Replication on behalf of plaintiff to written statement in summary suit under Order 37 CPC
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IN THE COURT OF SH. AJEET NARAYAN, LD. CIVIL JUDGE, CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CS NO. Suit number OF 2023
IN THE MATTER OF:-
Plaintiff's name: PLAINTIFF
VERSUS
Defendant's name: DEFENDANT
N.D.O.H.: …...08.2024
REPLICATION ON BEHALF OF THE PLAINTIFF TO THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN THE SUIT INSTITUTED BY THE PLAINTIFF
MOST RESPECTFULLY SHOWETH:-
1.That the present Replication is filed on behalf of the Plaintiff in reply to the Written Statement filed by the answering Defendant. It is submitted that the Defendant has made libellous and slanderous allegations against the Plaintiff in the Written Statement, and the Plaintiff expressly reserves its right to initiate such legal action against the answering Defendant as may be warranted under law.
2.Without prejudice to the foregoing, and without in any manner admitting any of the submissions, contentions or allegations made in the Written Statement by the answering Defendant, save and except those expressly admitted, the Plaintiff tenders its Replication to the Written Statement as under:-
REPLY TO PRELIMINARY OBJECTIONS:-
1.That the contents of paragraph 1 of the preliminary objections are wrong and denied. It is denied that the present Summary Suit instituted by the Plaintiff is meritless, or that the Plaintiff has no locus standi to institute the present suit against the answering Defendant.
2.That the contents of paragraph 2 of the preliminary objections are wrong and denied. It is denied that the suit of the Plaintiff is not maintainable in the eyes of law on the ground that it is barred by the law of limitation, and as such the suit is liable to be dismissed as having been filed by the Plaintiff after the expiry of the prescribed period.
3.That the contents of paragraph 3 of the preliminary objections are wrong and denied. It is denied that the business transactions took place in the year Year of business transactions and that the present suit was filed by the counsel for the Plaintiff in the year Year suit was filed, i.e., after the expiry of the prescribed limitation period of more than two years, by way of concocted and clever drafting or legal manoeuvring.
4.That the contents of paragraph 4 of the preliminary objections are wrong and denied. It is denied that the Plaintiff could have filed the suit within three years from the date of the business transaction, i.e., Date of business transaction, and that since the Plaintiff filed the present suit after the expiry of two years, the suit of the Plaintiff is barred by the law of limitation and is liable to be dismissed outright.
5.That the contents of paragraph 5 of the preliminary objections are wrong and denied. It is denied that the legal notice sent by the Plaintiff is infructuous in itself on the ground that it was sent by the Plaintiff after the expiry of three years from the date of the business transactions; hence, it is denied that the notice sent by the Plaintiff is not maintainable in the eyes of law being time-barred.
6.That the contents of paragraph 6 of the preliminary objections are wrong and denied. It is denied that the Plaintiff has not approached this Hon'ble Court with clean hands, or that the Plaintiff has suppressed true and correct material facts by stating that the Defendant has not made payment. It is further denied that the Plaintiff failed to complete the order on time, or that the Defendant had sent numerous reminders, telephonic and by e-mail, seeking to know the actual status of the order. It is further denied that the Defendant had levied liquidated damages at the rate of 5% per week of the total value of the order upon the Plaintiff vide e-mail dated Date of email levying liquidated damages. It is further denied that the order was cancelled by Name of company that cancelled the order Pvt. Ltd. on the ground that the Plaintiff failed to supply the goods to the Defendant on time.
7.That the contents of paragraph 7 of the preliminary objections are wrong and denied. It is denied that the Defendant suffered business loss and damage to its reputation in the market owing to non-delivery of the goods by the Plaintiff on time, and accordingly it is denied that the Defendant has no liability towards the Plaintiff.
8.That the contents of paragraph 8 of the preliminary objections are wrong and denied. It is denied that the averments made by the Plaintiff in the suit are concocted and baseless, or that the Plaintiff has not approached this Hon'ble Court with clean hands and has suppressed true and correct material facts.
