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IN THE COURT OF SH. PAWAN SINGH RAJAWAT, LD. CCJ-ARC-ACJ, SAKET COURT, NEW DELHI
Civil Suit No. 36 of 2015
In the matter of:
MATRIX CELLULAR (INTERNATIONAL) SERVICES LTD. ...PLAINTIFF
Versus
PARVEEN KUMAR ...DEFENDANT
APPLICATION ON BEHALF OF THE APPLICANT UNDER ORDER XXXVII RULE 5 OF THE CPC SEEKING LEAVE TO UNCONDITIONALLY DEFEND THE SUIT FILED BY PLAINTIFF UNDER ORDER XXXVII OF CPC FOR RECOVERY OF AN AMOUNT OF RS. 24,757/- [RUPEES TWENTY FOUR THOUSAND SEVEN HUNDRED FIFTY SEVEN ONLY] WITH PENDENTE-LITE AND FUTURE INTEREST AGAINST THE APPLICANT
MOST RESPECTFULLY SHOWETH:
It is most respectfully submitted that the applicant has received
the Summons for Judgment dated ____________ issued by this
Hon’ble Court in above-mentioned Suit under Order XXXVII of
CPC sub Rule 4 and Rule 3 on ___________. Therefore, the
applicant is filing this application under rule 5 of Order XXXVII of
CPC within the time stipulated therein seeking leave to
unconditionally defend the instant suit disclosing such facts
which are sufficient to entitle the applicant to defend the present
suit.
PRELIMINARY OBJECTIONS:
A. THE PRESENT SUIT IS NOT MAINTAINABLE UNDER
ORDER XXXVII OF THE CPC;
1. In the respectful submissions of the Applicant Defendant,
the present suit filed by the Plaintiff under Order XXXVII of
the CPC is absolutely misconceived and is not
maintainable at-least under the said provisions of CPC. It is
submitted that a suit under Order XXXVII is only
maintainable and applies to the class of suit mentioned
under Order XXXVII (1)(2). It is to be noted that a bare
perusal of the suit and the documents filed along with the
present suit, by no stretch of imagination, the present suit
can be termed to be a class of suit falling under Clauses
(a) and (b)(i) to (iv) of Order XXXVII Rule (1)(2) CPC.
2. That the present suit warrants outright dismissal inasmuch
the plaintiff has simple and baldly asserted that there was
a mutual agreement between the parties in relation to the
alleged understanding of payment to the tune of Rs.
10,000/- per annum. It is pertinent to state here that the
plaintiff has not brought on record any document, much
less compelling or cogent so as to suggest that there was
in fact any such understanding between the plaintiff which
can constitute and be termed as a “Written Contract”
between the Plaintiff and Defendant. It is submitted that as
per the catena of Judgments it is clear that to maintain a
summary suit the plaintiff must show that the suit falls
within the predicates of Order XXXVII. That even if
assuming for the sake of arguments, while denying the
same that there was any “mutual understanding” between
the plaintiff and the applicant company to the effect as
stated in the suit, it is submitted that such a case does not
fall within the scope of being tried as a summary suit
inasmuch as there is no written agreement placed on
record of this Hon’ble Court by the plaintiff which could
corroborate the claims made in the suit by the plaintiff and
as such there is no relief that falls within the ambit of
Order XXXVII has been sought from this Hon’ble Court for
which reason the captioned matter cannot be proceeded
with in the nature of a summary suit.
B. THE CLAIMS UNDER THE PRESENT SUIT IS BARRED BY
TIME AS PER THE PROVISIONS OF THE LIMITATION
ACT, 1963:
1. That even if the averments in the suit were to be taken to
be a gospel truth, the plaintiff himself asserts there to be a
mutual agreement between himself and the applicant
company as per which the plaintiff was allegedly promised
to be comprehensively paid Rs. 10,000/- (Rupess Ten
Thousand Only) per annum towards his professional fees,
which was nonetheless an annual contract for rendering
professional services. It is submitted even for the sake of a
hypothetical analysis, if seen, in view of the foregoing
averment of the plaintiff alone, it is clear that the cause of
action in favor of the plaintiff for preferring a suit for the
recovery kept arising every year from the alleged breach
of the understanding between the parties i.e. non payment
of the alleged agreed amount after completion of every
year of professional services. It is submitted that such
cause of action kept arising in favor of the plaintiff for the
relevant years when there was a breach of the mutual
understanding and the payment allegedly due to the
plaintiff was not received by him.
