IN THE COURT OF SH. PAWAN SINGH RAJAWAT, LD.

CCJARC-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
APPLICANT

ON

BEHALF

UNDER

OF

ORDER

THE

XXXVII

RULE 5 OF THE CPC SEEKING LEAVE

TO UNCONDITIONALLY DEFEND THE
SUIT

FILED

ORDER

BY

PLAINTIFF

XXXVII

OF

CPC

UNDER
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
Honble 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 Honble 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
Honble 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 Honble 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 Honble
Court for the recovery of such payments which are alleged to
be due from the applicant company.
C. THIS

HONBLE

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
Honble Court at its very threshold inasmuch as this Honble
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 Honble 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 Honble 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
Honble Court in terms of Section 20 CPC. It is therefore
submitted that captioned suit is not maintainable as
brought out hereinabove and this Honble 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
Honble 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 Honble Court and as such
the plaintiff is not entitled to any relief from this Honble 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.
4. That the contents of Para 4 of the plaint are wrong and 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 Honble Court to prove
the same.
7. That the contents of Para 7 of the plaint are wrong and 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

outstanding

that

repeatedly

annual

the

payments

plaintiff
from

demanded
the

his

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,

requisition has already been made.

Gujarat

for

which

It is submitted that the

plaintiff has made such averments without bringing to this

Honble 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.

15.

That the contents of Para 15 of the plaint are wrong and

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 Honble 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 Honble 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 Honble 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 Honble 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 Honble Court and therefore this Honble

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 Honble Court, it is submitted
that no relief that falls within the ambit of Order XXXVII has been
sought from this Honble Court and as such the prayer made to this
Honble Court is baseless and even other frivolous.
TRIABLE ISSUES BY THIS HONBLE COURT
It is submitted that a number of issues arise in the instant matter
that will have to decided by this Honble Court some of which are
stated hereinabove:
1) Whether the present suit is barred by limitation?;

2) Whether this Honble 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 Honble Court.

PRAYER
In the light of the above mentioned facts and circumstances it is
most graciously prayed from this Honble 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 Honble Court may deem
fit and proper to make in the facts of the instant matter.

Place: New Delhi

Date: 07/09/2015

Applicant
ORIENT BELL LIMITED

Through:

ANSHUJ DHINGRA LAW OFFICES

Advocates
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.

DEPONEN
T
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