Delhi High Court
Boston Scientific International B.V. vs Metro Hospital on 24 May, 2004
Author: R.C. Chopra
Bench: R.C. Chopra
JUDGMENT
R.C. Chopra, J.
1. This application under Order 37 Rule 3(5) read with Section 151 of the CPC has been filed by the defendant for unconditional leave to defend the suit. The facts relevant for the disposal of this application application briefly stated are that the plaintiff has filed a suit under Order 37 of the Code of Civil Procedure for recovery of Rs.32,38,479.40 alleging that the plaintiff had been supplying medica care equipments to the defendant. The supplies were made from time to time and parties were maintaining a running account since inception of their dealings. The defendant was making payments on account which were accepted by the plaintiff from time to time. According to the plaintiff debit balance of Rs.25,73,316.74 was outstanding against the defendants which it was liable to pay along with interest @ 18 per cent per annum as per market usage and custom. Hence the suit. In its application under Order 37 of the Code of Civil Procedure, the defendant has pleaded that this Court has no territorial jurisdiction to try the suit; that the defendant is not a legal entity and is merely a trading name of M/s U.G. Hospitals Priv te Ltd.; that all the claims in the suit are not covered by Order 37 of CPC and the medical consumables regarding which the bills have been raised were never supplied to the defendant. It is submitted that orders were placed by the plaintiff at Noida, go desk were received at Noida and all payments were made to the plaintiff at Noida. It is also pleaded that the plaintiff has failed to give credits of various payment made to it on account and the bills raised by the plaintiff are on the higher side. The p aintiff has filed a reply to the leave to defend application controverting the pleas raised by the defendant. After hearing learned counsel for the parties, this Court finds that the pleas of the defendant in regard to the territorial jurisdiction, legal entity of defendant, claim of interest @ 18 per cent per annum by the plaintiff and the disputes in regard t certain payments and pricing of the goods raise trouble issues. It cannot be said that the pleas raised by the defendant are a moonshine and the defendant has no defense to the claims made by the plaintiff. The defendant does not appear to be a legal ntity and it appears to be a unit of M/s U.G. Hospitals Pvt. Ltd. and as such it is to be seen as to whether the suit filed by the plaintiff against the defendant is maintainable or not. Similarly, the claim made by the plaintiff in regard to 18 per cen per annum interest based on trade usage and market customs also is a friable issue as there is no written agreement between the parties in regard to the payment of interest. The plea of the defendant in regard to the territorial jurisdiction of this Cou t has to be looked into as the documents on record suggest that the equipment was being supplied by the plaintiff to the defendant at Noida and the payments even were being collected by the representative of the plaintiff from defendant at Noida. The def nce that credit for all the payments made by defendant has not been given and the books of accounts relied upon by the plaintiff do not reflect the correct amount also requires investigation and trial. Accordingly, this Court is of the considered view that the plaintiff has made out a case for grant of unconditional leave to defend the suit. The application is, therefore, allowed and the leave to defend is granted unconditionally. I.A. stands disposed of.