9.That the contents of paragraph 9 of the preliminary objections are wrong and denied. It is denied that the Plaintiff got the first legal notice served through its counsel on Date of first legal notice, and it is denied that in the alleged notice the Plaintiff cleverly concealed the true facts as to when the demand/order was placed by the Defendant and when, in actuality, the Plaintiff delivered/sent the goods to the Defendant. It is further denied that in the entire e-mails annexed by the Plaintiff there is no mention of how and when the order was made and when the delivery of goods was effected to the Defendant, merely to raise an unnecessary cause of action with facts twisted in favour of the Plaintiff; hence, it is denied that the suit is liable to be dismissed.
10.That the contents of paragraph 10 of the preliminary objections are wrong and denied. It is denied that the Plaintiff, if aggrieved, could have filed the present suit within the prescribed limitation period of three years, i.e., from Start of limitation period till End of limitation period, and that the Plaintiff filed the suit after the expiry of the period of limitation; accordingly, it is denied that the suit of the Plaintiff is liable to be dismissed.
11.That the contents of paragraph 11 of the preliminary objections are wrong and denied. It is denied that the Plaintiff failed to fulfil its part of the contract, or that the Plaintiff did not deliver the goods to the Defendant on time, or that the Plaintiff is not entitled to the amount claimed, which allegedly stood forfeited; accordingly, it is denied that there is no question of any interest as claimed by the Plaintiff in the suit.
12.That the contents of paragraph 12 of the preliminary objections are wrong and denied. It is denied that the Plaintiff has concealed material facts from this Hon'ble Court. It is further denied that the suit of the Plaintiff is based upon wholly false, incorrect and frivolous facts, and accordingly it is denied that the suit is untenable and liable to be dismissed.
13.That the contents of paragraph 13 of the preliminary objections are wrong and denied. It is denied that, owing to a delay of more than Delay (from, in months) to Delay (to, in months) months on the part of the Plaintiff company, the consignment of the Defendant was cancelled by the company to which the goods were proposed to be exported.
REPLICATION TO THE REPLY ON MERITS:-
1-2. That the contents of paragraphs 1-2 of the reply are wrong and denied, and the contents of the corresponding paragraphs of the suit are reiterated as correct.
3.That the contents of paragraph 3 of the reply are wrong and denied, and the contents of the corresponding paragraph of the suit are reiterated as correct. It is submitted that the Defendant is the sole proprietor of Defendant's proprietorship/firm name, and the captioned suit has been filed by the Plaintiff against the Defendant on account of the default of the Defendant in making payment of the due and admitted amount. That despite categorically admitting its liability, the said Defendant has failed to make payment of the due amount to the Plaintiff; hence, the captioned suit.
4.That the contents of paragraph 4 of the reply are wrong and denied, and the contents of the corresponding paragraph of the suit are reiterated as correct. It is denied that, initially, the Defendant made payments to the Plaintiff; however, over time, the Defendant chose to breach the said agreement and defaulted in payment of the due and admitted amount to the Plaintiff, despite giving numerous representations and assurances, thus prompting the captioned suit. It is further denied that the Defendant made payments to the Plaintiff but, over time, chose to breach the said agreement and defaulted in payment of the due and admitted amount. It is submitted that the Defendant chose to breach the settlement agreement entered into between the parties, and subsequently defaulted in payment of the due and admitted amount to the Plaintiff despite giving numerous representations and assurances; hence, the captioned suit. It is pertinent to mention that the Defendant had initially defaulted in payment of the due amount to the Plaintiff (against the supplies made by the Plaintiff), and subsequent to the Plaintiff issuing a legal notice to the Defendant, the said Defendant chose to enter into a settlement agreement/understanding with the Plaintiff. That initially the Defendant made payments to the Plaintiff; however, with the passage of time, it chose to breach the said agreement and defaulted in payment of the due and admitted amount; hence, the captioned case has been filed under Order 37 against the Defendant.
