Reply by plaintiff to defendant's application for leave to defend under Order 37 Rule 3(5) CPC with affidavit
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IN THE COURT OF Presiding judge's name; Ld. Civil Judge; District Central; Tis Hazari Courts, Delhi.
C.S. No. Suit number (CS) of 2023
IN THE MATTER OF:
Plaintiff's name: PLAINTIFF
VERSUS
Defendant's name: DEFENDANT
N.D.O.H.: Next date of hearing
I N D E X
| S. No. | Particulars | Pages |
|---|---|---|
| 1. | Reply on behalf of the Plaintiff to the application under Order 37 Rule 3(5) of CPC for leave to defend filed by the Defendant, with affidavit. |
DELHIPLAINTIFF
DATEDTHROUGH
Plaintiff's counsel/firm name
Advocates & Legal Consultants
Counsel's office address,
New Delhi-110014.
Email: Counsel's email address
Mob: Counsel's mobile number
IN THE COURT OF Presiding judge's name; Ld. Civil Judge; District Central; Tis Hazari Courts, Delhi.
C.S. No. Suit number (CS) of 2023
IN THE MATTER OF:
Plaintiff's name: PLAINTIFF
VERSUS
Defendant's name: DEFENDANT
N.D.O.H.: Next date of hearing
REPLY ON BEHALF OF THE PLAINTIFF TO THE APPLICATION UNDER ORDER 37 RULE 3(5) OF CPC FOR LEAVE TO DEFEND FILED BY THE DEFENDANT
MOST RESPECTFULLY SHOWETH:
PRELIMINARY OBJECTIONS:
1.That the present application is replete with falsehoods and misrepresentations, and does not make out any case for the grant of leave to defend the suit. It is, therefore, liable to be dismissed with costs.
2.That in terms of the order dated Date of summons order, the Defendant was served with the summons of the suit under Order 37 Rule 3(1) of CPC for the first time on Date of service of summons on defendant by registered post. The Defendant failed to enter appearance at all, although it was required to enter appearance within ten days as provided under Order 37 Rule 3(1) of CPC. On this ground alone, the Plaintiff is entitled to judgment and decree in its favour.
3.That even otherwise, the Defendant is not entitled to leave to defend, and the same deserves to be refused, as the application for leave to defend does not disclose facts indicating that the Defendant has a substantial defence. The application discloses no triable issue; further, the defence sought to be raised by the Defendant is wholly frivolous and vexatious.
4.That the Defendant was served with the summons of the case, along with a copy of the plaint and its annexures, at Address of service on defendant. It is, however, submitted that once the copy of the plaint along with annexures had been supplied to the Defendant at the time of service of the summons of the suit, the Plaintiff was under no legal obligation to supply the same again. The case of the Plaintiff is founded upon cheques issued by the Defendant and falls within the ambit of Order 37 of CPC.
5.That in view of the foregoing, the Defendant is not entitled to leave to defend the suit, and the Plaintiff is entitled to judgment and decree forthwith.
6.That under Section 118 of the N.I. Act, 1881, there is a presumption of consideration, namely, that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. That in the course of the transactions between the parties, the Defendant, towards payment of the amount due in part to the Plaintiff, issued numerous post-dated cheques in favour of the Plaintiff; however, most of the said cheques, as and when presented, were dishonoured. Some of the cheques issued by the Defendant in the course of its transactions with the Plaintiff, as available with the Plaintiff, have been attached and annexed as *Annexure P-2 (Colly.).*
7.That with the passage of time, the Plaintiff faced numerous difficulties, as the Defendant failed to remit payment of any amount whatsoever to the Plaintiff. Consequently, 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.
8.That in course of time, an amount of approximately 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. Left with no other option, and constrained by the unlawful acts committed by the Defendant, the Plaintiff duly served a Legal Notice dated Date of legal notice upon the Defendant, whereby the Plaintiff categorically directed the Defendant to make payment of the due and admitted amount (being Rs. Amount claimed in legal notice (₹)/-, due as on the date of the said Legal Notice). That upon 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 disputing notice; however, once the mischief being played by the Defendant was categorically highlighted vide email dated Date of plaintiff counsel's reply email sent by the Plaintiff's counsel to the Defendant, the Defendant chose to enter into settlement talks with the Plaintiff.
9.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:
i.the Defendant shall be liable to make payment of an amount of Rs. Settlement amount in rupees (₹)/- (INR Settlement amount in words (INR)) to the Plaintiff in sixteen (16) instalments, commencing from Date of first installment; and
ii.in the event the Defendant defaulted in making payment of the said amount and chose to breach the said settlement/understanding between the parties, the Defendant shall be liable to pay interest @ 18% p.a. from the date of the invoice till the due date.
