Vikramajit Sen, J.

1. Bythisapplication the defendant hasprayed forthegrant of leave to defend thepresentsummary suitfiledunderOrder XXXVII of theCodeofCivil Procedure (hereinafter referred to as the CPC).It is contendedbythe defendant that out of thecontracted saleconsiderationofapproximately Rs. 25lakhsthe defendant has already paid approximately Rs. 19 lakhs, at which stage it was discovered that the software supplied by the plaintiff was defective.It is submitted that at thisjuncturethe plaintiff offered to supplyanother softwareprogrammebut by that time the defendanthad already incurred damages stipulated in its contract with the party to whom the software had to be supplied.Each partyknewof the other, as well astheirrespective contractualobligations.It was also argued that Order XXXVIIofthe C.P.C.was not attracted as nowritten agreementisavailableforreliance viz-a-vizthe summarysuit.Territorial jurisdiction was assailed on the foundation that the Purchase Order dated 2nd August, 1994wasissuedbythe defendant forsupplytobe effectedin Cochin, and no part of the cause ofaction hadarisen in Delhi.The defendants Branch Officein Delhihad no connection with the transaction, andthat the plaint does not aver any such role.Order XXXVII of theC.P.C.doesnot apply since thepurchaseorder envisagesthat billing instructions were to be issued separately,onthebasisofthesatisfactionof Fertilizersand Chemicals Travancore Ltd.(hereinafter referredtoas the FACT).It is submitted thatthe plaintiffhasadmittedthe failureofthesoftware package.It is then contended that Fact Engineering and DesignOrganization(hereinafter referred toasthe FEDO) is a necessary party.It is stated that time was ofthe essence of the contract and its performancehad notbeen completed.As FACT was not satisfied with the softwarepackage it levied damages of Rs. 9,30,375/-on thedefendantandalso encashed a bankguaranteeof Rs. 5.12lakhs.It has been highlightedthatdespite specific orders dated 31st July, 1998, the plaintiff has failedtofile the original of Annexure-II dated25th August,1994and should not be allowed to rely onit. (However,on a perusal of the file it appears that this documentwasfiledon18thAugust,1998).Learned Counselforthe defendant has further argued thatthe softwareAutoveslwas not satisfactory andIsogen wasnot supplied at all.Reliance was placed on Indian Biotech Co. (P) Ltd.v.Assam State Co-op. Marketing & Consumers Federation Ltd., 36 (1988) DLT 60 [LQ/DelHC/1988/77] , andDelhi Travels & Tours v.Motorola India Ltd., 84 (2000)DLT 753.In the former case the provisions of the Saleof GoodsAct,1930 (hereinafter referred to as theAct) werenot even considered.In the latter, thedecision togrant leave to defend rested on the appreciationofthefacts of the case, and hence is of no assistance to the defendant/applicant.

2. Thecontentionof Mr.S.N.Kumar,learned SeniorCounsel appearing for the plaintiff is thatthe suitismaintainable under Order XXXVII of the CPCas thecomplete contract is available in the shape ofthe invoice.He has submitted that the contract between the parties envisages the supply of seven items all of which weresupplied.The controversy about Autovesl wasof thedefendants making, inasmuch as despite an order for thissoftwarethey had subsequently requestedforan alternatesoftware,namelyPvelite.Although,the plaintiffwas not contractually obligated to substitute AutoveslwithPvelite,becauseofthedefendants requesttheplaintiffeven complied withthisfresh requirement.Ithasbeensubmitted,andnot controverted by the defendant, that in fact even Pvelite wassupplied by the plaintiff to the defendant.Itis contendedthat Autovesl was not unsatisfactory in any respect,andthatthis alleged controversyhasbeen generatedonlybecauseof the defendantsdesireto substitutethe supply.He has contended that thereis nodocumentaryproofwhatsoeverinrespectofthe defendantscontention that Autovesl was imposed onit byFACTandnoevidence that anypaymentwasmade pursuanttothisclaim for damages.He,therefore, submitsthattheprojecteddefenceisacomplete moonshinewhichis clearly evident from the factthat outofthe consideration of Autovesl ofapproximately Rs. 26,00,000/-thedefendanthadalreadypaid approximately Rs. 19,00,000/-.Thereafter, the defendant developeddishonestintentions.Mr.Kumar,learned Counsel appearing on behalf of defendant, drew attention tothefactthat the dishonesty of thedefendantis manifestfrom the fact that it had attempted to by-pass theplaintiffand deal directly withtheplaintiffs PrincipalintheUnitedStatesofAmerica.The defendantsrevertedtothe plaintiffonlywhenthe Principalwrote back to them advising them to deal only withtheplaintiff,sinceithadalreadyspent considerabletimeandeffortonthecontract.He furthersubmittedthatthisCourthadterritorial jurisdictionbecause the purchase order wasdespatched bythedefendantto the plaintiff atDelhiandwas acceptedhere.He relied on the provisions ofSection 20ofthe Code of Civil Procedure.Thesefactswere clearlystated in paragraph 19 of the plaint andthese averments have not been denied.

