Assignment 5 Code:##339016; October 2021 Batch;

Certificate Course in Advanced; Submitted by :©Dhaval Vyas;

Civil Litigation: Practice Procedure and Drafting. Submitted on: 14th Nov 2021.
DISCLAIMER:-DETAILS ,NAMES, FIGURES, LOGOS,AND THE LIKES ARE FOR EDUCATIONAL PURPOSES ONLY.

Exercise 1: Draft an application for rejection of plaint [10 Marks]

LD. DISTRICT JUDGE (Commercial Court),
TIS HAZARI COURT, NEW-DELHI
ORIGINAL JURISDICTION
Commercial Court C.S. No.0060 of 2020

IN THE MATTER OF:

M/S Brightsword LLP;

A limited Liability Partnership establshed;
under the Limited Liability Partnership Act,(the LLP Act) 2008;
Thru its Designated Partner:- Mr.Eeshwar Murti ;
Having their registered offic at:-
Sec 6, Main Market, Dwarka;
New Delhi;Delhi,110075 ..PLAINTIFF
Versus
M/S Rana & Sons Ltd;
A company incorporated under the Companies Act 1956;
Thru its Director:- Mr.Murali Tirath ;
Having their registered office at :-
D-14, Udyog Nagar;
New Delhi;Delhi,110041 ...DEFENDANT

1
 APPLICATION SEEKING REJECTION OF THE PLAINT UNDER ORDER VII RULE 11(D) OF
THE CIVIL PROCEDURE CODE, 1908

MOST RESPECTFULLY SHEWETH

A - PRELIMINARY SUBMISSION/PURPOSE OF THE SUIT

1.That the Plaintiff filed a suit for recovery of a sum of Rs. 15,00,000/- (Rupees Fifteen
Lakhs Only) with interest at the rate of 18% per annum from the Defendant. It is submit-
ted that 5000 pairs of footwears @Rs300 each pair were sold by the Plaintiff by raising a
bill between November 2012 and April 2017, which were unpaid by the defendant, the
particulars(of unpaid invoices) are added in the table below as well as the annexure A at-
tached in plaint of Commercial Court C.S. No.0024 of 2020 and here for reference.
TABLE1
S.NO DATE INVOICE NO. QUANTITY RATE TOTAL

1 14th Nov 2012 207710 1000 300 3,00,000/-

th
2 18 Jan 2014 207710 1000 600 6,00,000/-
3 25th Apr 2015 207710 1000 300 3,00,000/-
4 02nd Apr 2017 207710 1000 300 3,00,000/-

TOTAL 15,00,0000/-

2.The present application is filed by the Defendant under Order VII Rule 11(d) for rejection
of plaint on the ground that the suit is barred by limitation Act 1963.

B - STAGE OF THE SUIT:-

3.The suit is presently at the stage of framing of issues and the next date of hearing is on 10th
Jan 2021. A copy of the order dated 10th Dec 2020 is annexed and marked as
ANNEXURE A.
C - BRIEF FACTS LEADING TO THE FILING OF THIS APPLICATION :-

I - BACKGROUND

4. The plaintiff M/S Brightsword LLP is a limited Liability Partnership establshed un-
der the Limited Liability Partnership Act,(the LLP Act) 2008 operated through its De-
signated Partner Mr.Eeshwar Murti having their registered offic at Sec 6, Main Mar-
ket, Dwarka;New Delhi;Delhi,110075 is engaged in the manufacture of high-quality
footwear.Whereas M/S Rana & Sons Ltd is a company incorporated under the Com-
panies Act 1956;operated through its Director Mr.Murali Tirath having their regis-
tered office cum shop at D-14, Udyog Nagar;New Delhi;Delhi,110041 carries on its
foot-wear retail business at a showroom in Delhi at above mentioned address.

II - FACTS & DETAILED SUBMISSIONS BY THE PLAINTIFF IN THE PLAINT

5. The plaintiff in his Plaint has categorically, provided with the facts of the case lead-
ing to this application as in paragraph 1 to 8 in the plaint Commercial Court C.S.
No.0060 of 2020 filed on the 15 th Nov 2020 and are summarized and re-produced
below for convenience of this Hon’ble Court in paragraphs a,b,c,d & e below.

