Pradeep Nandrajog, J.
1. This is a suit under Order xxxvII of the Code of Civil Procedure praying for a decree in the sum of EURO 56572 together with interest @ 18% per annum in favor of the plaintiff and against the defendant. Suit is based on two invoices, identical worded, save and except quantity and description of material and the amount payable. Leave to defend is sought by and under is No. 5607/2004.
2. Raising of the two invoices dated 9.5.2000 and 13.9.2000 is admitted by the defendant. Receipt of goods under the two invoices has been admitted by the defendant.
3. Grounds on which leave to defend the suit is prayed are two:-
(i) That an invoice is not a document which falls within the ambit of Order xxxvII Rule 2 of the Code of Civil Procedure, and
(ii) Goods supplied were defective and of sub-standard quality.
4. Pleas have been taken in the application for leave to defend pertaining to the authorization in favor of Dr. Cosima Paul who has signed the suit and 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 is 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 plaintiff.
8. At the outset, I may note that though the invoice relied upon by the plaintiff contains a stipulation that on late payment, interest would be charged, without specifying the rate of interest, plaintiff has claimed interest @ 18% per annum. While seeking leave to defend, defendant has not joined issues with the plaintiff pertaining to the rate of interest claimed by the plaintiff.
9. As per the averments made in the plaint, purchase order placed by the defendant gave the description, quantity and colour of the goods. Further, it is stated by the plaintiff that it supplied the goods as described in the purchase order, delivery effected was as per the quantity specified. Colour of the goods was as specified in the purchase order. Price indicated in the invoice was as per the purchase order. These assertions have not been denied by the defendant. Further, assertion of the plaintiff that it delivered the goods as per the invoice has not been denied by the defendant, as noted, defense is of defective/sub-standard goods.
10. While considering grant or refusal to leave to defend, it has to be considered by this court whether the defense raised is a moonshine or not; whether the defense raised requires evidence to be produced to substantiate the defense. In this context, it has to be considered whether the defense is based on evidence which is not legally and statutorily barred from being considered. It also has to be considered whether the defense is contrary to any law and should, thereforee, be ignored. For such kind of defenses, no useful purpose would be served by granting leave to defend. In a nutshell whether the inevitable end would be a decree being passed in the suit.
11. Defendant has admitted the purchase orders and the invoice in question. Receipt of goods has been admitted.
12. In a contract for supply of goods, delivery being at a future date, complete contract would require a description of the goods, subject matter of contract. Description could be by way of specification or any other manner sufficient to identify the goods. Quantity of the goods has to be specified. Place and date of supply/delivery of the goods has to be specified. Price of the goods has to be specified. It may also require, if the party desires, mode and manner of packaging of the goods.
13. Suit is based on the invoices raised by the plaintiff at the 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 plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest arising-
(i) on a written contract, or
(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or
(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.'
15. It is apparent that a suit which seeks to recover a debt or a liquidated demand in money payable by the defendant arising out of a written contract is maintainable under Order xxxvII Rule 1 as a summary suit. It is no longer res-integra that invoices/bills are 'written contracts' within the contemplation of Order xxxvII Rule 2. Reference could conveniently be made to decisions of this court reported as M/s Punjab Pen House v. Samrat Bicycles Limited, : AIR1992Delhi1 ; Corporate Voice Private Limited v. Uniroll Leather India Limited, : 60(1995)DLT321 ; Beackon Electronics v. Sylvania and Laxman Limited, 1998 (3) AD (Del) 141; and M/s. KIG Systel Limited v. M/s. Fujitsu ICIM Ltd., : AIR2001Delhi357 .
16. Learned counsel for the defendant relied upon : AIR1982Cal386 M/s. West Bengal Decorating Co. v. M/s. Damodar Das Daga; 1995 (3) AD (Del) 473 Simba F.R.P.(P) Ltd. v. Department of Tourism, Lucknow, U.P.; and : 97(2002)DLT913 M/s. A.R. Electronic Pvt. Ltd. v. M/s. R.K. Graphics Pvt. Ltd. to urge to the contrary.
17. Decisions relied upon by the defendant would reveal that on facts, i.e., after evaluation of the invoices on basis of which the suit was filed, the court held that all terms of the contract were not to be found in the invoices and for said reason it could not be said that the invoices relied upon were a written contract between the parties.
18. It is not the case of the defendant that the invoices do not conform to the purchase order. As noted, the invoices raised contain the description of the goods, quantity and price. As noted, conditions of payment stand reflected in the invoice. Additionally, delivery address also finds mentioned in the invoice. All features pertaining to a contract of sale of goods are to be reflected in the two invoices. The invoices are a complete contract, required by law, where the contract pertains to sale of goods.
19. The invoices in question would, thereforee, fall within the category of a written contract within the contemplation of Order xxxvII Rule 2 of the Code of Civil Procedure.
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 prior to delivery, had a right to inspect the case on delivery and report defects within a reasonable time of delivery. If not rejected within reasonable time, mandate of Section 42 stipulates that the defendant would be deemed to have accepted the goods.