5-6. That the contents of paras 5-6 of the reply are wrong and are denied, and the contents of the corresponding paragraphs of the plaint are reiterated as correct. It is denied that the defendant had charged LD @ 5% per week of the total order value from the plaintiff vide email dated Date of email levying liquidated damages; in fact, the order was cancelled by Name of company that cancelled the order as the plaintiff failed to supply the goods to the defendant on time. It is submitted that the defendant had approached the plaintiff company requesting supply of the goods on an urgent basis, and that the defendant gave numerous positive assurances and representations to the plaintiff company that the due payment would be immediately released upon delivery of the goods and raising of the invoice/bill.
7.That the contents of para 7 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. It is submitted that, in light of the mutually accepted terms and conditions between the parties, the defendant placed orders, and subsequently, pursuant to such orders, the plaintiff supplied the defendant with the required goods as per its specifications and to its satisfaction. It is pertinent to mention herein that the defendant, without any protest or demur, accepted the goods supplied by the plaintiff, as the said goods were of utmost quality and in accordance with the defendant's requirements and specifications. That the transactions between the parties took place on a continuous basis, and a business relationship was established between the parties which continued over a period of time; however, with time, as a result of the default of the defendant, the said business relationship was terminated.
8-9. That the contents of paras 8-9 of the reply are wrong and are denied, and the contents of the corresponding paragraphs of the plaint are reiterated as correct. It is submitted that the plaintiff, subsequent to the delivery of the goods (including but not limited to pumps as per the specifications and requirements of the defendant), raised invoices upon the defendant requesting payment of the due amount. That the defendant, against the goods supplied to it, made part payments to the plaintiff on a running basis, and the business transactions continued between the parties. It is pertinent to mention that, with time, the defendant chose to initially delay and thereafter default in remitting payment of the due amount to the plaintiff by one means or the other, as the said defendant kept deferring the matter on one pretext or the other.
10.That the contents of para 10 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. It is denied that the defendant had already paid the amount of the dishonoured cheque in cash to the plaintiff. It is submitted that, during the course of the transactions between the parties, the said defendant, towards payment of the part due amount to the plaintiff, also issued numerous post-dated cheques in favour of the plaintiff; however, most of the said cheques, as and when presented, were dishonoured.
11-12.That the contents of paras 11-12 of the reply are wrong and are denied, and the contents of the corresponding paragraphs of the plaint are reiterated as correct. It is denied that the plaintiff never sent the goods on time; in fact, it is denied that the plaintiff sent defective goods to the defendant when the defendant started charging LD from the plaintiff. It is further denied that, when the defendant raised a complaint with the plaintiff regarding the defective goods, the plaintiff refused to take back the defective goods from the defendant and threatened the defendant. It is submitted that, with time, numerous difficulties were faced by the plaintiff as the defendant had failed to remit payment of any amount whatsoever to the plaintiff; hence, the plaintiff terminated its business arrangement with the defendant and refused to supply any additional goods until the balance payment was remitted to the plaintiff. That, after numerous requests from the plaintiff, the said defendant for some time chose to make part payments to the plaintiff on a running basis; however, with time, it failed to make any payment whatsoever. That the plaintiff made numerous requests to the defendant seeking payment of the due amount; however, to no avail, as the defendant failed to consider the pleas of the plaintiff and chose to default in making payment of the due amount.
13.That the contents of para 13 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. It is submitted that, with time, an amount of/around Rs. Amount due from defendant (₹)/- became due and payable by the defendant to the plaintiff; however, the defendant failed to make payment of the same. Hence, having no other option and constrained by the unlawful acts committed by the defendant, the plaintiff duly served upon the defendant a legal notice dated Date of legal notice, vide which the plaintiff categorically directed the defendant to make payment of the due and admitted amount (being Rs. Amount due at date of legal notice (₹)/-, due on the date of the said legal notice). That, after receipt of the said legal notice, the defendant initially chose to raise false and frivolous issues vide its email dated Date of defendant's email raising issues; however, when the mischief being played by the defendant was categorically highlighted vide email dated Date of plaintiff's counsel's email sent by the plaintiff's counsel to the defendant, the defendant chose to enter into settlement talks with the plaintiff.
