- (1.) The above application is taken out by the plaintiff in a money suit for pronouncing a final judgment and decree for a sum of Rs. 71,77,420.62p. The suit filed by the plaintiff for recovery of the sum of Rs.71,77,420.62p. inclusive of interest for the goods sold and delivered. The case made out by the plaintiff in the affidavit in support of summons is that on diverse dates under the diverse invoices the plaintiff sold and delivered a large quantity of ball bearings to the defendant, the price of which was Rs. 1,73,80,127.81 p. Out of the aforesaid amount, a sum of Rs. 1,28,92,200.19p. has been paid by the defendant to the plaintiff leaving a balance amount of Rs.44,87,927.62p. on account of principal. The amount of interest has been claimed on the aforesaid sum at an agreed rate which came to be of a sum of Rs. 26,89,493.00p. calculated upto 31st August, 2002.
(2.) Mr. Pratap Chatterjee, learned Senior Counsel appearing with Ms. Nadira Patherya in support of this application contends that in the affidavit-in-opposition no defence has been made out to contest the suit by filing written statement. The plea of limitation taken by the defendant is of no substance as there are part payments within the period of limitation and this will appear from Annexure-"C". at pages 16 and 17 and Annexure-"D" at page 18 of the affidavit-in-opposition of the affidavit affirmed on behalf of the plaintiff on 19th March, 2004.
(3.) It will appear from the pleadings and the documents annexed thereto, that there is continuous running account maintained between the parties and this will be evident from the payments made by the defendant to the plaintiff on ad hoc basis between 28th July, 1999 and 26th March, 2002. The scheme for allowance of 5% turnover discount and one Maruti 800 Car and one Maruti Esteem Car for sale of Rs. 1 crore was available during the period from 1st July, 1998 to 31st March, 1999 and was applicable only in the event of full outstanding amount has been paid. In the instant case, full outstanding amount has not been paid within 31st March, 1999 and this will be evident from the Annexure-"C" and Annexure-"D" and the plaintiffs affidavigt-in-opposition. As far as claim of 2% cash discount is concerned Mr. Chatterjee replies that such cash discount has been paid and it will appear from the affidavit of the defendant itself.;