10.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)/- (INR Admitted liability amount in figures (INR)) and assured the Plaintiff that the complete amount would be paid in instalments by or before Deadline for payment by installments. That the Defendant assured the Plaintiff that it shall pay the complete amount of INR Total payment amount (INR)/- by or before Final payment deadline, and, in furtherance of the said arrangement, the Defendant remitted a part payment/a few instalments. The emails exchanged between the parties have been attached herewith and annexed as *Annexure P-3 (Colly.).*
11.That it was categorically admitted and undertaken by the Defendant that, should the Defendant default in payment of the aforesaid total amount and/or any instalment (as mutually agreed between the parties vide email dated Date of email recording installment agreement), the Plaintiff shall have the right to approach the Hon'ble Courts at Delhi seeking recovery of the total due amount along with agreed interest @ 18% p.a. till the date of payment.
12.That the application under reply is absolutely frivolous, devoid of any merits, and is liable to be dismissed, the Defendant having miserably failed to make out any ground in support of the present application.
REPLY TO BRIEF FACTS OF THE CASE:
1-2. That the contents of paragraphs 1 to 2 of the application are a matter of record and hence require no reply.
3-4. That the contents of paragraphs 3 to 4 of the application are wrong and denied. It is denied that the Plaintiff deliberately delivered only 4 motors out of 10 motors on Date of delivery of 4 motors, which delivery was delayed by approximately 4 months despite repeated requests, demands and emails by the Defendant.
5.That the contents of paragraph 5 of the application are wrong and denied. It is denied that the Name of party that cancelled defendant's order had cancelled the Defendant's order and also charged liquidated damages @ 5% from the Defendant for non-delivery of the order on time, i.e., the order dated Date of original order. It is further denied that the Defendant suffered monetary loss due to any failure of compliance on the part of the Plaintiff.
6.That the contents of paragraph 6 of the application are wrong and are denied.
REPLY TO THE GROUNDS FOR LEAVE TO DEFEND
a.That the contents of paragraph (a) of the application are denied to the extent they suggest that the suit instituted by the plaintiff is a meritless summary suit.
b.That the contents of paragraph (b) of the application are wrong and are denied. It is denied that the plaintiff has no locus standi to file the present suit against the answering defendant.
c.That the contents of paragraph (c) of the application are wrong and are 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 that the suit is liable to be dismissed as having been filed by the plaintiff after the expiry of the prescribed period.
d.That the contents of paragraph (d) of the application are wrong and are denied. It is denied that the business transaction took place in the year Year of business transaction and that the present suit was filed by the counsel for the plaintiff in the year Year suit was filed, after the expiry of more than two years, by way of concocted and clever drafting or legal manoeuvring.
e.That the contents of paragraph (e) of the application are wrong and are 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 has filed the present suit after the expiry of Period by which limitation expired, the suit of the plaintiff is barred by the law of limitation and is liable to be dismissed outright.
f.That the contents of paragraph (f) of the application are wrong and are denied. It is denied that the legal notice sent by the plaintiff is infructuous, or that the same is not maintainable in the eyes of law being time-barred.
g.That the contents of paragraph (g) of the application are wrong and are denied. It is denied that the plaintiff has not come before this Hon'ble Court with clean hands and has suppressed true and correct material facts by stating that the defendant has not made payment. It is further denied that the plaintiff did not complete the order on time; in fact, the defendant had sent numerous reminders through e-mail enquiring about the status of the order. It is further denied that the defendant had charged liquidated damages at 5% per week of the total order value from the plaintiff vide e-mail dated Date of email charging liquidated damages, and that the order was cancelled by Name of party that cancelled the order on the ground that the plaintiff failed to supply the goods to the defendant on time.
h.That the contents of paragraph (h) of the application are wrong and are denied. It is denied that the defendant suffered business loss and loss of reputation in the market due to non-delivery of goods by the plaintiff on time; hence, in view of the above, the defendant has no liability towards the plaintiff.
i.That the contents of paragraph (i) of the application are wrong and are denied. It is denied that the averments made by the plaintiff in the suit are concocted and baseless, and that the plaintiff has not come before this Hon'ble Court with clean hands and has suppressed true and correct material facts.
j.That the contents of paragraph (j) of the application are wrong and are denied. It is denied that the plaintiff got the first legal notice sent through his counsel on Date of first legal notice, and it is stated that in the alleged notice the plaintiff has cleverly concealed the true facts as to when the demand/order was placed by the defendant and when the plaintiff actually delivered/sent the goods to the defendant. It is further denied that in the entire e-mails annexed by the plaintiff there is any 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 twisted facts in favour of the plaintiff; hence the suit is liable to be dismissed.