a.That the defendant, had on the 18 th August 2012, approached the plaintiff
with an e-mail request to permit them to set up a showroom in Delhi to exclu-
sively sell and market the plaintiff’range of leather footwear. After the initial
round of proposals and counter proposals by way of electronic e-mail
communi- cation, it was agreed that the plaintiff would supply the goods with
no fixed credit period, and the defendant agreed to make payment against the
invoice raised and sent for the same.
b.Subsequently several purchase orders were made by the defendant against
which the goods were supplied and invoie for payment raised between 14 th No-
vember 2012 and 2nd April 2017. There were several invoices which were paid
for a receipt by the defendants and some which were not honoured. The details
of the purchase orders, invoices, and receipts and the statement of accounts is
annexed and marked as ANNEXURE B Colly. The details of unpaid invoices are
already a partt of Annexure A as in paragraph 1 AND Table 1 above .

c.. The defendant from the inception was highly irregular and tardy inmaking
payments to the plaintiff. Nevertheless, retaining confidence in the defendant,
the plaintiff continued to sell and deliver goods to the defendant on the belief
that the defendant would eventually make payments. However, the defendant
never made the payments due and payable to the plaintiff.

d.The defendant owes Rs. 15,00,000/- (fifteen lakhs only) for goods sold and
unpaid for from the palintiff and since the matter is a commercial transaction,
the defendant is liable to pay the said sum along with interest at the 18% p.a.
from the date when the sums fell due.

e.The plaintiff submitted in the plaint that the cause of action in the above
case arose on various dates from 14th November 2012 to 2nd Apr 2017, when
the goods were sold and delivered to the Defendants by the Plaintiff; on var-
ious dates as per when the defendants failed and neglected to pay the invoi-
ces. The suit has been filed within the period of limitation.
III - FACTS & DETAILED SUBMISSIONS BY THE DEFENDANT IN THE
WRITTEN STATEMENT
6. The defendant in his written statement Commercial Court C.S. No. 0024 of 2020
filed on 10th Dec 2020 , in his submission has categorically, provided with the reply
to the plaint Commercial Court C.S. No.0060 of 2020 filed on the 15 th Nov 2020
which is summarized and re-produced below for convenience of this Hon’ble Court
in paragraphs a & b below.

a. The defendant holds that it is pertinent to mention that in Limitation

Act, 1963 under Article 14 of the Schedule to the Act, it clearly provides a
limitation period of three years from the date of the delivery of the goods. The
last trans- action between the Defendant and the Plaintiff was said to be on 2 nd
April 2017 and the time for suing runs three years from that date i.e up to 2 nd
April 2020.Hence the period for suing was over on 2 nd April 2020 and the
Plaintiff cannot be sued thereafter. Article 14 of the
Schedule to the Limitation Act is reproduced hereunder: -
14. For the price of goods Three years. The date of the
sold and delivered where delivery of the
no fixed period of credit is goods.
agreed upon.

b.It will not be out of place to mention that the transaction that happened
many years agothe first default according to Table I on 14th Nov 2102 , even if
considered running would end on the last date 2 nd April 2020 along with the
last invoice.This suit filed by the Plaintiff is clearly beyond the prescribed
limita- tion period in the Limitation Act, 1963. Hence this suit is barred by the
law and this plaint submitted by the Plaintiff is liable to be rejected.
C - GROUNDS FOR FILING OF THIS APPLICATION :-

7.In the light of the above-mentioned facts and submissions both by the plaintiff and the
defendants in their plaint and written statement reply, the Defendant is seeking a direction
rejecting the plaint under Order VII Rule 11(d), Code of Civil Procedure, 1908.
Order VII Rule 11(d) is reproduced below for the convenience of the court to refer:-

ORDER VII - is for Plaint

Rule11 Rejection of plaint states — The plaint shall be rejected in the following cases:—
Clause (d) states- where the suit appears from the statement in the plaint to be barred by
any law;

As the limitation Act 1963 is one amongst the many laws, Schedule to the Limitation Act
14 states “For the price of goods sold and delivered where no fixed period of credit is
agreed upon” the limitation period is three years and commences from the date of the de-
livery of the goods.

As the last invoice was delivered on 2 nd April 2017, three years from it expires on 2 nd April
2020. This suit was filed on 15th Nov 2020 as per the fact of the suit and paragraph 4
above.

Therefore there is a clear ground for this application to reject the plaint .

8. The Applicant/defendant herein has made out a prima facie case. The balance of
conve- nience in favour of the Applicant is evident and does not owe any money to the
Plaintiff.

9. The Applican/defendantt would suffer an irreparable loss if the present application

were to be rejected.
10. The present application has been filed bonafide and in the interest of justice.

D - PRAYER :-

Wherefore it is respectfully prayed that this Hon’ble Court may be pleased to:

a. Allow the present application and reject the plaint filed by the Plaintiff in the exercise
of powers under Order VII Rule 11 of the Code of Civil Procedure, 1908.

b. Pass such further order/s and/or direction/s as may be deemed fit and proper in the
facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS, THE APPLICANT AS IN DUTY BOUND

SHALL EVER PRAY.

