HALCYON ASIA MANAGEMENT Vs. HOTEL BLUE STONE

JUDGEMENT

(1.) CM No. 10113/2012 (delay in re -filing)

(2.) THIS Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment of the trial Court dated 20.3.2012 decreeing the suit of the respondent/plaintiff under Order 37 CPC for recovery of Rs.4,05,898/ - alongwith interest at 10% per annum simple and the cost of the suit by dismissing leave to defend application filed by the appellant/defendant. The facts of the case are that the respondent/plaintiff was a hotel and it provided rooms for stay of the employees of the appellant/defendant. With respect to the occupancy of different dates invoices were raised, which were not paid and hence the subject suit came to be filed. Before filing of the suit the appellant/defendant by its e -mail dated 31.5.2010 had acknowledged and accepted the liability.

(3.) A reading of the aforesaid para and other reasons given in the impugned judgment shows that at no point of time during the contemporaneous period of December, 2009 to June, 2010 was a single letter/e -mail written by the appellant/defendant to the respondent/plaintiff that the rooms have not been utilized and charges will not be paid. Therefore, making this averment only for the first time in the leave to defend application cannot in any manner assist the appellant/defendant, and therefore, this defence is clearly a moonshine. Further, the trial Court has very rightly relied upon the acknowledgment made by the appellant/defendant in its letter dated 31.5.2010, however, when I put a query to the counsel for the appellant/defendant as to why that e -mail which has been relied upon by the trial Court has not been filed in the present appeal, counsel for the appellant/defendant could not give any reason as to why the e -mail dated 31.5.2010 was not filed. In my opinion, non filing in this appeal of a vital document relied upon by the trial Court clearly goes against the appellant/defendant.