2. That in view of the ex-hypothesis brought out in the
preceding paragraph, without prejudice to the rights and
contentions of the applicant to dispute the same, it is
submitted that at best the plaintiff can only seek relief
from this Hon’ble Court as regards the alleged amount
payable by the applicant company only for the period of
2012 to 2015 and that too is neither proved not admitted
by the Defendant Company. It is submitted that the
payments alleged to be due from the year 2005 uptil 2011
as per the own averments of the plaintiff have become
time barred and as such the said claims are not
maintained ever otherwise as per the provisions of the
Limitation Act, 1963. It is therefore crystal clear that the
alleged payments for the years 2005 to 2011 are hit by
limitation and are as such hopelessly barred by time and
the plaintiff cannot bring a suit to this Hon’ble Court for
the recovery of such payments which are alleged to be
due from the applicant company.
C. THIS HON’BLE COURT DOES NOT HAVE THE
TERRITORIAL JURISDICTION TO ENTERTAIN AND TRY
THE PRESENT SUIT:
1. That the instant suit deserves to be dismissed by this
Hon’ble Court at its very threshold inasmuch as this
Hon’ble Court lacks territorial jurisdiction to entertain the
present suit on account of the fact that which is also
apparent from the averments of the plaintiff in his own
suit.
2. That even assuming for the sake of arguments but denying
the same, that the plaintiff was approached by the
authorized representative of the applicant company at
Patiala House Courts in his chamber No. 64 Patiala House
Courts where there was an alleged mutual understanding,
the plaintiff has failed to bring on record any document
which could establish that such understanding was arrived
at between the parties at Patiala House Courts. It is
pertinent to mention that the plaintiff himself admits in the
captioned suit that the matter filed against one Shri Sushil
Kumar, Prorietor of M/s AAR ESS & CO. in relation to which
he was allegedly appearing before the Patiala House
Courts was transferred in the year 2008 and the same was
thereafter being taken up by the Hon’ble Court at Dwarka.
It is therefore submitted that the cause of action therefore
cannot to be said to have been arisen on 25.02.2015
within the territorial jurisdiction of this Hon’ble Court
inasmuch as the matter was being tried at Dwarka Courts
much before the filing of the instant suit since the year
2008, and as per the averments made by the Plaintiff the
cause of action first arose for the present suit on
25.02.2015. Importantly, on the said date no proceedings
were pending before the Patiala House Courts.
3. It is also pertinent to mention that the bill alleged to be
issued to the applicant company by the plaintiff on
25.02.2015 also does not give rise to any cause of action
and also the address of the office of the plaintiff is also
therefore immaterial in deciding the territorial jurisdiction
of this Hon’ble Court in terms of Section 20 CPC. It is
therefore submitted that captioned suit is not maintainable
as brought out hereinabove and this Hon’ble Court lacks
territorial jurisdiction to deal with the same
D. FAILURE ON THE PART OF THE PLAINTIFF TO PLACE
ON RECORD ANY CREDIBLE DOCUMENT OR PROOF
ESTABLISHING AGREEMENT AS TO PAYMENT OF RS.
10,000/- PER ANNUM AS DEMANDED UNDER THE
INSTANT PROCEEDINGS:
1. That the payments alleged to be due in favor of the
plaintiff are unfounded, false, baseless and frivolous. It is
submitted that the plaintiff has only based his claim on a
so called “mutual understanding” between him and the
applicant company. It is pertinent to note that the plaintiff
has utterly failed to substantiate the averments made in
the plaint by any material document on record.
2. That the plaintiff is not entitled to any relief from this
Hon’ble Court as the only documents which have been
filed by the plaintiff along with the suit are demand letters
termed as bills dated 13.05.2013 and 25.02.2015 which
too do not find even a whisper of any mutual
understanding between the plaintiff and the applicant
company and are as such vague. It is submitted that the
plaintiff has not placed on record any cogent document
therefore to show that there was in fact any amount due
from the applicant company and that the same was
payable to him much less the claim of Rs. 10,000 per
annum totaling to Rs. 1,10,000/-. The onus to prove the
alleged understanding purely lies on the Plaintiff herein.
