M/s Abhani Distributor vs M/s Mirik Health Foods Pvt. Ltd.

M.L. Mehta, J.—The petitioner assails order dated 4.4.2012 whereby leave to defend was granted to the respondent in the suit filed against him by the petitioner (plaintiff there in Suit U/O 37 CPC). The suit was filed for recovery of Rs. 3,24,518/- with interest. It was averred that an agreement dated 21.04.2006 was executed between the petitioner and the respondent whereby the petitioner was to act as a forwarding agent of the respondent for its business in Kolkatta. A sum of Rs. 2,00,000/- was stated to have been given by the petitioner to the respondent as security. It was alleged that since the respondent did not entrust its business activities to the petitioner for Kolkatta, the petitioner terminated the agreement vide its letter dated 20.05.2006 and asked for return of the security amount. The defendant/respondent having failed to return, the petitioner wrote few letters. In response, the respondent also wrote a letter asking for the copy of the original agreement, despite that it was having a copy thereof. Ultimately, this led to the petitioner filing of the instant suit U/O 37 CPC wherein the respondent filed application for leave to defend and which came to be allowed vide impugned order by the Learned ADJ. This is the order which has been assailed by the petitioner in the instant petition. The pleas which have been taken by the respondent include that the petitioner has suppressed the material facts inasmuch as, as per the terms of the agreement a sum of Rs. 15,00,000/- was required to be deposited by him, whereas he deposited only Rs. 2,00,000/- as a token amount of security. It was averred that since the petitioner failed to deposit the balance agreed security amount, the deposit of security amount of Rs. 2,00,000/- was forfeited. The respondent has also taken the plea that it had incurred huge expenses for advertisement and towards wages and salaries of the staff appointed, but since the petitioner neither deposited the balance agreed amount of security nor complied with other terms of the agreement such as arranging godown, etc. and breached the terms of the agreement, thus the security amount was forfeited It is next averred that the petitioner had filed a criminal case at Kolkatta and now has chosen to file this suit at Delhi which had no territorial jurisdiction, since the petitioner had already chosen the jurisdiction of Kolkatta.

Having heard the learned counsel for the parties and from the averments as noted above, it would be seen that the issues which were raised by the respondent in the leave to defend application were certainly triable. The issue of the responsibility of the petitioner to pay Rs. 15,00,000/- as security and its being unable to pay the same and resultantly the respondent being entitled to forfeit the same was a triable issue, which would require to be determined in the suit filed by the petitioner. Similarly, the issue regarding the petitioner having failed to comply with certain other terms and conditions of the agreement and resultantly the respondent having incurred certain expenses as noted above, and entitled to forfeit the security amount, was another important triable issue. In view of this, I see no illegality or infirmity in the impugned order. The petition is hereby dismissed.