SIMLA WHOLESALE MART Vs. BAISHNODAS KISHORI LAL BHALLA

JUDGEMENT

(1.) The plaintiffs filed a suit for recovery of Rs. 60,000/-. It is stated in the plaint that the defendants purchased goods from the plaintiffs and in that connection advanced certain payments. The cheques issued by the defendants in favour of the plaintiffs were dishonoured and as such the plaintiffs have ascertained a definite sum which according to them is due from the defendants. The contest of the defendants in their written statement is that the plaintiffs and the defendants entered into business dealing and their account was open, mutual and current. The said account is not yet finally settled, and unless that is done no definite amount can be found as due from the defendants to the plaintiffs. There is also an objection as to the payment of interest because according to the defendants the same was never stipulated. In fact, according to defendants, they withheld payment because either goods defective in quality were received or there was short supply of goods. It is also submitted that freight was charged which was not due and payable. It appears, there was some talk between the parties for settlement and in that context the defendants submitted that plaintiff had agreed to accept Rs. 8077.41 from the defendants in final settlement.

(2.) Now an application is moved by the plaintiffs under Order 12, Rule 6 of the Civil P. Code, alleging that upon admission of fact a decree can be passed against the defendants for the sum of Rs. 8077.41. As the pleadings stand between the parties, the defendants have no doubt asserted that as a result to mutual talk the sum of Rs. 8077.41 was settled to be paid finally to the plaintiffs, but according to them even for that amount a decree cannot be passed as the plaintiffs have not sued on the basis of settlement of open, mutual and current account, but they have sued for the price of goods supplied to the defendants. In para No. 6 of the written statement the pleading is as follows:--

(3.) It is further stated in paras 9 and 12 of the written statement as follows:--