3. That it is also apparent on the face of the record that the
plaintiff has not placed thereon any credible document
which could even suggest or imply the possibility of there
being any contractual relationship between the two parties
with regard to the alleged claims of the plaintiff and in the
absence of which it cannot lie in the mouth of the plaintiff
to say that the applicant company was under any
obligation to make any payment whatsoever to the
plaintiff leave aside the claim under the present suit.
PARAWISE REPLY ON MERITS IN SUPPORT OF THE
SUBMISSIONS MADE UNDER THE ABOVE PRELIMINARY
OBJECTIONS:
1. That the contents of Para 1 of the suit are wrong and denied.
It is a matter of record that the present suit is filed under
Order XXXVII of the CPC but it is however vehemently denied
that no relief which does not fall within the ambit of Order
XXXVII Rule 2 has been claimed in the plaint. It is submitted
that as already brought out hereinabove, the plaintiff has not
placed any written agreement on record of this Hon’ble Court
and as such the plaintiff is not entitled to any relief from this
Hon’ble Court inasmuch as the present matter is filed in the
nature of a summary suit which is not maintainable in the
absence of any written agreement.
2. That the contents of Para 2 of the plaint are a matter of
record and nothing beyond the record is admitted.
3. That the contents of Para 3 of the plaint are wrong and
denied. It is wrong and denied that in June, 2003 the plaintiff
was approached at his office at Chamber No. 64, Patiala
House Courts, New Delhi by authorized representative of M/s
Bell Ceramics Limited to file and conduct for and on behalf of
M/s Bell Ceramics Limited criminal complaint case U/s 138 of
The Negotiable Instruments Act against Sushil Kumar,
Proprietor of M/s AAR ESS & Co. It is submitted that the
plaintiff is put to strict proof of the foregoing assertion made
in the plaint. Rest of the Para is wrong and denied.
4. That the contents of Para 4 of the plaint are wrong and
denied. It is wrong and denied that it was mutually agreed
between the plaintiff and the authorized representative of M/s
Bell Ceramics Limited that the plaintiff will be
comprehensively paid Rs. 10,000/- (Rupees Ten Thousand
Only) per annum towards his professional fees and for all
expenses to be incurred in respect of court proceedings. It is
submitted that the plaintiff has made a bald allegation
pertaining to their being a mutual agreement between the
parties to the captioned suit where there is none. It is further
submitted that the plaintiff has malafidely taken up the plea
of there being a mutual agreement so as to file a summary
suit against the applicant herein and it is a matter of record
that no document has been placed on record by the plaintiff
to even suggest that there was any such agreement between
the plaintiff and the applicant company. It is categorically
denied that the Defendant Company had ever agreed to pay
the amount of Rs. 10,000/- per annum as contended by the
Plaintiff.
5. That the contents of Para 5 are wrong and denied. It is correct
that on 13.06.2003 a criminal complaint case U/s 138 of the
Negotiable Instruments Act was filed against one Shri Sushil
Kumar, Proprietor of M/s AAR ESS & CO. in the court of ACMM,
Patiala House Courts, New Delhi, however, the plaintiff is put
to strict proof thereof. It is however denied that the said
Complaint was filed on the terms of payment of fee and
expenses as alleged by the Plaintiff herein.
6. That the contents of Para 6 are wrong and denied. It is wrong
and denied that on 16.06.2005 the plaintiff received a sum of
Rs. 5,000/- (Rupees Five Thousand Only) from M/s Bell
Ceramics Limited representing that the balance amount of
annual comprehensive payment for the year 2004. It is
submitted that the same is nothing except concoction of the
plaintiff which are far fetched and prompted by ill-motives
which lack merit more so in light of the fact that there is no
documentary evidence on record of this Hon’ble Court to
prove the same.
7. That the contents of Para 7 of the plaint are wrong and
denied and the plaintiff is put to strict proof thereof.
