DEEPANSHU GOEL Vs. VIJAY TRADING CO.

JUDGEMENT

(1.) An application has been filed on behalf of defendant No.2 and 3 under Sec. XXXVII Rule 3(5) of Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC) seeking Leave to Defend the suit for Recovery, filed on behalf of the plaintiff.

(2.) It is submitted in the application that the suit is not maintainable as it is hopelessly barred by time. The suit for recovery of the alleged amount pertains to the period 9/6/2012 to 24/1/2014 for the goods that were supplied by the plaintiff to the defendant during this period. The accounts were settled for the aforesaid period between the parties on 2/2/2014 and after minor deductions, an amount of Rs.3,34,60,548.00 was found due for which defendant No.2 issued a cheque which was dishonored due to 'insufficiency of funds' on 19/2/2014. It is asserted that the suit has been filed on 2/3/2017 after a lapse of three years of limitation and is, therefore, barred.

(3.) The defendants have further asserted that the suit under Order 37 CPC can be maintained for 'a debt or liquidated amount' for which there is 'an Agreement' in writing showing the admitted liability or the liquidated debt. The present suit is based primarily on the Bills, Memos generated by the plaintiff for the alleged sale and delivery of goods. Each transaction is a separate and distinct transaction for which separate Memo/ Bill was issued. The Invoices cannot be taken as Agreement containing liquidated demands. The plaintiff has not produced any delivery challan receipts of the goods showing delivery of goods, as claimed by him. Plaintiff is relying on documents/ VAT returns issued by Sales/ VAT Authority for showing delivery of goods. These documents are nothing but the reproduction of the entries and returns filed by the plaintiff with the Authority and therefore, do not prove delivery of goods in any case. There being no Agreement, or any admitted liability or debt on the part of the defendants, the present suit is not maintainable under Order 37 of CPC.