Case Note & Summary
The respondent, Evonik Degussa GmbH, filed a summary suit against the appellant, Aksh Optifibre Limited, for recovery of Euros 11,37,866.30 being the price of goods sold and delivered. The respondent had raised indents upon the appellant for supply of goods, which were accepted. The goods were manufactured and supplied, and documents including invoices were forwarded through banks. The appellant admitted receipt of goods but paid only Euros 67,400, leaving the balance unpaid. The learned Single Judge granted the appellant leave to defend the suit subject to depositing the rupee equivalent of the claim amount within eight weeks. The appellant appealed, contending that it had raised triable issues including that the contract was governed by German law, that the claim was time-barred under German law, and that the respondent had failed to comply with certain conditions. The Division Bench held that the defences were not bona fide and did not raise any triable issues. The court noted that the appellant had admitted receipt of goods and had not disputed quality or quantity. The court found that the appellant had not raised any defence that was plausible or required trial. The court upheld the order of the Single Judge, dismissing the appeal with costs.
Headnote
A) Civil Procedure - Summary Suit - Leave to Defend - Order 37 Rule 3 CPC - Conditional Leave - The court considered whether the appellant had raised triable issues entitling it to unconditional leave to defend. The court held that the defences raised were not bona fide and did not raise triable issues, and therefore the condition of depositing the entire claim amount was justified. (Paras 5-10)
B) Contract - Sale of Goods - Price - Liability - The appellant admitted receipt of goods but disputed liability on grounds of foreign law and limitation. The court held that the appellant had not raised any bona fide defence and that the condition of deposit was reasonable. (Paras 4-10)
Issue of Consideration
Whether the learned Single Judge erred in granting conditional leave to defend instead of unconditional leave, and whether the condition of depositing the entire claim amount was excessive.
Final Decision
The appeal is dismissed with costs. The order of the learned Single Judge granting conditional leave to defend is upheld.
Law Points
- Summary suit
- leave to defend
- conditional leave
- Order 37 CPC
- triable issues
- unconditional leave
- deposit condition
Case Details
2014 LawText (BOM) (08) 47
Appeal (Lodging) No.246 of 2014 in Summons for Judgment No.10 of 2013 in Summary Suit No.2066 of 2012
S.J. Vazifdar, A.K. Menon
Mr.Pravin Samdani, Senior Counsel with Mr.Pradeep Bakhru i/b Wadia Ghandy & Co. for the Appellant; Mr.Kedar Wagle for the Respondent.
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Nature of Litigation
Appeal against order granting conditional leave to defend in a summary suit for recovery of price of goods sold and delivered.
Remedy Sought
The appellant sought unconditional leave to defend the summary suit.
Filing Reason
The appellant contended that the learned Single Judge erred in imposing a condition of depositing the entire claim amount as a condition for leave to defend.
Previous Decisions
The learned Single Judge granted leave to defend subject to deposit of the rupee equivalent of Euros 11,37,866.30 within eight weeks.
Issues
Whether the appellant raised any triable issues entitling it to unconditional leave to defend.
Whether the condition of depositing the entire claim amount was excessive or unreasonable.
Submissions/Arguments
The appellant argued that the contract was governed by German law and the claim was time-barred under German law.
The appellant argued that the respondent failed to comply with certain conditions regarding documents.
The respondent argued that the defences were not bona fide and did not raise any triable issues.
Ratio Decidendi
In a summary suit under Order 37 CPC, leave to defend may be granted unconditionally only if the defendant raises a bona fide defence that raises triable issues. If the defence is not bona fide or does not raise triable issues, the court may impose conditions, including deposit of the entire claim amount.
Judgment Excerpts
There is no dispute that the respondent delivered the goods of the requisite quality and quantity to the appellant.
On merits therefore, there is little if anything to be said in favour of the appellant.
The defences raised by the appellant are not bona fide and do not raise any triable issues.
Procedural History
The respondent filed Summary Suit No.2066 of 2012 for recovery of Euros 11,37,866.30. The appellant filed Summons for Judgment No.10 of 2013 seeking leave to defend. The learned Single Judge granted conditional leave to defend subject to deposit of the rupee equivalent of the claim amount. The appellant appealed against that order.
Acts & Sections
- Code of Civil Procedure, 1908: Order 37 Rule 3
