IN THE COURT OF SH. xx LD. CIVIL JUDGE; DIST. CENTRAL; TIS HAZARI COURTS, DELHI.

C.S. NO. xx.

IN THE MATTER OF:

xxxx           : PLAINTIFF

VERSUS

xxxx                     : DEFENDANT

N.D.O.H.: 21.11.2023

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.

--------------------------------------------------------------------------------------

DELHI                                                                    PLAINTIFF

DATED:              THROUGH

                                                                                           xxxx

IN THE COURT OF SH. xx; LD. CIVIL JUDGE; DIST. CENTRAL; TIS HAZARI COURTS, DELHI.

C.S. NO. xx

IN THE MATTER OF:

xxxx.          : PLAINTIFF

VERSUS

xxxxxx                                    : DEFENDANT

N.D.O.Hxxx

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 bundle of lies and misrepresentations and does not make out any case for granting leave to defend the suit and is thus liable to be dismissed with cost.

2.       In terms of order dated ……. Defendant was served with the summons of suit under Order 37 Rule 3(1) of CPC for the first time on ………. by regd. post. Defendant didn’t enter appearance at all. Defendant was required to enter appearance within 10 days as provided under Order 37 Rule 3(1) of CPC. The plaintiff is entitled to judgment and decree in his favour on this ground alone.

3.       That even otherwise, defendant is not entitled to leave to defend and the same has to be refused as leave to defend application does not disclose facts which indicate that he has substantial defence. The application for leave to defend has not disclosed any triable issue. Moreover, the defence intended to be put up by the defendant is totally frivolous and vexatious.

4.       It is submitted that the defendant had been served with the summons of the case on ………. address along with copy of plaint with annexures. It is however stated that the plaintiff was not obliged and not required under law to supply again once the copy of the plaint along with annexures has been supplied initially at the time of summons of the suit to the defendant. The case of the plaintiff is based on the cheques issued by the defendant and falls within Order 37 of CPC.

5.       That in view of the above, the defendant is not entitled to leave to defend the suit and the plaintiff is entitled to judgment / decree forthwith.

6.       That under Section 118 of N.I. Act, 1881 there is presumption of consideration 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 during the course of transaction between the parties, the said Defendant towards the payment of the part due amount to the Plaintiff had also issued numerous postdated cheques in favor of Plaintiff, however, most of the said cheques as and when presented were dishonored. That some of the cheques, as available with the Plaintiff, issued by the Defendant during the course of its transaction with the Plaintiff have been attached and annexed as Annexure P-2 (Colly.)

7.       That with time numerous issued were faced by the Plaintiff as the Defendant had failed to remit the 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 till the time the balance payment was not remitted to the said Plaintiff.

8.       That with time an amount of/around Rs. 3,31,232/- was 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 said Plaintiff had duly served upon the Defendant a Legal Notice dated 08.12.2020 vide which Plaintiff had categorically directed the Defendant to make the payment of the due and admitted amount (being Rs. 3,31,232/-, due on the date of the said Legal Notice). That after the receipt of the said Legal Notice, the Defendant initially chose to raise false and frivolous issues vide its email dated 04.01.2021, however, when the mischief being played by the Defendant was categorically highlighted vide email dated 27.01.2021 sent by the Plaintiff’s counsel to the Defendant), the Defendant chose to enter into settlement talks with the Plaintiff.

9.       That vide email dated 27.01.2021 and 28.01.2021 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. 3,31,232/- (INR Three Lakh Thirty One Thousand Two Hundred and Thirty Two) to the Plaintiff vide 16 installments, starting from 27.01.2021 till 20.04.2022; and

                                               ii.      Should the Defendant default in making payment of the said amount and chose 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 due date.