k.That the contents of paragraph (k) of the application are wrong and are denied. It is denied that the plaintiff could have filed the present suit, if aggrieved, within the prescribed limitation period of three years, i.e. since Start date of limitation period, and that the plaintiff filed the suit after the expiry of the period of limitation; therefore the suit of the plaintiff is liable to be dismissed and the defendant is entitled to grant of leave to defend the suit unconditionally.
l.That the contents of paragraph (l) of the application are wrong and are denied. It is denied that the plaintiff failed to fulfil his part of the contract, in that the plaintiff did not deliver the goods to the defendant on time, and that the plaintiff is not entitled to the amount claimed, which stands forfeited; as such, there is no question of any interest as claimed by the plaintiff in the suit.
m.That the contents of paragraph (m) of the application are wrong and are denied. It is denied that the defendant has disclosed a defence in the present application and that, in view of the said defence, triable issues are involved in the present case. It is further denied that the defendant has otherwise a substantial defence to raise.
n.That the contents of paragraph (n) of the application are wrong and are 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. It is further denied that the suit is untenable and is liable to be dismissed. It is, however, stated that the defendant has not disclosed any facts entitling him to leave to defend the suit.
o.That the contents of paragraph (o) of the application are wrong and are denied. It is denied that, owing to a delay of more than 4 to 5 months on the part of the plaintiff company, the consignment of the defendant got cancelled by the company to which the goods were proposed to be exported.
p.That the contents of paragraph (p) of the application are wrong and are denied. It is submitted that the judgment cited in that paragraph is not applicable to the present case, and the contents thereof are denied in toto.
q.That the contents of paragraph (q) of the application are wrong and are denied. It is denied that, if the present application is dismissed, the bona fide right of the defendant to a counter-claim against the plaintiff would be lost and great prejudice would be caused to the defendant. The affidavit of the defendant does not disclose facts indicating that he has a substantial defence. The application for leave to defend does not raise any triable issue. Moreover, the defence intended to be put up by the defendant is wholly frivolous and vexatious.
r.That the contents of paragraph (r) of the application are wrong and are denied. It is denied that the defence raised in the present application is neither sham nor based on moonshine, and that the same is substantial, wherein the defendant has a valid right of counter-claim along with interest and damages on account of the unprofessional conduct of the plaintiff; and that therefore the present application for leave to defend ought to be allowed by this Hon'ble Court.
s.That the contents of paragraph (s) of the application are wrong and are denied. It is denied that the plaintiff malafidely has not supplied the complete set of the plaint to the defendant, and accordingly the present application is liable to be allowed. It is submitted that the defendant was served with the summons of the case at Address of service on defendant, along with a copy of the plaint with annexures. It is, however, stated that the plaintiff was not obliged and not required under law to supply the copies again, once the copy of the plaint along with annexures had been supplied initially at the time of service of summons of the suit upon the defendant.
The prayer clause of the application under reply is wrong and is denied, and the defendant is not entitled to any relief prayed for.
PRAYER:-
In view of the above reply, it is submitted that the application for leave to defend is absolutely false and frivolous, and the defendant has miserably failed to make out any defence in his favour for the grant of the relief prayed for; as such, the application is liable to be dismissed with costs, in the interest of justice.
It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to pass the judgment/decree in favour of the plaintiff and against the defendant.
It is prayed accordingly.
DELHIPLAINTIFF
DATED: Date of verification of affidavitTHROUGH
Plaintiff's counsel/firm name
Advocates & Legal Consultants
Counsel's office address
Email: Counsel's email address
Mob: Counsel's mobile number
IN THE COURT OF Presiding judge's name, LD. CIVIL JUDGE, DIST. CENTRAL, TIS HAZARI COURTS, DELHI
C.S. NO. Suit number (CS) OF 2023
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, Delhi-110006, who does hereby solemnly affirm and declare as under:-
1.That I am the Director of the plaintiff company in the above-noted suit and am well conversant with the facts and circumstances of the case, and am therefore competent to swear this affidavit.
2.That I state that the accompanying reply to the application for leave to defend has been drafted under my instructions; I have gone through the same and the contents thereof are true and correct to my knowledge, and the contents of the reply may kindly be read as part and parcel of this affidavit for the sake of brevity.
DEPONENT
VERIFICATION:-
Verified at New Delhi on this Date of verification of affidavit day of October, 2023, that the contents of the above affidavit are true and correct to my knowledge, that nothing material has been concealed therefrom, and that no part of it is untrue.
DEPONENT