PANJAB PEN HOUSE Vs. SAMRAT BICYCLE LIMITED

JUDGEMENT

(1.) Plaintiff has filed the present suit against the defendant under Order 37 of the Code of Civil Procedure (hereinafter called 'Code') on the allegations that the plaintiff is a registered partner hip firm carrying on business under the name and ktyle of M/s. Panjab Pen House with Sh. Mohan Lal Ghai as one of its registered partaer. The defendant had been purchasing goods on credit from the plaintiff from. time to time and had also been making the payment of the bills. The defendant is then alleged to have purchased goods by three different bills dated 12-9-87, 17-11-87 and 19-11-87 for a total amount of Rs. 6,17,945.80. The defendant made part payment of these bills leaving a balance of Rs. 5,21,294.50 as on 30-7-88. The defendant had also issued a cheque dated 23-7-1988 drawn on the Punjab National Bank, Asaf Ali Road toward further part payment But on presentation the cheque was dishonoured.

(2.) While changing and hitting its registered office from the Union Tenitory of Delhi to the State of Uttar Pradesh, the defendant, acknowicdged in writing its liability for payment of the aforesaid bills vide leiter dated 20-2-1986. The defendant is also alleged to have issued form 'H' under the Sales Tax Act for other bills bat did not issue the. required form in re:pect of the aforesaid thiee bils. Therefore he is also alleged to be liable to pay sales tax at the. rat of 10% on the amount of these bills. In addition to the above amounts, the plaintiff also claim interest at the rate of 24% per annum from 19-11-87 to 2-10-8 S and also pending and future interest. The total claim of the plaintiff as detailed in para-6 of the plaint in for Rs. 6,70,479.50 P. It also includes cost incurred in issuing a legal notice to the defendant.

(3.) On being served, defendant movec present application for grant of un-conditional Ieave to defend the suit. It is stated in this application that this suit was not triable under Order 37 of the Coda because it is neither based on any bill of exchange, Hundi or promissory note nor for recovery of any debt or liquidated amount on the basis any written contract or any enactment or any guarantee as provided in Older 37 rule I of the Code. The defendant also claimed that the goods purported to be covered by the aforesaid bills were in fact never received by the defendant at it place of business namely Gauri Ganj where the plaintiff continues to make the supplies. The records of the defendant maintained in this respect did not show if the goods covered by these bill had actually been received. In fact the plaintiff had submitted duplicate bills at it: registered office and had assured the defendant that the goods had been supplied at its factory site. It was on account of such an assurance of the plaintiff that the eutry of the hills was made by the defendant at its head office subject to clarification and intimation from the factory site, if the goods' covered by the aforesaid bills had been received or not. The defendant had contemplated change of registered office from Delhi to Uttar Pradesh and since at that time there were entries of the duplicate bills given to them by the plaintiff that an entry was made in the books wherea. in fact, goods were never received. Thus the defendant denied its liability to pay any amount to the plaintiff including sales' tax, legal notice charges or interest.