14-15.That the contents of paras 14-15 of the reply are wrong and are denied, and the contents of the corresponding paragraphs of the plaint are reiterated as correct. It is denied that the business transactions took place in the year Year of business transactions and that the present suit was filed by the plaintiff's counsel in the year Year suit was filed, after expiry of the prescribed limitation period, i.e., after more than Exceeded limitation duration, by way of concocted and clever drafting or legal manoeuvring. It is further denied that the emails exchanged between the parties were merely intended to create a false limitation period in order to recover a concocted amount. It is submitted that, vide emails dated Date of first settlement email and Date of second settlement email, the parties chose to enter into a settlement agreement/arrangement, and it was mutually decided between the parties that: (a) the defendant shall be liable to make payment of an amount of Rs. Settlement amount (₹)/- (INR Settlement amount (in words)) to the plaintiff vide 16 instalments, starting from Date of first installment till Date of last installment; and (b) should the defendant default in making payment of the said amount and choose to breach the said settlement/understanding between the parties, then the defendant shall be liable to make payment of interest @ 18% p.a. from the date of the invoice till the due date. That vide email dated Date of settlement proposal email, a settlement agreement/arrangement was proposed by the plaintiff's counsel (under the plaintiff's instructions); and accordingly, vide email dated Date of defendant's admission email, the defendant admitted its liability to the tune of INR Admitted liability amount (₹)/- (INR Admitted liability amount (in words)), and assured the plaintiff that the complete amount would be paid to the plaintiff vide instalments by or before Deadline for payment of full amount. That the defendant assured the plaintiff that it shall make payment of the complete amount of INR Total amount payable (₹)/- to the plaintiff by or before Deadline for payment of full amount, and in lieu of the said arrangement, the said defendant also remitted part payment/few instalments.
16-17.That the contents of paras 16-17 of the reply are wrong and are denied, and the contents of the corresponding paragraphs of the plaint are reiterated as correct. It is submitted that it was categorically admitted and undertaken by the defendant that, should the defendant choose to default in payment of the above-said total amount and/or any instalment (as mutually agreed between the parties vide email dated Date of email recording installment agreement), then the plaintiff shall have the right to approach the Hon'ble Courts of Delhi seeking recovery of the total due amount along with agreed interest @ 18% p.a. till the date of payment. That despite the fact that the defendant had categorically undertaken its liability and agreed to make payment of the complete due amount of INR Complete due amount (₹)/- by or before Deadline for payment of complete due amount, the defendant nonetheless chose to violate the mutually agreed terms between the parties, as till date an amount of Rs. Amount still due (₹)/- (Amount still due (in words)) is still due and payable (hereinafter referred to as the "Due Amount") by the defendant, and the said amount is payable along with interest (to be calculated @ 18% p.a.), payable starting from the due date and calculated till the date of payment.
18-19.That the contents of paragraphs 18-19 of the reply are wrong and are denied, and the contents of the corresponding paragraphs of the plaint are reiterated as correct. It is submitted that despite the mischievous and mala fide intent of the Defendant from the very outset, the Plaintiff has repudiated the requests made by the Defendant and has consistently sought payment of the Due Amount. That till date, the Plaintiff has been made to suffer substantial financial losses, including loss of business opportunities, consequential upon the non-payment of the Due Amount by the Defendant, which has caused severe hardship to the Plaintiff, for which the Defendant is solely and legally liable. That the Plaintiff has, till date, made numerous attempts to contact the Defendant in every possible manner with a view to amicably settling the matter, however, without success. That the mala fide conduct of the Defendant demonstrates that the Defendant, from the very beginning, never had any intention of paying the Due Amount. That it is pertinent to mention that all the Invoices were duly accepted and acknowledged by the Defendant, and no dispute whatsoever was raised regarding the goods supplied.
