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Civil Miscellaneous Application No.4055 of 1986 in Suit No. 230 of 1986, decided on 8th March, 1987.
---O.XXXVII, R.3--Leave to appear and defend suit--Recovery of price of goods sold by plaintiffs to defendants on credit--Defendants making out a plausible defence only to the extent of a certain amount being charged as interest on principal amount--Unconditional leave to appear and defend suit granted to that extent--No defence made out for principal amount--Suit decreed for same.
Iqbal for Applicants.
Rashreed A . Rizvi for Respondent.
The plaintiff has filed this suit for Rs.4,61,333.00 It has been alleged that the defendants had purchased on credit of 30 days from the plaintiffs goods of the total value of Rs.3,68,268.85. In support of this claim the plaintiff has filed photo copy of the annexures A to L. It has been alleged that after several requests and hard pursuasion the defendants acknowledged their liability and issued a crossed cheque No. C/5 462636 dated 15-3-1985 drawn on the Muslim Commercial Bank Limited, Elphinstons Street Branch, for Rs.3,68,268.85 in favour of the plaintiff No. 1 towards the payment to both the plaintiffs due and payable to them under the invoices. The cheque was presented and dishonoured. The defendants have not paid the said amount so far.
The defendants have filed application under Order XXXVII, Rule 3 CPC for leave to appear and defend the suit. The defendants 'lave admitted to have purchased the goods for Rs.3,68,268.85. Mr. Rizvi Advocate has contended that the goods under invoices Annexures C, H and K were purchased on the three years credit basis. In this regard the learned counsel has referred to these invoices. In other invoices term. of. payment has been shown as 'cash/cheque within 30 days'. In Annexures 'C', 'H' and 'K' 30 days has not been mentioned and term of payment are "cash /cheque". Form the omission to mention the period for payment the learned counsel for the defendants infers that it was sold on three years credit basis. If this was the intention of the plaintiff to give credit for three years the same would have been mentioned in the invoices as mentioned in other invoices. The terms of payment are cash/cheque without specifying the time. In the circumstances the payment becomes due immediately on delivery of goods. The plea is based on conjecture and inference which can not be drawn from the invoices. The plea cannot afford any defence.
The next contention of the learned counsel is that the plaintiffs have charged Rs.93,065.00 as interest at the rate of 14 % which was never agreed between the parties nor any such, condition is mentioned in the invoice. Mr. Iqbal Haider the learned counsel for the plaintiffs has stated that legal notice was served on the defendants and they were called upon to pay interest at the rate of 14 % P.A. In the absence of any agreement it will be for the plaintiffs to show on what basis interest can be charged at this rate.
In view of this discussion the defendants have made a plausible defence only for the claim to the extent of Rs.93,065.00 being the interest on Rs.3,68,268.85. I, therefore, grant unconditional leave to appear and defend the suit only in respect of claim of the plaintiffs for Rs.93,065.00 charged as interest. So far the plaintiff's claim of Rs.3,68,268.85 is concerned as no defence has been made out I decree the suit for the said amount against the defendants with interest at the rate of 10% P.A. from the date of suit till recovery with proportionate costs.
M.Y.H./H-47/K Leave to defend granted.
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