IN THE COURT OF SH. Judge's first name Judge's last name, LD. DISTRICT AND SESSION JUDGE, SOUTH EAST, SAKET COURTS, NEW DELHI.
IN THE MATTER OF:
Plaintiff's name: PLAINTIFF
VERSUS
Defendant's name & ORS.: DEFENDANTS
I N D E X
| 1. | APPLICATION UNDER ORDER 37 RULE 3(5) READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE 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, LD. DISTRICT AND SESSION JUDGE, SOUTH EAST, SAKET COURTS, NEW DELHI.
IN THE MATTER OF:
Plaintiff's name: PLAINTIFF
VERSUS
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 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 case by courier; however, no notice, summons or direction of this Hon’ble Court requiring the Defendants to file the leave to defend within ten days has been served. The present application for leave to defend is being filed out 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 supplied is illegible and appears to be incomplete, as some of the annexures are missing and others are indistinct. The Defendants are filing the present application for leave to defend 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 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.The present Suit projects a scenario which is not only disturbing but also has the potential to create a stir compelling one to ponder, in a perturbed state, how an unscrupulous, unprincipled and deviant suit can be ingeniously and innovatively designed in a nonchalant manner so as to knock at the doors of this Court.
5.That by the present Suit, the Plaintiff appears to treat this Hon’ble Court as a laboratory where multifarious experiments may be conducted, and whereby skilful persons may 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 the real intention is to harass the Answering Defendant.
6.That it is further submitted that the basic crux of the pleading is calculated to bewilder this Hon’ble Court, and the points presented before this Hon’ble Court are based on wrong facts and conjectures. It is further submitted that, as per the contents of the Summons for Judgment, the same has been verified by Mr. Business leader's first name Business leader's last name, who is 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 jurisdiction of this Hon’ble Court. It is further submitted that the Plaintiff Company is acting through its Authorised Representative/Business Leader, namely Mr. Authorised representative's first name Authorised representative's last name, and the affidavit annexed along with the Summons for Judgment discloses his personal residential address. Further, the said representative is the business leader of Sister concern company name 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, since the correct name of the Defendant Company is Defendant company's first name Defendant company's second name Pvt. Ltd.
8.It is further submitted that, upon a perusal of the Memo of Parties as filed along with the Summons for Judgment and the Suit, it is evident that the registered office of the Plaintiff Company is at City of the Plaintiff company's registered office and its other office is at City of the Plaintiff company's other office, whereas the address of the Defendant Company is at City of the Defendant company's address. 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 by the Defendant Company that the residential address of a person or employee of a company is 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 Court would be vested with territorial jurisdiction to entertain the Suit, which is founded only 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 the same has been filed on wrong and absolutely incorrect facts merely to mislead this Hon’ble Court. It is submitted that, as per the paragraph pertaining to the cause of action alleged by the Plaintiff in the Summons for Judgment, the cause of action is limited to the purchase order dated Date of the purchase order, the irrevocable Letter of Credit opened on Date of the irrevocable Letter of Credit, and events which allegedly arose on First subsequent date on which cause of action arose and thereafter on Second subsequent date on which cause of action arose. It is further submitted that, as per the averments made by the Plaintiff in the Suit under Order 37, the period of limitation would commence from the date the money became due, i.e., the date of supply of the goods, being Date of the irrevocable Letter of Credit as alleged by the Plaintiff, and, in accordance with the Limitation Act, the limitation would run from the date the account was demanded, as alleged by the Plaintiff Company. Taking the said provisions into account, the 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 in the light of the factual situation which gives rise to an enforceable claim, if any, and it must be tested against the entire averments contained in the plaint to determine whether, read collectively, they constitute a bundle of facts forming the basis for institution of the Suit.
11.It is further submitted that the position of law which clearly emerges from the above 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, and 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 a court's jurisdiction, the same cannot be taken into consideration, and such a suit ought to be dismissed by the Hon’ble Court straightaway.
