PENGUIN BOOKS LIMITED Vs. BOOK SALES COMPANY

JUDGEMENT

(1.) By this application under Order 37 Rule 3(5) of the Code of Civil Procedure Code (for short 'CPC'), the defendants seeks unconditional leave to defend the suit instituted by the plaintiff for recovery of the price of goods sold, together with interest. In the application it is, inter alia, claimed that no amount is due to the plaintiff from the defendants; the suit as framed does not fall within the ambit of Order 37 CPC and the defendants have substantial defence to put forth.

(2.) As per the plaint the suit is for recovery of fixed liquidated demand in money payable by the defendants to the plaintiff with interest arising on an enactment i.e. on four invoices raised against the defendants for the supply of books. According to the plaintiff, on defendant No.2's assurance that the payment would be made within 180 days of the date of supply, books were sold to the defendants. However, on demand, the defendants refused to liquidate their liability towards the plaintiff and, therefore, the present suit under Order 37 CPC had to be filed for recovery of Pound Sterlings 14895/50, with interest.

(3.) In the application it is stated that since the plaintiff has founded its claim on the invoices allegedly issued to the defendants, the claim cannot be said to be arising on an enactment within the meaning of Order 37 Rule 1(2)(b)(ii) CPC; the transaction in question was to be governed by an agreement arrived at between the parties orally in the first instance, but reiterated by the defendants vide their registered letter dated 11/08/1997 to the plaintiff; as per the agreed terms and conditions the defendants made every attempt to sell the books at a price to match the invoice price, together with expenses incurred and 10% profit thereon, but they were unable to recover even the freight and other charges (agreed to be deducted therefrom); the consignments of books supplied were sold by the defendants for a total sum of Rs.3,05,000.00 whereas the expenses incurred by them in respect of clearing charges, freight, godown charges etc., along with 10% profit due to them, amounted to Rs.3,21,149.00 and, therefore, the defendants are not liable to pay any sum to the plaintiff. It is also claimed that in fast the plaintiff is liable to pay a sum of Rs.16,149/- to the defendants towards the said transaction as per the terms and conditions agreed upon between the parties.