20-21.That the contents of paragraphs 20-21 of the reply are wrong and are denied, and the contents of the corresponding paragraphs of the plaint are reiterated as correct. It is submitted that the Plaintiff company contacted the Defendant on numerous occasions and also attempted to meet the Defendant on several occasions; however, all such requests of the Plaintiff company were not entertained. That it is pertinent to mention that the Plaintiff company, in view of the past business relationship with the Defendant, chose not to resort to any legal remedy, trusting that the due amount would be paid by the Defendant, along with interest, shortly; however, such trust of the Plaintiff company was betrayed by the Defendant. That the facts emerging from the above clearly show that the Defendant cheated the Plaintiff company with dishonest and mala fide intentions. Thus, the Defendant has caused wrongful loss to the Plaintiff and wrongful gain to itself, and has also committed offences under Sections 406 and 420, along with several other provisions, of the Indian Penal Code, 1860.
22-23.That the contents of paragraphs 22-23 of the reply are wrong and are denied, and the contents of the corresponding paragraphs of the plaint are reiterated as correct. It is denied that the alleged agreement is void on the ground that it was executed after the expiry of the period of limitation. It is submitted that, as per the ledger of the Plaintiff company, an amount of Rs.Amount due as per ledger (₹)/- (Amount due as per ledger (in words)), along with interest at 18 (eighteen) %, is due and payable by the Defendant to the Plaintiff till date. That the captioned suit is based on a contract entered into and established between the parties pursuant to emails exchanged between them dated Date of settlement email and Date of second settlement email, and in pursuance of the said arrangement, the Defendant made/remitted installments to the Plaintiff; hence, the said contract/settlement arrangement is binding upon the parties. That the liability to pay the Due Amount is an admitted liability of the Defendant, and towards the discharge of this liability, the Defendant even sent an email dated Date of defendant's email seeking additional time seeking an additional period of time from the Plaintiff.
24-25.That the contents of paragraphs 24-25 of the reply are wrong and are denied, and the contents of the corresponding paragraphs of the plaint are reiterated as correct. It is denied that the Plaintiff failed to fulfil its part of the contract by not delivering the goods to the Defendant on time, that the Plaintiff is not entitled to the amount claimed, that the said amount stood forfeited, and that consequently there is no question of any interest as claimed by the Plaintiff in the suit. It is submitted that the suit is within the period of limitation, as the settlement arrangement was entered into between the parties on Date of settlement arrangement, and vide the said settlement agreement, the Defendant was under an obligation to make payment of the outstanding amount by or before Deadline for payment of outstanding amount. That the last installment towards the said settlement amount was paid by the Defendant on/around Date of last installment paid, and subsequent thereto, the Defendant failed to make any further payment; furthermore, the Defendant, vide email dated Date of defendant's email admitting default, admitted its default in payment and sought an additional period of time for making the payment. Hence, in view of the same, the captioned suit has been filed within the prescribed period of limitation. The cause of action is a continuing one, as the Defendant has failed to make payment of the due and admitted amount.