3. The provisions of law relevant for the grant of leave to defend are as follows:

Order XXXVII Rule 3(5) :

(5)Thedefendant may, atany timewithin ten days from the service ofsuchsummonsforjudgment,by affidavit or otherwise disclosing such factsas may be deemed sufficientto entitlehim to defend, apply onsuch summons for leave to defend such suit, andleave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just :

Provided,thatleave todefend shallnot be refused unless the Court issatisfied that the facts disclosed bythe defendant do not indicate that hehas a substantial defence to raise orthatthe defence intendedtobe putup by the defendant is frivolous or vexatious :

Providedfurtherthat, wherea partoftheamount claimedbythe plaintiff is admitted by the defendant tobedue from him, leave todefend thesuit shall not be grantedunless theamountso admitted to be dueis deposited by the defendant in Court.

4. Analogousprovisions are also to be found in the DelhiRentControl Act, and since they havegenerated considerablejudicial scrutiny it would be advantageous to reproduce them :

Section 25B(5) :

(5)The Controller shall give to the tenantleavetocontestthe applicationif the affidavit filed by thetenantdiscloses suchfactsas woulddisentitlethelandlordfrom obtaining an order for the recovery of possessionofthepremisesonthe groundspecified in Clause (c) of the provisoto Sub-section (1) of Section 14, or under Section 14A.

5. Theapproachwhich the Court must adopt,while dealingwithcases brought under Order XXVIIIofthe C.P.C.hasbeen set down by the Supreme Court inthe celebratedjudgmentofM/s. Michalec Engineers and Manufacturers v.M/s. Basic Equipment Corporation, AIR 1977 SC 577 [LQ/SC/1976/414] .Five conditions have been postulated:

(a) Ifthe defendant satisfiesthe Courtthathe has a good defenceto theclaim on merits, the defendant is entitledtounconditionalleaveto defend.

(b) If the defendant raises a triable issue indicating that he has a fair or bona fide orreasonabledefence, althoughnot a possibly good defence, thedefendantisentitledto unconditional leave to defend.

(c) Ifthe defendant disclosessuch factsas may be deemed sufficientto entitle him to defend, that is, if the affidavitdiscloses that at the trial hemay be able to establish a defence totheplaintiffs claim, theCourt mayimpose conditions at the timeof grantingleavetodefend -the conditionsbeing as to time oftrial or mode of trial but not as to payment into Court or furnishing security.

(d) If the defendant has nodefence, orif the defence is sham or illusory orpracticallymoonshine,the defendantis not entitled to leave to defend.

(e) If the defendant has no defence or thedefenceis illusory orshamor practicallymoonshine, the Courtmay showmercytothedefendantby enabling him to try to prove a defence butatthesametimeprotectthe plaintiffbyimposing thecondition that the amount claimed should be paid into Court or otherwise secured.

6. InMrs. Raj Duggal v.Ramesh Kumar Bansal, AIR 1990SupremeCourt2218,theCourthadopinedas follows :

Leaveisdeclinedwherethe Court is of the opinion that the grant ofleavewouldmerelyenablethe defendant to prolong the litigation by raisinguntenableandfrivolous defences.The test is to see whether thedefenceraises a real issueand nota sham one, in the sense thatif the facts alleged by the defendant are establishedthere would be a goodor evenaplausibledefenceonthose facts.IftheCourtissatisfied aboutthatleave must be given.If thereis a triable issue in the sense thatthereis a fair disputetobe triedas to the meaning of a document onwhichtheclaimisbasedor uncertaintyas to the amount actually dueor where the alleged facts are of suchanatureastoentitlethe defendant to interrogate the plaintiff ortocross-examinehiswitnesses leaveshouldnot bedenied.Where also, the defendant shows that even on afair probability he has a bona fide defence,heoughttohaveleave. SummaryjudgmentsunderOrder37 shouldnotbe granted whereserious conflict as to matter of fact or where anydifficultyon issues astolaw arises.The Court should notreject thedefenceof the defendantmerely because of its inherent implausibility or its inconsistency.

