Asfar Suit - Matrix Cellularertetererte

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.


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.


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.


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

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