22. Undisputably, goods under first invoice were received in the month of May, 2000 and under the second invoice in the month of September, 2000. Defendant, on receipt of the goods, did not indicate to the plaintiff that the goods were defective till as late as 31.12.2001. This was when the plaintiff had served upon the defendant a legal notice in the month of October, 2001.
23. Rejection of the goods predicated on a stand that the goods were sub-standard and defective on 31st December, 2001 is not within a reasonable period of time considering the fact that the goods under the first invoice were received in the month of May, 2000 and under the second invoice were received in the month of September, 2000. Rejection indicated on 31st December, 2001 was after one year and seven months of receipt of goods under the first invoice and one year and three months after receipt of goods under the second invoice. Defendant, as per mandate of Section 42 of the Sale of Goods Act is, thereforee, deemed to have accepted the goods.
24. Three communications from the defendant to the plaintiff being the communications dated 31.1.2001, 30.3.2001 and 3.4.2001 may be noted.
'Dear Dr. Pichler,
-Thanx for your email of 31.01.
-There is no reason to not answer your mail or fax pertaining to the overdue payments, infact when I met you in late Nov' 00 the payment for invoice 1108748 for the amount of DM 35178.14 had already been done to our bankers but it seems that due to delay of this payment beyond 180 days the Reserve Bank of India (R.B.I.) stopped the remittance & advised our bankers to get a 'No interest Charge' certification from the principal company, hence you are advised to send us a certificate to this effect immediately so that we can seek R.B.I.'s permission for release of this payment.
-Anyhow by now the payment of Inv. 1116864 amount DM 41321.- is also due so in order to avoid any further misunderstanding between us we will expedite this payment this month because this can be released immediately as it is well within the R.B.I. Credit guidelines.
-Now, coming back on the 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 promise that your money is safe & definitely will be cleared in April' 01.
* Because of these delays we had no option but to go ahead & open the L/C for Euro 23,816.84 against your PFI of 15.2.
* These goods Along with what we supplied in Jan' 01 are for the Earthquake Relief Fund hospitals run by the State Government & there is a delay in realizing the monies from them at present. In order to secure your monies we opened the L/C but we need more product to complete our orders with the Government to realize our monies.
* There is no question of non-payment whether we do business or not, we are an old company & our association is long to think about other activities.
* You will be receiving the original L/C this week or early next week if you feel like, please cooperate & send material A.S.A.P. by Air freight to New Delhi on CIF or CNF basis otherwise please send your non-acceptance to the bank with a copy to us.
* Add a few brochuresRaucher-Lohmann complete booklet Curapore/Opraflex/Cellacast brochures50 only.
Our business with you will get back to normal within the next quarter, I am sure.
Regards,
Rajan Bajaj.'
'Dear Dr. Pichler,
By the time we were ready to pay your second invoice it had also crossed 180 days & thereforee we had to apply to RBI for clearance & used the same certificate for both the invoices. We do not require another letter from yourselves & assure that during this month these payments will be cleared.
The second invoice was not paid also due to the fact that our payments were stuck with the Government & they only got released on March 31, when the Government ending the fiscal year.
So, please understand the situation that the delays are primarily due to the Government supplies made to the Earthquake areas & money realization took a long time.
Please acknowledge receipt of L/C for Euro 23816.84.
Also you were supposed to visit us this year! What are your plans, once you visit us you will have more confidence in our operations.
Regards,
Rajan Bajaj'
25. By and under the communication dated 31.1.2001, in reference to the first invoice dated 20.5.2000 as also the second invoice dated 13.9.2000, defendant acknowledged that it had to pay the amounts due under the two invoices. Pertaining to the first invoice, defendant indicated that it had instructed its bankers to remit 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 : AIR1990SC2218 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 triable issue in the sense that there is a fair dispute to be tried as to the meaning of a document on which the claim is based or uncertainty as to the amount actually due or where the alleged facts are of such a nature as to entitle the defendant to interrogate the plaintiff or to cross-examine his witnesses leave should not be denied. Where also, the defendant shows that even on a fair probability he has a bona fide defense, he ought to have leave. Summary judgments under Order 37 should not be granted where serious conflict as to matter of fact or where any difficulty on issues as to law arises. The Court should not reject the defense of the defendant merely because of its inherent implausibility or its inconsistency.'
28. In the decision reported as AIR 1930 Bom 249 Nagan Das Mathura Das v. N.V. Valmamohomed, view approved by the House of Lords was reiterated being:-
'If a buyer orders goods of a certain description, and the seller delivers goods of a different description, it is open to the buyer to reject them. But if he does not reject them but keeps the goods, even if he does so in ignorance of the fact that they are of a description different from that provided for by the contract he is debarred from rejecting the goods thereafter, and can only fall back upon a claim for damages, as upon a breach of warranty.'
29. The long gap after which goods were ostensibly rejected on the premise that they were defective/sub-standard is clearly fatal to the projected defense in the context of statutory law being Section 41 and 42 of the Sale of Goods Act.
30. In my opinion, on the facts and circumstances, no triable issue arises. is No. 5607/2004 is dismissed.
CS(OS) 953/2003
In view of dismissal of is No. 5607/2004, the suit is decreed as prayed for. Plaintiff would be entitled to costs.