8. That the contents of Para 8 of the wrong and denied and the
plaintiff is put to strict proof thereof.
9. That the contents of Para 9 are wrong and denied. It is wrong
and denied that repeatedly the plaintiff demanded his
outstanding annual payments from the authorized
representative of M/s Bell Ceramics Limited coming for
attending the Court dated allegedly. It is further wrong and
denied that every time the plaintiff was informed that the
payment has to be disbursed from the Corporate Office of M/s
Bell Ceramics Limited at Vadodara, Gujarat for which
requisition has already been made. It is submitted that the
plaintiff has made such averments without bringing to this
Hon’ble Court any communication about such exchange of
understanding between the two parties and is therefore not
capable of sustaining in law, and is emphatically denied.
10. That the contents of Para are wrong and denied and the
plaintiff is put to strict proof of the averments made in the
Para under reply.
11. That the contents of Para No. 11 are wrong and denied. That
the contents relating to those of issuance of the letter dated
13.05.2013 by the plaintiff is a matter of record and nothing
beyond the record is admitted. It is however submitted that
the same was issued without there being any cause in favor
of the plaintiff as no payment whatsoever was due to be
cleared by the applicant. Rest of the para is wrong and
denied. The Defendant denies issuance of any letter dated
13.05.2013 or the receipt thereof.
12. That the contents of Para 12 are admitted to be true and
correct.
13. That the contents of Para no. 13 are wrong and denied. It is
wrong and denied that in December, 2013 the plaintiff
contacted Shri Yogesh Medirata, Legal Head of M/s Orient Bell
Limited on Mobile No. 9810771063 or that the plaintiff
informed him about pending court case of M/s Bell Ceramics
Limited. It is further wrong and denied that Shri Yogesh
Mendiratta assured to settle all outstanding payments of the
plaintiff at final conclusion of the case as the case at that
time was listed for final arguments. It is submitted that the
plaintiff is put to strict proof as regards the averments made
in the Para under reply.
14. That the contents of Para 14 are wrong and denied and the
plaintiff is put to strict proof thereof.
15. That the contents of Para 15 of the plaint are wrong and
denied and plaintiff is put to strict proof thereof.
16. That the contents of Para no. 16 are a matter of record and
nothing beyond the record is admitted, however, the contents
of the letter /bill dated 26.02.2015 are denied and not
admitted.
17. That the contents of Para No. 17 of the plaint are wrong and
denied. It is wrong and denied that after receiving final bill on
27.02.2015, Shri Parveen Kumar Nim, an employee of the
defendant, sent SMS from Mobile No. 9811789060 to the
plaintiff on Mobile No. 9811278762 for fixing appointment. It
is further wrong and denied that on the next day Shri Parveen
Kumar Nim met the plaintiff at his office and was provided
with complete case file. It is further wrong and denied that
before leaving Mr. Parveen Kumar Nim assured expeditious
payment of final bill of the plaintiff. It is further wrong and
denied that subsequently many SMS were exchanged
between the plaintiff and Shri Parveen Kumar Nim but the
defendant has not made any payment against the final bill to
the plaintiff. It is submitted that the copies of the SMS
exchanged between the plaintiff and Shri Parveen Kumar Nim
do not bring out any admission of any particular sum of
liability and such does not advance the case of the plaintiff as
the same does not substantiate the relief sought from this
Hon’ble Court. The copies of SMS placed on record by the
Plaintiff are of no consequence.
18. That the contents of Para 18 are wrong and denied. It is
wrong and denied that deliberately and without any justified
reason the defendant has been withholding the payment of
final bill of the plaintiff and therefore bedsides final bill
amount the defendant is also liable to pay interest @ 24% per
annum with effect from 25.02.2015, as alleged. It is
submitted that the plaintiff is not entitled to any payment
from the defendant, much less an interest on the money
alleged to be due.
19. That the contents of Para No. 19 are wrong and denied. It is
wrong and denied that the defendant has been intentionally
avoiding discharging its alleged liability towards the plaintiff
despite repeated reminders and demands. It is true and
correct that the defendant got served with the Demand
Notice dated 25.05.2015 by the plaintiff whereby the plaintiff
demanded a sum of Rs. 1,10,000/- along with interest @24%
p.a. with effect from 25.02.2015 within 7 days from the
receipt of the demand notice. Rest of the Para is wrong and
denied. The contents of the legal notice dated 25.05.2015 are
not admitted.