7. Initsearlierjudgment in Santosh Kumarv. Bhai Mool Singh, AIR 1958 Supreme Court 321, theCourt hadperspicuously observed that the learned Judgehas failedtoseethat the stage of proof canonlycome afterthedefendanthasbeenallowedtoenteran appearanceand defend the suit, and that the natureof thedefencehas to be determined at the time whenthe affidavitis put in.At that stage all that theCourt has to determine is whether if the facts alleged by the defendantare duly proved they will afford a good,or even a plausible, answer to the plaintiffs claim.Once theCourtissatisfied about that,leavecannotbe withheldand no question about imposing conditionscan arise;and once leave is granted, the normal procedure of a suit, so far as evidence and proof go, obtains.

8. Mostrecently,afterreviewingitsprevious decisionson the subject, the Apex Court hadindicated theapproach to be adhered to in the grant of leaveto defend/contest,albeit in the context of the Delhi Rent ControlAct,in Inderjeet Kaur v.Nirpal Singh, 89 (2001) Delhi Law Times 27 (SC), in the following words :

Weareof the consideredview thatat a stage when the tenant seeks leavetodefend, it is enough ifhe prima facie makesoutacaseby disclosingsuchfactsaswould disentitle the landlord from obtaining an order of eviction.It would not be arightapproach to say thatunless thetenantatthatstageitself establishesastrong caseaswould non-suitthe landlord leave to defend shouldnot be granted when it isnot therequirement of Section 25B(5).A leave to defend sought for cannot also begrantedfor mere asking orina routinemanner which will defeatthe veryobject of the special provisions containedin Chapter IIIA of the. Leavetodefendcannotberefused where an eviction petition is filed on amere design or desire of a landlord torecover possession of the premises froma tenant under Clause (e) of the provisoto Sub-section (1) of Section 14,whenasa matteroffactthe requirementmaynotbesummarily resulting in great hardship to him and hisfamily members, if any,although hecouldestablish if only leaveis grantedthatalandlordwouldbe disentitledfor an order of eviction. Atthestageof grantingleaveto defendparties rely on affidavitsin supportoftherivalcontentions. Assertions and counter assertions made inaffidavits may not afford safe and acceptable evidence so as to arrive at anaffirmative conclusion one wayor the other unless there is a strong and acceptableevidence available to show thatthefactsdisclosedinthe applicationfiledbythetenant seekingleaveto defend wereeither frivolous,untenableormost unreasonable.Takeacasewhena possessionis sought on the ground of personalrequirement, a landlordhas to establish his need and not his mere desire.The ground under Clause(e) ofthe proviso to Sub-section (1)of Section14enablesalandlordto recoverpossessionofthetenanted premisesonthe ground ofhisbona fide requirement.Thisbeingan enablingprovision,essentiallythe burden is on the landlord to establish hiscase affirmatively.In short and substance wholly frivolous and totally untenabledefencemay not entitlea tenantto leave to defend but whena triableissueisraised adutyis placedon the Rent Controller bythe statute itself to grant leave.At the stageof granting leave the real test shouldbe whether facts disclosedin theaffidavitfiled seeking leaveto defendprima facie showthatthe landlordwouldbedisentitledfrom obtaining an order of eviction and not whetherat the end defence mayfail. Itiswell to remember thatwhena leavetodefend is refused,serious consequencesof eviction shall follow andthe party seeking leave is denied anopportunityto test the truthof theavermentsmade intheeviction petition by cross-examination.