13.It is further submitted that, as per the settled law qua cause of action, which is generally understood in civil proceedings to mean 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 that the assertion in the plaint that the registered address of the Defendant is in New Delhi is false. This is evident from the summons for judgment and the address stated in the Memo of Parties, both of which clearly reflect that the registered office of the Defendant Company is situated at City where the Defendant's registered office is situated, and the Plaintiff has filed the Memo of Parties without any mention of a Delhi address of the Defendant Company. The Plaintiff, with a view to obtaining a decree by any means, has thus misled this Hon'ble Court on the question of its jurisdiction to try the suit.
15.It is further submitted that it is evident that neither the registered office nor the corporate office of the Plaintiff is situated in Delhi, and the position is the same 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 an authorised representative — and that too of some other sister concern of the Plaintiff Company, which has no relationship with or privity to the answering Defendant. That 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 in 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, where 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 mere service of notice at the registered office of a company does not give rise to a cause of action within that territory unless service of such notice was an integral part of the cause of action. It was noticed that the cause of action means every fact which, if traversed, it would be necessary for the Plaintiff to prove in order to support his right to a judgment of the court. It was held that the location of the subordinate office of the Defendant No.3 at Delhi ipso facto cannot 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 same, forgetting the fact that a suit based merely on 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, inasmuch as a letter of credit constitutes an unconditional obligation undertaken by the banker who has issued it 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 sought to be contended that there is no privity of contract between the Defendant No.1 and the Plaintiff, since the claim was being made against the Defendant No.1 in relation to a contract that the Plaintiff had with Defendant No.2 and Promod S.A., 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 make all the other parties co-Defendants. It is contended that the present transaction is no different from that 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 bills of exchange, hundis, 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 banker-Defendant, 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 merely by the fact that the Bank Guarantee was executed in Delhi and transmitted to Bombay from Delhi, no cause of action would arise in favour of 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 leave to defend application is also founded on the ground that certain discrepancies were found in the documents pertaining to the same services, and the same were communicated to the Plaintiff; and 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; the Plaintiff has therefore admitted the existence of the discrepancies, and since the documents, after correction of the discrepancies, were re-presented 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 paragraphs of the judgment of the Supreme Court in the case of United Commercial Bank v. Bank of India and Others, (1981) 2 SCC 766, stated hereinafter; on the basis of these paragraphs 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 said judgment relied upon are paragraphs 39, 40 and 44 to 46, which read as under:
"39. The relevant authorities uniformly lay down in dealing with commercial letters of credit that 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 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."
It is settled law that the description of the goods in the relative bill of lading must correspond exactly with the description in the letter of credit; that is, the goods must in each case be described in identical terms, even though the goods differently described in the two documents are, in fact, the same. It is the description of the goods that is all-important. The reason for this requirement is stated in Davis' LAW RELATING TO COMMERCIAL LETTERS OF CREDIT, 2nd Edn., p. 76:
"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."
But the liability thus imposed on the issuing banker carries with it a corresponding right that the seller shall, on his part, comply with the terms of the letter of credit, and the seller's obligations have been construed as strictly as those of the banker.
We have already referred to the statement of law in Halsbury's Laws of England, which found a place in PAGET'S LAW OF BANKING, 8th Edn., p. 648, and, at the risk of repetition, we may reproduce the same, to the 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, but in any case it has the power and is subject to the limitations which are given or imposed by it, in the absence of the appropriate provisions in the letter of credit.
44.The appellant was under a duty to its constituent, the Buyer corporation (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, against the first lot of 20 documents, refused to make payment except "under reserve", and against the second lot of 27 documents even "under reserve", the remedy of the plaintiffs was to approach the "openers", i.e., Buyer corporation (opener of the letter of credit), to instruct the appellant to effect a change in the description of the goods from "Description of goods as stated in the letter of credit" to "Description of goods as stated in the transport documents" in the letter of credit. Instead of adopting that course, the irregularity in the description in the documents tendered for payment was sought to be got over by the plaintiffs by instructing their bankers, Name of the plaintiffs' bank (guarantor bank), to execute a letter of guarantee or indemnity. When the bills of exchange tendered to the Buyer corporation (opener of the letter of credit) were dishonoured when presented on Date of dishonour of the bills of exchange, the legal consequences must follow as between the appellant and the Name of the plaintiffs' bank (guarantor bank). There was the inevitable chain of events which could not be prevented by the grant of an injunction.