(Name of the Advocate)

Dated –

Place -
Exercise 2: Draft an application for amendment of plaint [10 Marks]

LD. DISTRICT JUDGE (Commercial Court),

TIS HAZARI COURT, NEW-DELHI
ORIGINAL JURISDICTION
Commercial Court C.S. No.0060 of 2020

IN THE MATTER OF:

M/S Brightsword LLP;

A limited Liability Partnership establshed;
under the Limited Liability Partnership Act,(the LLP Act) 2008;
Thru its Designated Partner:- Mr.Eeshwar Murti ;
Having their registered offic at:-
Sec 6, Main Market, Dwarka;
New Delhi;Delhi,110075 ..PLAINTIFF
Versus
M/S Rana & Sons Ltd;
A company incorporated under the Companies Act 1956;
Thru its Director:- Mr.Murali Tirath ;
Having their registered office at :-
D-14, Udyog Nagar;
New Delhi;Delhi,110041 ...DEFENDANT
 .

APPLICATION SEEKING AMENDMENT OF THE PLAINT UNDER ORDER VI RULE 17) OF

THE CIVIL PROCEDURE CODE, 1908

MOST RESPECTFULLY SHEWETH

A - PRELIMINARY SUBMISSION/PURPOSE OF THE SUIT

1.That the Plaintiff filed a suit for recovery of a sum of Rs. 15,00,000/- (Rupees Fifteen
Lakhs Only) with interest at the rate of 18% per annum from the Defendant. It is sub-
mitted that 5000 pairs of footwears @Rs300 each pair were sold by the Plaintiff by rais-
ing a bill between November 2012 and April 2017, which were unpaid by the defen-
dant, the particulars(of unpaid invoices) are added in the table below as well as the
Annexure A attached in plaint of Commercial Court C.S. No.0024 of 2020 and here for
reference.
TABLE1
S.NO DATE INVOICE NO. QUANTITY RATE TOTAL

1 14th Nov 2012 207710 1000 300 3,00,000/-

2 18th Jan 2014 207710 1000 600 6,00,000/-
3 25th Apr 2015 207710 1000 300 3,00,000/-
4 02nd Apr 2017 207710 1000 300 3,00,000/-

TOTAL 15,00,0000/-

2. This is an application filed on behalf of Plaintiff under Order 6 Rule 17 read with Sec-
tion 151 of the Code of Civil Procedure, 1908, seeking the kind permission of this Hon’ble
Court for amendment of the Plaint to bring reference to subsequently discovered facts and
information on the record for the purpose of determining the real question in controversy
between the parties.
B - STAGE OF THE SUIT:-

3.The suit is presently at the stage of framing of issues and the next date of hearing is on
10th Jan 2021. A copy of the order dated 10th Dec 2020 is annexed and marked as
Annexure A above.

C - BRIEF FACTS LEADING TO THE FILING OF THIS APPLICATION :-

I - BACKGROUND

4. The plaintiff M/S Brightsword LLP is a limited Liability Partnership establshed under
the Limited Liability Partnership Act,(the LLP Act) 2008 operated through its Designa-
ted Partner Mr.Eeshwar Murti having their registered offic at Sec 6, Main Market,
Dwarka;New Delhi;Delhi,110075 is engaged in the manufacture of high-quality foot-
wear.Whereas M/S Rana & Sons Ltd is a company incorporated under the Companies
Act 1956;operated through its Director Mr.Murali Tirath having their registered office
cum shop at D-14, Udyog Nagar;New Delhi;Delhi,110041 carries on its foot-wear retail
business at a showroom in Delhi at above mentioned address.

II - AMENDMENTS OF FACTS SUBMITTED BY THE PLAINTIFF IN THE PLAINT

5. In the Plaint, the Plaintiff has stated that,

“5. Pursuant to purchase orders placed by the Defendant at Delhi between
November 2012 to April 2017, the Plaintiff has sold and delivered several
consignments of footwear to the Defendant and raised several invoices/ bills on the
Defendant.”
It is submitted that initially in the Plaint, the transaction between the Plaintiff and the
Defendant was said to end by April 2017. The Plaintiff later, after submission of the
Plaint recognised the discrepancy in his accounts and found that he failed to bring in
the record the transactions which happened after April 2017. The Defendant actually
made purchase orders till April 2018. Therefore, the Plaintiff has raised invoices against
the Defendant from 14th November 2012 till 27th April 2018.