26.That the contents of paragraph 26 of the reply are wrong and are denied, and the contents of the corresponding paragraph of the plaint are reiterated as correct. It is denied that no cause of action ever arose in favour of the Plaintiff against the Defendant. It is submitted that the cause of action arose, within the jurisdiction of this Hon'ble Court, when the Plaintiff company supplied the goods to the transport carrier in Delhi for the purpose of delivery of the goods to the Defendant, and it further arose when the said goods were delivered to the Defendant by the said transport carrier. The cause of action further arose when the Plaintiff company raised invoices from its registered office (located within the jurisdiction of this Hon'ble Court) upon the Defendant seeking payment of the due amount; further, pursuant to such invoices, it was mutually agreed between the parties that any and all disputes shall be resolved and governed under the jurisdiction of Delhi only, and as the registered office of the Plaintiff falls within the jurisdiction of this Hon'ble Court, this Hon'ble Court has jurisdiction. That the cause of action further arose within the jurisdiction of this Hon'ble Court when the Defendant made part and petty payments to the Plaintiff in its bank account within the jurisdiction of this Hon'ble Court. It further arose when the Defendant handed over the cheques to the Plaintiff company at its office for the discharge of its liability. That the Defendant is under an obligation to make payment to the Plaintiff at its registered office, and as the same is located within the jurisdiction of this Court, this Court has jurisdiction. That further, no particular place of payment had been specified, either expressly or impliedly; hence, the Defendant was (and is) under an obligation to find/seek out the Plaintiff and discharge its obligation of payment to the Plaintiff at its registered office, and as the same is located within the jurisdiction of this Hon'ble Court, pursuant to the principle of "debitor must seek creditor", this Hon'ble Court has jurisdiction. That further, the cause of action also arose within this Hon'ble Court as the orders were placed and processed through the registered office of the Plaintiff, which falls within the jurisdiction of this Hon'ble Court; hence, the cause of action arose within the jurisdiction of this Hon'ble Court.
27-28.That the contents of paragraphs 27-28 of the reply are wrong and are denied, and the contents of the corresponding paragraphs of the plaint are reiterated as correct. It is submitted that the suit claim falls within the pecuniary and territorial jurisdiction of this Hon'ble Court. Therefore, this Hon'ble Court has both territorial and pecuniary jurisdiction to try and decree the suit.
29.That the contents of paragraph 29 of the reply are a matter of record, and the contents of the corresponding paragraph of the plaint are reiterated as correct.
That it is denied that the present suit is not legally maintainable as regards the relief sought by the Plaintiff.
That the prayer clause paragraph of the written statement is absolutely wrong and is specifically denied, with full particulars and details, word by word. The answering Defendant is not entitled to the relief claimed.
Any allegation made in the written statement which is not specifically denied herein is absolutely wrong and is specifically denied, and the absence of a specific denial shall not be treated as an admission on the part of the Plaintiff.
PRAYER:-
It is, therefore, most respectfully prayed that this Hon'ble Court may kindly grant the relief in favour of the Plaintiff and against the Defendant, as prayed for in the main suit, in the interest of justice, equity and the circumstances of the case.
Pass such further order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, in the interest of justice.
It is prayed accordingly.
Place of execution of the signed documentPLAINTIFF
THROUGH
DATED:
ADVOCATES
Office Advocate's office address.
Mob. No. Advocate's mobile number
Email: Advocate's email address
IN THE COURT OF Judge's name and court designation
CS NO. Suit number OF Year of the suit number
IN THE MATTER OF:-
Plaintiff's name: PLAINTIFF
VERSUS
Defendant's name: DEFENDANT
AFFIDAVIT
Affidavit of Mr. Deponent's name, Director of M/s Plaintiff company's name, having its Registered Office at Registered office address, who does hereby solemnly affirm and declare as under:-
1.That I, the Deponent, being the Director of the Plaintiff company, am also the Authorised Representative of the Plaintiff company in the above-noted case and am fully authorised by the Plaintiff company to file the captioned proceedings; further, I am well conversant with the facts and circumstances of the case and am competent to swear this Affidavit.
2.That the accompanying replication to the written statement has been drafted by my counsel under my instructions, and its contents have been read over and explained to me in my vernacular; the same are true and correct to my knowledge and belief, and the contents of the said replication shall be read as part and parcel of this Affidavit, which are not repeated herein for the sake of brevity.
DEPONENT
VERIFICATION:-
Verified at New Delhi on this Date of verification day of Month and year of verification. The contents of the paragraphs of my above Affidavit are true and correct. No part of it is false and nothing material has been kept concealed therefrom.
DEPONENT