45.The appellant presumably knew little or nothing about Type of commodity involved. Bankers are not dealers in Type of commodity involved in such a case as this, but dealers in documents only. The appellant, 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 employment of experts, whether the goods actually conformed to the contracts between the buyer and the seller, nor even to determine, either from its own or expert advice, whether the documents called for the goods which the buyer would be bound to accept. The banker knows only the letter of credit, which is the only authority to act, and the documents which are presented under it. If these documents conform to the letter of credit, he is bound to pay. If not, he is equally not bound to pay. The letter of credit called for "Description of goods as stated in the letter of credit" while the railway receipts carried the description "Description of goods as stated in the transport documents", and it was not within the province of the appellant to say that the latter description meant identically the same thing as the former.
46.In the action against a purchaser for reimbursement, it is only necessary to prove that the goods tendered were the goods purchased, no matter how described, i.e., the purchaser was offered that which he had contracted for; while, in such a case as this, 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 referring to Articles 14(d) & (f) of the UCP 600, that minor discrepancies in important documents, namely the commercial invoice, transport document/bill of lading and an insurance contract, have to be treated as very material, whereas minor discrepancies in other documents are not to be treated as relevant for the issuing bank to refuse payment. Relying upon sub-Article (f) of Article 14 of the UCP 600 along with its sub-Article (d), it is further argued by the learned senior counsel for the Plaintiff that there should be a practical understanding of the contents of documents other than the invoice, bill of lading and insurance contract, and that only the latter documents have to be read very strictly with respect to their being in conformity with the requirements of the documents to be presented under the letter of credit, so as not to suffer any discrepancies. Article 14 of the UCP 600 relied upon is reproduced as under:
"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.Reliance is placed on the judgment of Justice Valmiki J. Mehta 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 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 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 has no liability of any kind as alleged by the Plaintiff in the suit, and the amount claimed by the Plaintiff is an imaginary amount. The Plaintiff has failed to produce its statement of accounts to authenticate the said claim.
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 has been attempting, from the very beginning, to obtain a decree by hook or by crook. The Defendants would be able to prove that the Plaintiff is guilty of concealment of material facts, misrepresentation and fraud upon this Court, in the event the Defendant is allowed to contest the suit. In the facts and circumstances described hereinabove, the Plaintiff has not approached this Hon'ble Court with clean hands and is not entitled to any relief by way of the present suit. The suit is liable to be dismissed in accordance with various precedents of the 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 be allowed unconditionally, in the interest of justice, equity and fair play, by granting unconditional leave to the Defendants 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 do not fall within the ambit of Order 37 Rule 2.
35.That there are numerous triable issues and a good defence to the suit available with the Defendant, and as such the Defendants are entitled to unconditional leave to defend the present suit. The present suit is founded on a misconception of law, is devoid of merit, and is a bundle of lies and misrepresentations coupled with concealment tainted with fraud.
36.That the Defendant respectfully urges before this Hon'ble Court that an appropriate direction may be issued to the Plaintiff to file legible copies of the aforesaid documents, together with such documents as support the Plaintiff's case, in view 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, inasmuch as the amount claimed by the Plaintiff is not a fixed amount, and the Plaintiff has claimed interest at the rate of 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 be allowed unconditionally, in the interest of justice, equity and fair play, along with an opportunity / unconditional leave to defend being granted to the Defendant 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 unconditional leave to defend to the Defendants, in the interest of justice.
C.Pass any other order / grant such other relief as 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 final digit
IN THE COURT OF SH. Judge's name, LD. DISTRICT AND SESSION JUDGE, SOUTH EAST, SAKET COURTS, NEW DELHI.
IN THE MATTER OF:
Plaintiff's name: PLAINTIFF
VERSUS
Defendant's first name Defendant's second name & 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, 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 have 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 paragraphs 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