6.Without prejudice, the Plaintiff may be allowed to amend the Plaint to set up the
newfound facts. The Plaintiff may amend the 5th para of the Plaint and the proposed
paragraph is extracted hereinbelow for ease of reference:
“5. Pursuant to purchase orders placed by the Defendant at Delhi between 14 th No-
vember 2012 till 27th April 2018.8, the Plaintiff has sold and delivered several consign-
ments of footwear to the Defendant and raised several invoices/ bills on the Defen-
dant.”

7.It is also submitted that the Plaintiff has received the acknowledgement from the De-
fendant as the receipt of the goods for every order made by the defendant. It is also
pertinent to note that till date there has been no communication from the defen-
dant that any of the goods purchased are defective. The plaintiff was careless enough
and did not mention these facts in the plaint.

8.These facts if left unstated in the Plaint, might be misused by the Defendant in his
Defence. Therefore, the Plaintiff may add 4A para after the 4 th para of the Plaint and
the proposed paragraph is extracted hereinbelow for ease of reference:
“5A. It is pertinent to note that the Defendant has acknowledged every order delivered
by the Plaintiff through the receipt of goods. It will not be out of place to mention that
not even once the Defendant has objected or communicated in any form that the
goods purchased are defective till date.”
 9. It is submitted that the addition of new invoices in the record has led to an increased
amount of money for recovery. The addition of invoices after April 2017 to April 2018,
to the existing set of invoices. So, an additional amount of Rs. 2,50,000/- (Rs. Two Lakh
Fifty Thousand Rupees Only) has to be added to the already computed amount of Rs.
15,00,000/- (Rupees Fifteen Lakhs Only). In total, an amount of Rs. 17,50,000/- (Ru-
pees Seventeen Lakhs Fifty Thousand Only) has to be recovered from the Defendant.
The Plaintiff may amend the 4 th para of the Plaint and the proposed paragraph is ex-
tracted hereinbelow for ease of reference:
“8. The Plaintiff is owed Rs. 17,50,000/- for goods sold and unpaid for and since the
matter is a commercial transaction; the Defendant is liable to pay the said sums
along with interest at the 18% p.a. from the date when the sums fell due.”

10.It is submitted that based on the above-proposed amendments in the Plaint, the
prayed sought by the Plaintiff is also consequentially changed. The Plaintiff may amend
the prayer in the Plaint and the proposed prayer is extracted hereinbelow for ease of
reference:

C - GROUNDS FOR FILING OF THIS APPLICATION :-

11.In the light of the above-mentioned facts and amendments submitted by the plain-
tiff, the plaintiff is seeks a direction amending the plaint under Order VI Rule 17 of the
Code of Civil Procedure, 1908.

Order VI Rule 17 is reproduced below for the convenience of the court to refer:-

ORDER VI - is for Pleadings generally

Rule17 Amendment of pleading states — TThe Court may at any stage of the proceed
 ings allow either party to alter or amend his pleadings in such manner and on such
terms as may be just, and all such amendments shall be made as may be necessary for
the purpose of determining the real questions in controversy between the parties :

Provided that no application for amendment shall be allowed after the trial has com-
menced, unless the Court comes to the conclusion that in spite of due diligence, the
party could not have raised the matter before the commencement of trial.

As the plaint has amendements applied for as in points 5,6,7,8,& 9 in the above facts ,
there is a clear ground for this application to amend the plaint .
The amended plaint (with the amended paras) are filed as ANNEXURE B colly with this
application.

12. The Applicant/plaintiff herein has made out a prima facie case. The balance of conve-
nience in favour of the plaintiff is evident and does owe the suit for recovery of money to
the defendant.

13. The Applican/plaintiff would suffer an irreparable loss if the present application were
to be rejected.

14. The present application has been filed bonafide and in the interest of justice.
D - PRAYER :-

In the above facts and circumstances, it is respectfully prayed that this Hon’ble Court
may be pleased to:-

a. Allow the present application and amend the plaint filed by the Plaintiff as Annex-
ure B in the exercise of powers under Order VI Rule 17 of the Code of Civil Procedure,
1908;

b. Direct the defendant to pay Plaintiff a sum of Rs. 17,50,000/- (Rupees Seventeen
Lakhs Fifty Thousand Only) with future interest at the rate of 18% per annum till the
date of payment;

c. Pass such further order/s and/or direction/s as may be deemed fit and proper in the
facts and circumstances of the case.

d. Pass such orders as may be deemed fit and necessary by this Hon’ble court in the in-
terest of justice.

AND FOR THIS ACT OF KINDNESS, THE APPLICANT AS IN DUTY BOUND

SHALL EVER PRAY.

(Name of the Advocate)

Dated –

Place -