20. That the contents of Para 20 are wrong and denied. It is
wrong and denied that vide reply dated 22.06.2015, the
defendant vaguely avoided liability towards the plaintiff and
therefore the plaintiff has to approach the Hon’ble Court with
the captioned suit. It is submitted that the applicant company
in its reply dated 22.06.2015 with sincere intentions asked for
documents on the basis of which the demand of the money
under the notice was demanded. It is noteworthy that instead
of providing such documents to the applicant
company/defendant, the plaintiff filed the instant suit before
this Hon’ble Court with the evil intention of pressurizing the
applicant company.
21. That the contents of Para 21 are vague, baseless hence
wrong and denied inasmuch as the plaintiff is not entitled to
any relief from this Hon’ble Court as sought vide the instant
suit.
22. That no cause of action ever arose in favour of the plaintiff as
also highlighted above and the present suit is liable to be
dismissed with heavy costs upon the plaintiff.
23. That no cause of action arose within the territorial jurisdiction
of this Hon’ble Court and therefore this Hon’ble Court lacks
the necessary jurisdiction to deal with the instant suit.
24. It is submitted that appropriate court fee has not been affixed
and the present suit is liable to be dismissed.
As regards the prayer made to this Hon’ble Court, it is submitted
that no relief that falls within the ambit of Order XXXVII has been
sought from this Hon’ble Court and as such the prayer made to
this Hon’ble Court is baseless and even other frivolous.
TRIABLE ISSUES BY THIS HON’BLE COURT
It is submitted that a number of issues arise in the instant matter
that will have to decided by this Hon’ble Court some of which are
stated hereinabove:
1) Whether the present suit is barred by limitation?;
2) Whether this Hon’ble Court has the territorial jurisdiction to
entertain the instant suit?;
3) Whether the relief as claimed by the plaintiff is liable to be
awarded?;
4) Whether the present suit is maintainable as a summary suit
before this Hon’ble Court.
PRAYER
In the light of the above mentioned facts and circumstances it is
most graciously prayed from this Hon’ble Court that it may be
pleased to:
(a)allow the instant application and grant un-conditional
leave to defend under Order XXXVII (5) CPC.
(b)treat the present suit as an ordinary suit and issue
summons as per procedure of CPC;
(c) pass any other order(s) which this Hon’ble Court may
deem fit and proper to make in the facts of the instant
matter.
Place: New DelhiDate: 07/09/2015
Applicant ORIENT BELL LIMITED
Through:
ANSHUJ DHINGRA LAW OFFICESAdvocates
1204, Nirmal Tower 26, Barakhamba Road,Connaught Place, New Delhi – 110 001
Tel: 011-41514922/41514936
IN THE COURT OF SH. PRASHANT SHARMA,
LD. ARC/ACJ/CCJ, PATIALA HOUSE COURTS, NEW DELHI
Suit No. S-80/2015
In the matter of:SHRI RUCHIR BATRA, ADVOCATE …..PLAINTIFF
Versus
M/S ORIENT BELL LIMITED ….. APPLICANT
AFFIDAVIT
I, Parveen Kumar Nim, S/oSh. Bahadur Singh aged about 37 years, presently working as Deputy Manager- Legal, Orient Bell Limited having Corporate Office situated at Iris House, 16 Business Centre, Nangal Raya, New Delhi – 110046, do hereby solemnly affirm and declare as under:
1. I say that the deponent is the authorized representative of the applicantcompany in the captioned suit and well conversant with the facts of the same, hence competent and authorized to swear this affidavit.
2. That the accompanying application for grant of leave to defend has been drafted by my counsel upon my instructions and no part of it is false.
3. That the contents of this affidavit are true and correct and nothing material has been concealed therefrom.
DEPONENT
VERIFICATION:
Verified at Delhi on this day of September, 2015 that the contents of this affidavit are true and correct to the knowledge of the Deponent and nothing material has been concealed therefrom.
DEPONENT