$~ 30 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) 287/2011 % Judgment dated 30.01.2014 M/S COIM INDIA PVT LTD ..... Plaintiff Through: Mr.Pankaj Chaudhary, Advocate versus REXOR INDIA LTD & ORS Through: None. ..... Defendant CORAM: HON'BLE MR. JUSTICE G.S.SISTANI G.S.SISTANI, J (ORAL) I.A. 8952/2011 1. This is an application for summons for judgment. No further orders are required to be passed in the application and the application is accordingly disposed of. CS(OS) 287/2011 2. Despite the matter being passed over once and called a second time, none is present on behalf of the defendant. The plaintiff has filed the present suit under Order 37 of the Code of Civil Procedure. After service of summons in the prescribed form, the defendant filed address for service and thereafter an application was filed by the plaintiff for summons for judgment. 3. In terms of Sub Rule (5) of Rule (3) of Order 37 CPC, defendant was to file an application for leave to defend. In the order dated 20.5.2013 it was noticed that counsel for the defendant had informed the court that an CS(OS)No.287-2011 Page 1 of 4 application for leave to defend had been filed, but no such application was listed. Vide order dated 12.7.2013 an application [I.A.No.10714/2013] filed by the defendant seeking condonation of four days' delay in filing the application for leave to defend, was allowed by imposing costs of Rs.3,000/- on each of the defendants and time was granted to the plaintiff to file reply to the application for leave to defend. Advance copy of the reply to the leave to defend application was handed over to counsel for the plaintiff in court on 25.7.2013. 4. On the last date of hearing counsel for the defendant was not ready with the matter and sought an adjournment for today. Despite the matter being passed over once and called a second time, none is present on behalf of the defendant today. 5. It may also be noticed that although reply to the leave to defend and rejoinder to the reply, are already on record, but there is no application for leave to defend on record. It is seems that either no such application was filed or it was returned with objections. This is evident from the fact that neither the plaintiff has mentioned number of the application for leave to defend in reply nor the defendants, applicants mentioned any I.A. number while filing the rejoinder. 6. The plaintiff has filed the present suit under Order 37 CPC for recovery of Rs.72,14,950/-. As per the plaint, the plaintiff deals in items used in the manufacture of shoe soles, synthetic leathers and adhesives, and polyster system like polyol, Isocyanate Urecom, Catalyst, Polyurathanes, Polyol Exter etc. The defendants have been purchasing goods from the plaintiff even prior to 26.4.2008 on credit basis. Goods had been supplied to the defendants and Sales-tax Form „C‟ / Declaration Form had been received. 7. Copies of invoices have been filed by the plaintiff for the period 26.4.2008 to 20.2.2010, when orders were placed and goods were CS(OS)No.287-2011 Page 2 of 4 supplied, further details of invoices have been given in the plaint. The defendant no.2 to 4 purchased goods from the plaintiff in the total sum of Rs.65,14,425.44. 8. According to the plaintiffs, goods were supplied to the satisfaction of the defendants. The receipt of the goods vide invoices were duly acknowledged by the defendants. The defendants company has also issued in favour of the plaintiffs a declaration form VAT-D1 in respect of invoices raised from 26.4.2008 to 17.2.2009 with a promise to pay the outstanding payment. 9. In the case of M/s.KIG Systel Ltd. Vs. M/s.Fujitsu ICIM Ltd. AIR 2001 DELHI 357, it was held: “The defendant / applicant has also challenged the maintainability of the issue under Order XXXVII of the C.P.C., stating that “there is no debt or liquidated demand in money payable to defendant-company (sic. Read plaintiff) and/or based on a written contract”. It is no longer res integra that Invoices/ Bills are „written contracts‟ within the contemplation of this Order. Reference is directed to Messrs. Punjab Pen House v. Samrat Bicycle Ltd., AIR 1992 Delhi 1, Corporate Voice (Pvt.) Ltd. vs. Uniroll Leather India Ltd., (1995) 60 DLT 321, and Beacon Electronics v. Sylvania and Laxman Ltd., 1998(3) Apex Decisions (Delhi) 141 : (1998 AIHC 3118). There is, thus no hesitancy in holding that the present suit is a suit which should be tried under the summary procedure of Order XXXVII of the CPC.” 10. Sub-Rule(6) of Rule 3 of Order XXXVII CPC, reads as under: “[3] (6) At the hearing of such summons for judgment:(a) CS(OS)No.287-2011 if the defendant has not applied for leave to defend, or Page 3 of 4 if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or (b) 11. xxxxx” There is no application for leave to defend on record. Assuming such an application has been filed, the same was not registered and even otherwise none is present to press the application for leave to defend. Accordingly, the present suit is decreed. Plaintiff would be entitled to pendente lite interest @8% and future interest at the same rate from the date of filing of the suit till the date of decree and from the date of the decree till realization. G.S.SISTANI, J JANUARY 30, 2014 ssn CS(OS)No.287-2011 Page 4 of 4