BEFORE THE PRINCIPLE CIVIL JUDGE,

KALOL, GANDHINAGAR, (GUJARAT)

IN SUMMARY SUIT NO. 6 OF 2017

IN THE MATTER OF:

M/s. Singhal Industries Pvt. Ltd.

Block No. 1547, B/h. Mukat Group,
Khatreh Kalol Road, Village-Moti Bhoyan
Taluka- Kalol, District-Gandhinagar
Gujarat
…Plaintiff

VERSUS
M/s. KP Poly Pack International
_____ …Defendant

APPLICATION FOR LEAVE TO DEFEND ON BEHALF OF

THE DEFENDANT

The Defendant most humbly submits as under :-

1. That the present leave to defend is in reply to the

meritless Summary Suit instituted by the Plaintiff in the

abovementioned matter.

2. That the Plaintiff is a private limited company registered

under the provisions of Companies Act, 1956 and is

engaged in the business of manufacturing and exporting

of PP/HDPE Leo Mesh Bags, Woven Sack Bags, PE

Liner Bags, Jumbo Bags etc.

3. That the Defendant is a company regisetered under the

provisions of Companies Act, ___ and is primarily based

in Central India. The Defendant company has been

engaged in the venture of exporting and manufacturing

FIBC's, Woven Fabric and Woven Poly Sacks to various

countries for the past one decade and at present has a

capacity to produce 400 MT per month of various woven

poly finished products.

4. That the Plaintiff and the Defendant were involved in an

arrangement under which the Defendant used to buy

certain products from the Plaintiff for the purpose of

exporting them further.

5. That owing to the continuous transactions and for the

sake of ease of business between the Plaintiff and

Defendant, a current account in the name of Defendant

in the books of Plaintiff was opened wherein, the

particulars of the transactions were frequently entered.

6. That the Plaintiff in the present summary suit has

claimed from the Defendant a sum of Rs. 10,73,098/-

(Rupees Ten Lakh Seventy Three Thousand and Ninety

Eight) in lieu of the Goods supplied by it, Late payment

Interest and Penalty for not providing Form ‘H’.

7. That as per the contention of Plaintiff in the present

Summary Suit, there are two invoices bearing Nos.

376/2014-15 dated 24.07.2014 and 401/2014-15 dated

06.08.2014 amounting to Rs. 25,75,205/- (Rupees

 Twenty Five Lakh Seventy Five Thousand Two Hundred

and Five) and Rs. 3,23,612/- (Rupees Three Twenty

Three Thousand Six Hundred and Twelve) respectively,

in lieu of which part payment is outstanding on the part

of Defendant.

8. That as per the current account opened in the name of

Defendant in the books of Plaintiff an outstanding

amounting of Rs.4,23,873/- (Rupees Four Lakh Twenty

Three Thousand Eight Hundred and Seventy Three) is

reflected on which the Plaintiff has claimed an interest

@24% p.a. as late payment without any rational.

9. That a certain Purchase Order No. KPPI/EXP/2014-

15/037 dated 29.04.2014 was issued to the Plaintiff

wherein the Defendant sought for purchase of 9740 Poly

Bags which were supposed to be exported to Germany

with expected delivery date as 31.05.2014. However,

owing to delay of more than two months on the part of

Plaintiff company, the consignment of Defendant got

cancelled and is consequently facing a claim of Euro

20,000.00 (Rs. 15,28,800.00) from CompaC, the

company to which the goods were proposed to be

exported.

10. That vide an email dated 24.05.2016 CompaC has

claimed Rs. 15,28,800/- from the Defendant for the

cancellation of abovementioned order in order to re-start

any potential business relationship.

11. That the interest of 24% p.a. claimed by plaintiff holds

no ground as the Plaintiff is himself liable to the counter

claim of Defendant amounting to Rs. 15,28,800/- along

with the interest @_______

12. That the Plaintiff is claiming Rs. 3,61,574/-

(Rupees Three Lakh Sixty One Thousand Five Hundred

and Seventy Four) for the Defendan’s default of not

providing Form ‘H’.

13. That a Form ‘H’ under the Central Sales Tax Act

has to be supplied by the buyer to the seller, in case of

an interstate buyer who buys the goods for the purpose

of subsequent export.

14. That since the transaction happening between the

parties in the present was an inter-state sale and the

buyer i.e. Defendant company subsequently exported

the goods, it has to necessarily supply the Form ‘H’

issued for such sale to the seller which is the Plaintiff

company.

15. That certain documents are required to be

provided by the seller while filling the Form ‘H’ which

includes Invoice, Shipping Bill etc. However, since the

Plaintiff Company did not provide the shipping bills with

respect to invoices raised by it, the Defendant was

unable to fulfill the statutory requirement of supplying

the Form ‘H’ to Plaintiff.

16. That therefore, the claim of the Plaintiff on

account of Defendant not providing the Form ‘H’ is

untenable and is liable to be rejected out rightly by this

Hon’ble Court.

17. That the Defendant also acted as a Commission agent

to sell 2,00,000 (Two Lacs) to Maha Kaushal and Power

Industries Ltd., Narsinghpur at the rate of Rs. 3/bag.

Thereby, entitling Defendant with the total the

commission of Rs. 6,00,000 (Rupees Six Lacs Only). Commented [u1]: Documents relating to this transaction
required.

18. That however, no payment whatsoever on the above

mentioned account has been made by the Plaintiff

company on behalf of the Defendant till date.

19. That ____Para VII of reply of Legal Notice Commented [u2]: Clarification from KP Poly Pack

20. That in the light of recent decision of the Hon’ble

Supreme Court in the case of IDBI Trusteeship Ltd. v.

Hubtown Ltd. [Civil Appeal No. 10860 of 2016] the

leave to defend in favour of the Defendant cannot denied

when it has a substantial defence and thereby raises

issues which can only be adjudicated through a regular

suit wherein adequate opportunity is provided to the

parties to prove their case.

21. That if the present application is dismissed the

bonafide right of the Defendant of counter claim against

the Plaintiff would be lost and great prejudice would be

caused to the Defendant.

 22. That the defence raised in the present application is

neither a sham nor based on moonshine and the same

is a substantial one wherein the Defendant has a valid

right of counter claim along with the interest and

damages on account of the unprofessional conduct of

the Plaintiff and therefore present application for leave

to defend ought to be allowed by this Hon’ble Court.

For the foregoing reasons, it is thereby humbly prayed that

this Hon’ble Court may be pleased to grant unconditional

leave to defend the suit and thus render justice.