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TMI Blog2003 (12) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... tional leave to contest the suit, the facts in brief as they emerge from the plaint, application and admitted documents may be noted. 3. Plaintiffs case in brief is that it is engaged, inter alia, in the business of manufacturing and sale of Permanently Solid Lubricated Silicore HDPE Telecom Ducts, its associated accessories, tools, cable jet, super get machines etc. Defendant approached the plaintiff and made enquiries regarding the supply of the above, products. Plaintiff gave its offer on 22-6-2000, setting out the price and other terms. Plaintiff reL vised the above offer vide its letter dated 25-10-2000. Defendant in response to the plaintiffs revised offer, issued five purchase orders, detailed as under : (1) Purchase Order No. BIPL-P/1025/ PO1038 dated 21-9-2000 (ii) Purchase Order No. BIPL-P/1025/ PO1049 dated 9-10-2000 (iii) Purchase Order No. BIPL-P/1025/ PO1065 dated 8-11-2000 (iv) Purchase Order No. BIPL-P/1025/ PO1066 dated 8-11-2000 (v) Purchase Order No. BIPL-P/1025/ PO 1088 dated 15-12-2000 4. The goods, ordered by the defendant, were supplied by the plaintiff company and delivered to the defendant. Plaintiff has given in para 6 of the plaint, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Sanjay Jain, learned counsel for the defendant. Suit is based on running account and not maintainable within the ambit of Order xxxvII CPC. Mr. Jain submitted that as per the averments made in the plaint as also in the affidavit of summons for Judgment, suit is purportedly based on running account, maintained by the plaintiff of the transactions with the defendant in the books of accounts. Accordingly, he submits that the suit is based on running account and would not fall within the ambit of Order xxxvII CPC. The said submission is misconceived. The suit is based on a written contract comprising the offer, its acceptance by issuance of purchase orders and raising of invoices in execution thereof. These constitute the written contract. The amounts claimed are those due in the suit under the above written contract. Additionally, reliance has been placed on the acknowledgment and confirmation of balance issued by the defendant. The mere averment in the plaintiff that the plaintiff also maintains a running account, reflecting the price of the goods supplied and the payments made therefore, does not change the nature of the suit as in one being based on a running account. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to Delhi jurisdiction . Apart from this, Clause 10, as noticed above, confined the Jurisdiction to New Delhi, as per the invoice raised after issuance of the purchase order. Payments have also been made at New Delhi. Undoubtedly, this is a case, where the material part of cause of action, namely, offer emanated from Delhi, acceptance by issuance of purchase order was received at Delhi. Contract was concluded at New Delhi. The payments have been received at Delhi. In a case, where the purchase orders or invoices carry conflicting clauses purporting to have exclusion of jurisdiction, at variance, provisions of Section 20 of the Code of Civil Procedure are applicable to resolve the issue. 11. The following observations of the Supreme Court in ABC Laminart Pvt. Ltd. v. A. P. Agencies, Salem, are relevant for this purpose : The jurisdiction of the Court in matter of a contract will depend on the situs of the contract and the cause of action arising through connecting factors. A cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnum. A perusal of the terms and conditions on the invoices show that interest at the rate of 24 per cent per annum was payable. Hence, the submission of Mr. Jain that there was no agreed rate of interest and the claim for interest at the rate of 24 per cent per annum is not correct as the conditions of invoice itself stipulated the rate of interest itself. 14. Point IV Delayed supplies, damages and loss suffered by the defendant raise friable issues entitling defendant to leave to contest. Mr. Jain submits that defendant was part of a consortium, comprising BPL Broadband Network Pvt. Ltd., Spectranet Ltd. Spice Communications Ltd., Bharti Mobile Ltd., Indusind Media Communication Ltd. Defendant's objective was to provide an excellent fibre based IP network with additional capacity of fibres and bandwidth to lease out to other service providers as an infrastructure provider. It is in this connection that the defendant approached the plaintiff for supply of telecom ducts. Time was the essence of the contract. Defendant required digging of trenches on public roads, laying the cable ducts and restoring the dug up areas to their original condition for use of public. Hence, ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct itself is ₹ 97,500/- while the loss claimed is ₹ 2.5 lakhs. As regards, the delay In supplies, it may be noticed that one of the terms of the invoice was that time was not the essence of the contract. The defendant in terms of Condition 11 of the invoice were entitled to raise debit notes in case of rejection, replacement and shortages were not made available within 60 days. There is nothing on record to show that the defendants raised any debit notes. The plain-tiff in the rejoinder has denied any loss being caused on account of short supply or delayed supplies. There is nothing on record to show that the penalty of ₹ 3.3 lakhs allegedly levied by Bangalore Mahanagar Palika was attributable to any defective or delayed supply by the defendants. The plaintiffs could have no liability for any penalty imposed on the defendant on account of latter's failures, which could even be for non-performance by the defendants, on account of variety of reasons not directly relatable to the plaintiffs supply. What is significant is that contemporaneously the defendants have acknowledged their liability. The defendants on their letterheads, as late as 27th September, 2001, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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