10.     That vide email dated 27.01.2021, a settlement agreement/arrangement was proposed by the Plaintiff’s counsel (under the Plaintiff’s instructions), and accordingly, vide email dated 28.01.2021 the Defendant admitted its liability to the tune of INR 3,31,232/- (INR Three Lakh Thirty One Thousand Two Hundred and Thirty Two), and assured the Plaintiff that complete amount will be paid to the Plaintiff vide installments by or before 30.04.2022. That the Defendant had assured the Plaintiff that it shall make payment of the complete amount of INR 3,31,232/- to the Plaintiff by or before 30.04.2022, and in lieu of the said arrangement the said Defendant had also remit part payment/remitted few installments. 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 chose to default in payment of the above said total amount and/or any installment (as mutually agreed between the parties vide email dated 27.01.2021 &28.01.2021 ), 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.

12.     That the application under reply is absolutely frivolous and is devoid of any merits and the same is liable to be dismissed as the defendant has miserably failed to make out any ground for the present application.

REPLY TO BRIEF FACTS OF THE CASE:-

1-2.   That the contents of paras 1-2 of the application are matter of record. Hence, need no reply.  

3-4.   That the contents of paras 3-4 of the application are wrong and denied. It is denied that the plaintiff deliberately delivered only 4 motors out of 10 motors on 10.01.2019 to the defendant which was late for approx. of 4 months after repeated request, demand and email by the defendant.

5.       That the contents of para 5 of the application are wrong and denied. It is denied that unfortunately, the x had canceled the order of defendant and also charged LD @ 5% from the defendant for non-delivery of order on time i.e. August 2018. It is further denied that defendant had to face monetary loss due to failure of compliance by the plaintiff.

6.       That the contents of para 6 of the application are wrong and denied.

REPLY TO THE GROUND OF LEAVE TO DEFEND:-

a.       That the contents of para a) of the application is denied to the extent that meritless summary suit instituted by the plaintiff.

b.       That the contents of para b) of the application are wrong and denied. It is denied that the plaintiff has no Locus Standi to file (he present suit against the answering defendant.

c.       That the contents of para c) of the application are wrong and denied. It is denied that the suit of the plaintiff is not maintainable in the eyes of law as the same is barred by law of limitation and as such the suit is liable to be dismissed being filed by plaintiff after expiry of prescribed time.

d.       That the contents of para d) of the application are wrong and denied. It is denied that the business transactions was look place in the year of 2018 and the present suit is filed by the counsel of plaintiff in the year of 2023 which after expiry of more than two year with concocted clever drafting or legal maneuvering.

e.       That the contents of para e) of the application are wrong and denied. It is denied that the plaintiff could have filed the suit within three years from the date of business transaction i.e. 2018 and since the plaintiff has filed the present suit after expiry of two years therefore the suit of the plaintiff is barred by Law of Limitation and is liable to be dismissed out rightly.

f.       That the contents of para f) of the application are wrong and denied. It is denied that the legal notice sent by the plaintiff is infructuous and same is not maintainable in the eye of few being time barred.

g.       That the contents of para g) of the application are wrong and denied. It is denied that the plaintiff has no, come before this Hon'ble Court with clean hands and has suppressed true and correct material facts by slating that the defendant has not made payment. It is further denied that the plaintiff has not completed his order on time and infect, defendant had sent numerous reminders through his E-mail for the knowing the status of order. It is further denied that the defendant had also charged the LD (a) 5% per week of total order total value from the Plaintiff vide E-mail dated 01.10.2018, even the order was cancelled xxx. as the plaintiff failed to supply the goods to the defendant on time.

h.       That the contents of para h) of the application are wrong and denied. It is denied that it is the defendant faced business loss and reputation in the market due to no. delivery of goods by the plaintiff on time, hence in view of the above said defendant has no liability towards the plaintiff.

i.        That the contents of para i) of the application are wrong and denied. It is denied that the averment made by plaintiff in the suit are concocted and baseless and even, 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 para j) of the application are wrong and denied. It is denied that the plaintiff has allegedly got send first Legal notice through his counsel on 08.12.2020 and in the alleged notice the Plaintiff has cleverly concealed the true fact that when the demand / order was placed by the defendant and when in actually Plaintiff delivered / send the goods to the defendant. It is further denied that in the entire E-mail annexed by the plaintiff it is nowhere mentioned that how and when the order was made and when the delivery of goods was done to the defendant just to arose the unnecessary cause of action with twisted facts in favor for the plaintiff hence the suit is liable to be dismissed.

