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IN THE COURT OF
SH. KARTIK TAPARIA; LD. CIVIL JUDGE; DIST. CENTRAL; TIS HAZARI COURTS, DELHI.
C.S. NO. ___ OF
2023.
IN
THE MATTER OF:
_______________________________ : PLAINTIFF
VERSUS
_________________ : DEFENDANT
N.D.O.H.: ______
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
__________________
Advocates & Legal Consultants
___________________,
New Delhi-110014.
Email: ________________
Mob: __________________
IN THE COURT OF
SH. KARTIK TAPARIA; LD. CIVIL JUDGE; DIST. CENTRAL; TIS HAZARI COURTS, DELHI.
C.S. NO. ____ OF
2023.
IN
THE MATTER OF:
________________________ : PLAINTIFF
VERSUS
_______________________ : DEFENDANT
N.D.O.H.: _________
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._______ 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 __________ vide which Plaintiff had categorically directed the
Defendant to make the payment of the due and admitted amount (being Rs. ______/-,
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 _________, however, when the mischief being played by the
Defendant
was categorically highlighted vide email dated _______ 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 _______ and ______ 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. _______/- (INR ____________)
to the Plaintiff vide 16 installments, starting from _____________; 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 _________, a
settlement agreement/arrangement was proposed by the Plaintiff’s counsel (under
the Plaintiff’s instructions), and accordingly, vide email dated __________
the Defendant admitted its liability to the tune of INR __________/-
(INR ___________), and assured the Plaintiff that complete amount will be paid
to the Plaintiff vide installments by or before _______. That the
Defendant
had assured the Plaintiff that it shall make payment of the complete amount of
INR _______/- to the Plaintiff by or before _____, 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 __________ ), 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 __________
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 __________. had canceled the order of defendant and
also charged LD @ 5% from the defendant for non-delivery of order on time i.e. _________.
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 _____and the
present suit is filed by the counsel of plaintiff in the year of ______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. ____ and since the plaintiff has filed the present
suit after expiry of ____ 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 ________, even the order was cancelled by ___________
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 _________ 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 ________ 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
_________________
Advocates & Legal Consultants
________________.
Email_______________
Mob: _____________
IN THE COURT OF
SH. KARTIK TAPARIA; LD. CIVIL JUDGE; DIST. CENTRAL; TIS HAZARI COURTS, DELHI.
C.S. NO. ___ OF
2023.
IN
THE MATTER OF:
_________________________ : PLAINTIFF
VERSUS
_______________ : DEFENDANT
AFFIDAVIT
Affidavit
of Mr. ________, Director of M/s. _________, Delhi-110006, 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
