GUPTA ENTERPRISES Vs. BISHWA MITTER BAJA

JUDGEMENT

(1.) This order will dispose of the application filed by the defendants under Order XXXVII Rule 3(5) read with Section 151 of the Code of Civil Procedure seeking leave to defend the suit instituted by the plaintiff under Order XXXII of the Code of Civil Procedure This application is opposed by the plaintiff and accordingly. I heard the learned counsel appearing for the parties

(2.) The defendants No 1 is a partnership concern of which defendants No 2 to 5 are partners The defendants No 1 carries on the business of civil construction works on contract basis and the said defendants were awarded a civil construction work at Inland Container Depot, Tughlakabad, Delhi by the Container Corporation of India sometime in 1992-93 . The defendants, after prior negotiation with the plaintiff under their letter dated 6..10.1993 sub-contracted a part of the work to the plaintiff The plaintiff executed the entire work sub-contracted to it by the defendants and raised two bills - the first bill dated 153 1993 and the second dated 20 3 1993 of which the first bill was for Rs 13.01.850/- while the second one was for Rs 7.27,600/- The defendants, during the currency of the works made payment to the plaintiff for a total sum of Rs 10,50,000 - It is alleged that the defendants through their Accountant acknowledged in writing their liability towards the plaintiff for a sum of Rs.9,56,720.00 as on 31.3 1993 and thereafter the defendants also made payment of yet another instalment of Rs 1,75,000/- vide cheque No 794412 drawn on United Bank of India on 1.5.1993 thereby leaving a balance ofRs 7,81,720/-. It is alleged that the defendants on the said date also acknowledged their liability of Rs 9.56.720/- towards the plaintiff and undertook to make payment of the same by 30 3 1993 alongwith interest Since the defendants failed to make the payment of the admitted amount due to the plaintiff, the plaintiff stated that the present suit has been filed under Order XXXVII of the Code of Civil Procedure for the recovery of the aforesaid amount.

(3.) In the present application seeking for leave to defend the defendants have averred that Shri S K Singla, who is one of the partners of M/s Gupta Enterprises, present plaintiff, was an employee working with the defendants firm from September 1990 to March 1993 at a monthly salary of Rs 4,000/- Said Shri Singla used to represent the defendants firm before various departments whose works the defendants firm had to execute and in few of the association as an employee of the defendants firm with Shri Singla a sub-contract was awarded to the plaintiff on 6. 1.1993. of which said Shri Singla was a partner. It is stated that the nature of work and job assigned to the plaintiff was mentioned in the letter dated 6 .1.1993 and on 7.1.1993 said Shri Singla requested the defendants to provide the plaintiff firm with some material required for execution of the sub-contract work Keeping in view the past association as an employee of Shri Singla the defendants agreed to provide the required material with a clear understanding that the price of the said materials supplied by the defendants to the plaintiff would be deducted out of the amount which would become payable to the plaintiff firm on account of execution of the work sub-contracted to the plaintiff. In terms of the aforesaid, during the execution of work by the plaintiff the defendants from time to time supplied materials to the plaintiff on different dates and kept/ maintained a detailed account of the material supplied by the defendants to the plaintiff The total value of the material supplied by the defendants to the plaintiff came to Rs 7,68,623 20 and after adjusting the said amount from the amount payable to the plaintiff a sum of Rs 13,096 80 remained due and payable by the defendants to the plaintiff In respect of the acknowledgement appearing in letter dated 1 5 1995 placed on record by the plaintiffs in the suit and relied upon by the plaintiff in the plaint and also during the course of arguments It is stated by the defendants that the said document is a forged one It is stated that the signature on the said document dated 1 5 1993 although were appended by defendant No 3 but the contents of the same were forged The circumstances under which a blank letterhead signed by defendant No 3 was given to said Shri Singla has been stated in the said application, which according to the defendants was later on converted to the letter dated 1.5.1993 by forcing the contents thereof