k.       That the contents of para k) of the application are wrong and 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 2018 till 2021 and the plaintiff had filed the suit after the expiry period of limitation therefore the suit of plaintiff is liable to dismissed and the defendant is entitled for grant of leave to defend of the suit unconditionally.

l.        That the contents of para l) of the application are wrong and denied. It is denied that since the plaintiff has failed to fulfill his part of contract as plaintiff had not delivered the goods to the defendant on time and the plaintiff is not entitled for amount claimed which stood forfeited and as such there is no question of any interest as claimed by the plaintiff in his suit.

m.      That the contents of para m) of the application are wrong and denied. It is denied that the defendant has disclosed the defense in the present application and in view of the defense the triable issues are involved in the present case. It is further denied that the defendant has otherwise also substantial defense to raise.

n.       That the contents of para n) of the application are wrong and denied. It is denied that the plaintiff has concealed the material facts from this Hon’ble Court. It is further denied that the suit of the plaintiff is based upon totally 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 disclose any facts to entitle him for leave to defend the suit.

o.       That the contents of para o) of the application are wrong and denied. It is denied that however, owing to delay of more than 4 to 5 months on the part of Plaintiff company, the consignment of Defendant got cancelled from the company to which the goods were proposed to be exported.

p.      That the contents of para p) of the application are wrong and denied. It is submitted that the judgment cited in this para is not applicable to the present case and the contents of the same is denied in toto.

q.       That the contents of para q) of the application are wrong and denied. It is denied that if the present application is dismissed the bonafide right of the Defendant of 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 which indicate that he has 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 totally frivolous and vexatious.

r.       That the contents of para r) of the application are wrong and denied. It is denied that the defense raised in the present application is neither a sham nor based on moonshine and the same is a substantial one wherein the Defendant has a valid right of counter claim along with the interest and damages on account of the unprofessional conduct of the Plaintiff and therefore present application for leave to defend ought to be allowed by this Hon'ble Court.

s.       That the contents of para s) of the application are wrong and denied. It is denied that the plaintiff malafidely have not supplied the complete set of the suit to the defendant in view of the same the present application may kindly be allowed. It is submitted that the defendant had been served with the summons of the case on ………. address along with copy of plaint with annexures. It is however stated that the plaintiff was not obliged and not required under law to supply again once the copy of the plaint along with annexures has been supplied initially at the time of summons of the suit to the defendant.

          Prayer clause of the application under reply is wrong and denied and the defendant is not entitled for any relief prayed for.

PRAYER:-

In view of the above reply, 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 relief prayed for and as such this application is liable to be dismissed with cost in the interest of justice.    

The judgment / decree be passed in favour of the plaintiff and against the defendant.

It is prayed accordingly.

DELHI                                                                    PLAINTIFF

DATED:              THROUGH

xxxx

IN THE COURT OF SH. KARTIK TAPARIA; LD. CIVIL JUDGE; DIST. CENTRAL; TIS HAZARI COURTS, DELHI.

C.S. NO. x.

IN THE MATTER OF:

xxxx.          : PLAINTIFF

VERSUS

xxx                       : DEFENDANT

AFFIDAVIT

Affidavit of Mr.x, Director of M/s. x at x, do hereby solemnly affirm and declare as under:-

1.                 That I am the Director of the plaintiff company in the above noted case and well conversant with the facts of the case and therefore competent to swear this affidavit.

2.                 That I hereby state that reply of the accompanying reply to the application for leave to defend has been drafted under my instructions and I have gone through the same which is true and correct to my knowledge and the contents of the same have not been repeated for the sake of brevity.

DEPONENT

VERIFICATION:-

Verified at New Delhi on ___ day of October, 2023 that the contents of my above affidavit are true and correct to my knowledge, nothing is untrue therein or concealed there from.

DEPONENT