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TMI Blog2014 (8) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... ounting to Rs. 68,65,618/-, along with interest amounting to Rs. 7,07,904/-, that is, for a total amount of Rs. 75,73,512/-. The respondent filed an affidavit for leave to defend, raising a dispute as to the quality of goods supplied to the respondent and also challenging the interest on delayed payments. By the impugned order, the City Civil Court granted unconditional leave to defend, to the respondent. Aggrieved thereby, the petitioner is before this Court. 4. Ms. Manisha Lavkumar, learned advocate for the petitioner, has submitted that the respondent has admitted its outstanding dues payable to the petitioner vide letter dated 25.11.2010. A perusal thereof would go to show that the respondent has mentioned the cheques that have been given by it and in the body of the letter, has asked the petitioner to send the statement of accounts in detail, so as to enable it to make the payment on schedule. It is submitted that the contents of this letter have been misread by the City Civil Court while passing the impugned order. The respondent was very well aware that the cheques issued by it were dishonoured for insufficient funds and its liability has clearly been admitted. 5. That, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose cheques have been added in the statement of accounts by the petitioner, along with the interest. 9. That, no amount is mentioned in the letter dated 25.11.2010, therefore, it cannot be stated that the respondent is admitting any liability for any amount. In fact, the respondent has asked the petitioner to prepare proper accounts as the accounts prepared by the petitioner show an inflated figure, by including the cheques given as security by the respondent. The respondent does not admit the accounts of the petitioner. 10. That, the respondent has categorically stated in the affidavit for leave to defend that nothing is due and payable by the respondent. The respondent has denied the accounts of the petitioner as being false. Moreover, a sizeable amount has already been paid by the respondent to the petitioner. The petitioner has included late interest payment in the statement of accounts. There is no agreement between the parties regarding interest, therefore, this part of the account is illegal and unjustified and wrong debits have been made in the account by the petitioner. 11. That, the City Civil Court has correctly considered that the defence raised by the respondent is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the power and the discretion to pass the impugned order, and such power and discretion have been exercised judiciously. If the petitioner is aggrieved, the suit can be expedited. However, the impugned order, as it stands, does not call for interference under the supervisory jurisdiction of this Court. 18. In rejoinder, learned advocate for the petitioner has mostly reiterated the submissions advanced earlier. 19. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record. 20. If the prayer made in the plaint of the suit filed by the petitioner is perused, it is clear that the petitioner is claiming interest along with the amount due and further interest at the rate of 6% per annum over the total amount of Rs. 75,73,512/-, which includes the principal claim, plus the interest. 21. In Zonal Manager v. Akhilbhai B. Mehta (supra), this Court has held as below: 7. Having heard both the learned advocates and having gone through the facts of the case and record it will have to be decided whether the present dispute as has been raised by the plaintiff is falling within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case. Learned advocate for the petitioner has not chosen to distinguish this judgment or to make any submissions regarding the aspect regarding charging of interest. There is no denying the fact that not only has the petitioner claimed interest in the suit but the statement of account prepared by the petitioner, a copy of which is annexed to the petition, also clearly shows that interest claimed for late payment of interest has been debited to the account of the respondent and interest of Rs. 7,07,904/- has been added to the principal claim of Rs. 68,65,618/-. There is no material on record to show that there is an agreement between the parties regarding the claim of interest. Moreover, the claim for interest cannot be said to be a liquidated demand. 23. A perusal of Order 37, Rule 1, sub-rule 2 of the Code makes it clear that the dispute does not fall in any of the sub-clauses of sub-rule 2, in view of the claim of interest made by the petitioner. This alone raises a triable issue. Therefore, in the view of this Court, unconditional leave to defend has rightly been granted by the City Civil Court. 24. In Ratilal B. Shah And Co. v. Pari Prafullchandra Kantilal (supra), the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered to be an admission of liability that any amount is outstanding from the respondent to the petitioner, as has rightly been held by the City Civil Court. 27. The judgments cited on behalf of the petitioner may now be considered. 28. The judgment of High Court of Delhi in M/s. Shyam Dri Power Ltd. v. Bhav Shakti Steel Mines Private Limited in Company Petition No. 475 of 2009, has been rendered in a Company Petition for winding-up under Sections 433 read with Section 434 of the Companies Act, 1956. The Delhi High Court has held that the defence set up by the respondent therein that the goods were defective, has been taken for the first time after the winding-up petition had been filed and there was no communication on record to show that the defect had ever been communicated to the petitioner. The said judgment has been rendered within the parameters of Sections 433 and 434 of the Companies Act, 1956, in a petition for winding-up. The observations made by the Delhi High Court in that judgment would not be relevant in the context of a summary suit under Order 37 of the Code. Whether the defence put up by the respondent herein is ultimately found to be a good one, or not, is for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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