a large category of cases which were not meant by the legislature to be filed under Order Order number in CPC CPC will be sought to be filed and entertained under Order Order number in CPC CPC."
28.That the Plaintiff has not approached this Hon’ble Court with clean hands, and is therefore not entitled to any relief by way of the present suit.
29.It is further submitted by the Defendant Company that, as per the accounts maintained by the Defendant, the Defendant does not have any liability of the kind alleged by the Plaintiff in the suit. The amount claimed by the Plaintiff is imaginary, and the Plaintiff has failed to produce its statement of accounts to authenticate the same.
30.That the Plaintiff is also guilty of concealment of facts relating to material issues, and as such the Plaintiff is not entitled to any relief, in accordance with the law laid down by the Hon’ble Supreme Court of India.
31.That the applicant/defendant craves leave to defend the said suit on the grounds and reasons mentioned hereinabove.
32.That it is pertinent to mention here that the Plaintiff, from the very beginning, has been attempting to obtain a decree by hook or by crook. That the Defendants, if permitted to contest the case, would be able to prove that the Plaintiff is guilty of concealment of material facts, misrepresentation and fraud upon the Court. That the Plaintiff has not approached this Hon’ble Court with clean hands, under the facts and circumstances described hereinabove, and is therefore not entitled to any relief by way of the present suit. The suit is liable to be dismissed in accordance with the precedents laid down by various Courts.
33.It is, therefore, most respectfully prayed that the present application under Order Order number in CPC Rule 3 Sub-Rule 5 read with Section 151 of the Code of Civil Procedure, moved by the Defendant for leave to defend, may kindly be allowed unconditionally, in the interest of justice, equity and fair play, by granting the Defendants an unconditional opportunity to contest the suit.
34.That it is further submitted that the suit is not maintainable under Order 37 Rule 2, inasmuch as various reliefs have been claimed in the suit which cannot fall within the ambit of Order 37 Rule 2.
35.That there are numerous triable issues and a good defence to the suit is available with the Defendant, and as such the Defendants are entitled to unconditional leave to defend the present suit. The present suit is based on a misconception of law, is without merit, and is a bundle of lies and misrepresentations followed by concealment tainted with fraud.
36.That the Defendant respectfully urges before this Hon’ble Court that appropriate directions may be issued to the Plaintiff to file legible copies of the aforesaid documents, along with the documents supporting the Plaintiff’s case, in lieu of Section 20(2) of the Code of Civil Procedure.
37.That the present suit is not maintainable under Order 37 of the Code of Civil Procedure, as the amount claimed by the Plaintiff is not a fixed amount, and the Plaintiff has claimed interest at 24%.
38.It is, therefore, most respectfully prayed that the present application under Order Order number in CPC Rule 3 Sub-Rule 5 read with Section 151 of the Code of Civil Procedure, moved by the Defendants, may kindly be allowed unconditionally, in the interest of justice, equity and fair play, along with an unconditional opportunity/leave to defend being granted to the Defendants to contest the suit.
PRAYER
It is, therefore, most respectfully prayed that, in the facts and circumstances of the case and in the interest of justice, this Hon’ble Court may graciously be pleased to:
A.Allow the instant application, and declare the suit as not maintainable under Order 37 of the Code of Civil Procedure.
B.In the alternative, grant leave to defend to the Defendants unconditionally, in the interest of justice.
C.Pass any other order/relief which this Hon’ble Court may deem fit and proper in the facts and circumstances of the matter, in favour of the Defendants.
It is prayed accordingly.
DEFENDANT
DELHITHROUGH
DATED
(Date of filing)
COUNSEL FOR THE DEFENDANT
Off: Counsel's office address, NEW DELHI -1100Pin code digit
IN THE COURT OF SH. Judge's name (first), LD. DISTRICT AND SESSION JUDGE, SOUTH EAST, SAKET COURTS, NEW DELHI.
IN THE MATTER OF:
Plaintiff's name: PLAINTIFF
VERSUS
First defendant's name (first part) First defendant's name (second part) & ORS: DEFENDANTS
AFFIDAVIT
Affidavit of Mr. Deponent's name, AR of Deponent's company name Ltd., having its registered office at Company's registered office address, Sector-Sector number of registered office, Noida, 201301, presently at New Delhi, do hereby solemnly affirm and declare as under:-
1.That I am the AR of Defendant No. 1 Company in the above-noted matter, and I am competent to depose by way of this affidavit in the aforesaid capacity.
2.That the accompanying cause of appearance under Order Order number in CPC Rule 3(1) of the Code of Civil Procedure, 1908 has been drafted under my instructions, which has been read and understood by me, and I say that the contents of the same are true and correct.
3.That the contents of the paras of the appearance are true on the basis of the records of the petition and are believed to be correct.
DEPONENT
VERIFICATION
Verified at Delhi on this Date of verification that the contents of paragraphs 1 to 3 of the above affidavit are true and correct to my knowledge, that no part of it is false, and that nothing material has been concealed therefrom.
DEPONENT