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TMI Blog2005 (1) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... verified the pleadings on behalf of the defendant but during arguments said plea was not pressed by the counsel for the defendant. 5. As per the suit, plaintiff supplied the goods described in the invoice dated 9.5.2000 to the defendant pertaining to order dated 25.4.2000 placed by the defendant on the plaintiff and raised the invoice as per agreed rates. Further, plaintiff supplied the goods detailed in the invoice dated 13.9.2000 pursuant to order dated 4.8.2000 placed by the defendant and raised the invoice on the agreed rates. 6. The two invoices, inter alia, stipulate as under:- (i) Conditions of payment: Prompt-payment discount i.e. discount for payment within 14 days; net within 30 days. In case of late payment, we charge interest on arrears. 7. In IA No. 5607/2004, being the application by and under which leave to defend is prayed for, it is stated that the goods which were received under the two invoices were found to be defective. Plaintiff was required to take back the goods. The goods are stated to be still lying with the defendant. It is stated that the customers of the defendant returned the goods. Accordingly, it is stated that no amount is payable to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he time of effecting supplies pursuant to the purchase orders. The invoices which have been raised would reveal that the specification of the goods, quantity and rate has been indicated. Term of payment has also been indicated. 14. Order XXXVII Rule 1 reads as under:- 1. Courts and classes of suits to which the order is to apply.- (1) This Order shall apply to the following Courts, namely:- (a) High Courts, City Civil Courts and Courts of Small Causes; and (b) Other Courts: Provided that in respect of the Courts referred to in clause (b), the High Court may, by notification in the Official Gazette, restrict the operation of this Order only to such categories of suits as it deems proper, and may also, from time to time, as the circumstances of the case may require, by subsequent notification in the Official Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this Order as it deems proper. (2) Subject to the provisions of sub-rule (1), the Order applies to the following classes of suits, namely:- (a) suits upon bills of exchange, hundies and promissory notes; (b) suits in which the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edure. 20. Section 41 and Section 42 of the Sale of Goods Act reads as under:- 41. Buyer's right of examining the goods.- (1) Where goods are delivered to the buyer which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract. (2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract. 42. Acceptance.- The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. 21. As per the mandate of Section 41 of the Sale of Goods Act, the defendant not having inspected the goods in question p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject of 'Help' to reach the Earthquake affected state of Gujarat let me inform you that in the past 2 weeks a lot of Lohmann dressings etc. available ex-stock has already been picked up by the Rescue authorities sent free of cost to Gujarat. The requirement exists in large numbers for Dressings/Cellacast so if you can rush supplies of whatever is available it will add a lot to the image of Raucher-Lohmann in India plus to this humanitarian cause. -Yes, whatever payment delays are at our end, needless to worry they are safe in the process now even though we have contributed a lot as a company to the Country's crisis situation. -Please let us have your comments on what's available so that we can advise you how where to ship! Best regards, Rajan Bajaj. Dear Dr. Pichler, Please refer your email of 29.3. * Both your payments are awaiting RBI clearance the necessary 'No Interest Certificate' has been submitted. Due to year ending March 31 there seems to be a delay in processing this approval from RBI. This is not in our hands, we can only follow up with the Government authorities- normally it get cleared- one thing we promis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the payment. Defendant indicated that banker did not effect remittance on instructions from the Reserve Bank of India. Defendant stated that Reserve Bank of India required that the plaintiff should issue a certificate that it would not be charging any interest for delayed payment. Pursuant to the second invoice, defendant acknowledged that payment was due. Defendant stated that it would be taking steps to expedite release of payment. 26. By and under the other two letters/facts/E-Mail messages, defendant acknowledged liability to pay. 27. The Hon'ble Supreme Court in the decision Ms. Raj Duggal v. Ramesh Kumar Bansal in the context of leave to defend observed (para 3):- Leave is declined where the Court is of the opinion that the grant of leave would merely enable the defendant to prolong the litigation by raising untenable and frivolous defenses. The test is to see whether the defense raises a real issue and not a sham one, in the sense that if the facts alleged by the defendant are established there would be a good or even a plausible defense on those facts. If the Court is satisfied about that leave must be given. If there is a friable issue in the sense that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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