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TMI Blog2018 (3) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... provided in this Clause 8 - the contention of the defendant is rejected that plaintiff is not entitled to the amount of ₹ 38,45,961/- as claimed in the present suit. The subject suit is a commercial suit under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. Section 35 CPC has been amended by the legislature with respect to commercial cases filed under this Act. Courts are mandated to impose actual costs as also costs under different headings including for the defendant frivolously defending the suit. Accordingly while dismissing the leave to defend application, and in view of the fact that plaintiff has been harassed by the frivolous defences of the defendant who in spite of his liability is failing to pay the requisite amount to the plaintiff, the leave to defend application is dismissed with actual costs. The leave to defend application is dismissed. - CS (COMM) No. 1099/2016 - - - Dated:- 9-3-2018 - MR. VALMIKI J. MEHTA J. Plaintiff Through: Mr. Niraj Singh, Advocate. Defendant Through: Mr. Avneesh Garg and Mr. Pravin Sharma, Advocates. VALMIKI J. MEHTA, J (ORAL) I.A. No. 11669/2017 (fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaintiff also claims an amount of ₹ 38,45,961/- which the plaintiff had to pay to the sales tax authorities on account of the defendant not providing the requisite C-Forms with respect to the transactions which were subject matter of the agreement dated 6.5.2013. 8. By the leave to defend application defendant seeks unconditional leave to defend. One defence which is raised and argued before this Court on behalf of the defendant is that under the business relations which were put to an end with effect from 30.11.2012 the plaintiff had to collect goods which were dropped in the warehouse of the defendant of about ₹ 4 crores and the plaintiff promised to give huge discounts to the defendant to dispose of the stock and this was because plaintiff requested the defendant to retain the stock with the defendant for some time. The second ground urged in the leave to defend application is that by the present suit the plaintiff cannot claim the amount of ₹ 38,45,961/- inasmuch as there is no such liquidated liability specified in the agreement dated 6.5.2013 entered into between the parties. The third defence raised in the leave to defend application is that at the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the agreement dated 6.5.2013, however the crystallized amount of ₹ 38,45,961/- being the amount paid by the plaintiff to the sales tax department is not disputed by the defendant in the present leave to defend application. In my opinion as per Clause 8 of the agreement dated 6.5.2013 the liability of differential tax will be borne by the defendant and this is in so many clear words provided in this Clause 8. Therefore the contention of the defendant is rejected that plaintiff is not entitled to the amount of ₹ 38,45,961/- as claimed in the present suit. 11. On the issue of any agreement between the parties of liability of plaintiff to give discounts to the defendant, it is not in dispute that the subject agreement dated 6.5.2013 has admittedly been entered into between the parties because defendant does not deny that defendant has executed this agreement dated 6.5.2013, and this is not even the case as argued before this Court on behalf of the defendant today. Once there is a written agreement between the parties, then what are the terms of the agreement can only be seen from the terms of the agreement in view of Section 91 of the Indian Evidence Act, 1872. In vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of execution of this Agreement: a) Cheque dated May 31, 2013 for an amount of ₹ 1,00,00,000/- (Rupees One Crore Only) in favor of Reebok India Company; b) Cheque dated June 30, 2013 for an amount of ₹ 20,00,000/- (Rupees Twenty Lakh Only) in favor of Reebok India Company; c) Cheque dated July 31, 2013 for an amount of ₹ 5,00,000/- (Rupees Five Lakh Only) in favor of Reebok India Company; and d) Cheque dated August 31, 2013 for an amount of ₹ 5,00,000/- (Rupees Five Lakh Only) in favor of Reebok India Company; 13. Three years from 31.5.2013 comes to an end on 1.6.2016, but the present suit is filed on 30.5.2016 i.e within the three years period of limitation. Therefore the argument urged on behalf of the defendant that suit is barred by limitation is on the face of it without substance and is rejected. 14. The principles with respect to grant of leave to defend have been recently crystallized by the Supreme Court in the judgment in the case of IDBI Trusteeship Services Ltd. Vs. Hubtown Ltd., (2017) 1 SCC 568. The relevant paras of this judgment crystallizing the position with respect to grant or non-grant of leave to defend is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Supreme Court in the case of IDBI Trusteeship Services Ltd. (supra) once a Court finds the defence to be frivolous or vexatious or that defence is not a substantial defence and there is no genuine triable issue, then Court is entitled to dismiss the leave to defend application. 16. As already discussed above the pleas of the suit being barred by limitation or pleas of a contract other than what is stated in the agreement dated 6.5.2013 are clearly frivolous and vexatious defences and do not raise any triable issue. Also the defendant cannot contend with respect to non-payment of liability of C-Forms because Clause 8 specifically provides that either C-Forms will be given or liability incurred by the plaintiff will be paid and this liability is not denied by the defendant to be the sum of ₹ 38,45,961/-. Therefore the defendant is not entitled to leave to defend on the vexatious defences raised which do not raise any genuine triable issues or substantial defences. 17. The subject suit is a commercial suit under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. Section 35 CPC has been amended by the legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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