9. Itisin this background thatthedefendants pleasforgrantof leave to defend thesummarysuit shouldbe considered.If the defendant has raised such pleastodefeat the suit that require evidencetobe produced to substantiate them, it would not be proper to prejudgetheissuebypreconsideringthepossible evidenceand then arriving at a conclusion againstthe defendant.But if the defence is predicated on evidence thatislegallyandstatutorilybarredfrombeing considered,or where the defence is itself contraryto any law and would therefore, be ignored at the end of the Trial,no purpose would be served by granting leaveto defendandthuspostponingandprocrastinatingthe inevitabledecreeingofthe suit orpetition.Such actionwoulddefeattheintendmentofthestatute itself.On 18.8.1998 the plaintiff filed theoriginal PurchaseOrderdated2.8.1994, and carboncopiesof InvoiceNo.113dated 25.8.1994 and No.126dated 26.10.1994.Thesalient terms of the purchaseorder, whichwasissued to the plaintiff at its DelhiOffice werethatAutoplantSoftware was to besuppliedfor FEDO, Cochin and this included both Autovesl and Isogen. The price was Rs. 25,79,820/- of which 50% was to be paid immediatelyandthebalanceafterthesuccessful installationatFEDO.A warranty foroneyearwas stipulated.Instrictconformity ofthispurchaser order,the first invoice-cum-delivery challan was dated on25.8.1994forthe sum ofRs. 15,92,260/-andtwo months later the second invoice-cum-delivery challan for thesumofRs. 10,90,752/- in respectofIsogenwas issued, notably from New Delhi.The defendant paid only Rs. 19,23,908.80in five instalments, the last one being on25.7.1995, quite obviously much after the supply was made.

10. Section20oftheC.P.C.recognizesthe territorial jurisdiction of Courts, inter alia, wherever thecauseofaction wholly or inpartarises.The defendant/applicanthasadmitted that it has aBranch Officeat5A, Bahadur Shah Zafar Marg, New Delhi and5, SansadMarg, New Delhi, and therefore, the presentcase isnot of the genre where the defendant has been put to adisadvantagebecauseof the plaintiffschoiceof filingthe suit in New Delhi.Even if theconvenience considerationissetapart, I am satisfiedthatthe causeof action had arisen in Delhi.The plaintiff has assertedinthe plaint that the order was acceptedin Delhi,andthis fact has not even been denied oreven traversedby the defendant/applicant.It is immaterial whetherdealingsbetween the parties were throughthe defendantsMadrasOffice,or thatdeliveryofthe softwarewas to be effected in Cochin.It is triteto statethatthecause of actionarisesatdifferent times,and at different places, and any of thesewould bealegitimatevenue for suing.Notriableissue therefore, arises on this account.

11. Thedefendant/applicant has also challengedthe maintainabilityofthe suit under Order XXXVII ofthe C.P.C.,statingthat there is no debtorliquidated demand in money payable to defendant-Company (sic.read plaintiff)and/or based on a written contract.It is nolonger res integra that invoices/bills arewritten contractswithinthecontemplationofthisOrder. Referenceis directed to Messrs. Punjab Pen Housev. Samrat Bicycle Ltd., AIR 1992 Delhi 1; Corporate Voice (Pvt.) Ltd. v.Uniroll Leather India Ltd., 60 (1995) DLT 321 [LQ/DelHC/1995/516] ; and Beacon Electronics v.Sylvania and Laxman Ltd., 1998(3)Apex Decisions (Delhi) 141.Thereis, thus, no hesitancy in holding that the present suit is a suitwhich should be tried under the summaryprocedure of Order XXXVII of the C.P.C.

12. Thedisputesbetweenthepartiescannotbe decidedde hors the sundry provisions of theSaleof GoodsAct.Part-payment to a substantialextenthas been made by the defendant/applicant.When a buyer such asthedefendant/applicantassertsthatthe merchandise/goodswere defective, it is not open toit towithholdpaymentonce thedeliveryisaccepted; since they are deemed to have been accepted by operation oflaw.In Nagandas Mathuradas v.N.V. Valmamohomed and Others, AIR 1930 Bombay 249, in the opinion ofthe Bench,the buyer was playing fast and loose inasmuch as theinitialcreditentry recorded infavourofthe sellerwassubsequentlyreversed.Thefactthata substantialpart payment had been made by the defendant totheplaintiffwasfound veryrelevant,inthis context.It reiterated the view approved by theHouse ofLordsthatif a buyer orders goods ofacertain description,andthesellerdeliversgoodsofa different description, it is open to the buyer to reject them.Butifhe does not reject them butkeepsthe goods,even if he does so in ignorance of the fact that theyare of a description different from thatprovided forbythe contract he is debarred from rejectingthe goodsthereafter,and can only fall back upon aclaim fordamages,asupona breachofwarranty.These observations apply, a fortiori, where the goods supplied wereaccordingto the specifications, and theirprice hadbeen substantially paid.Autovesl and Isogenwere orderedby name, and were supplied.Due to reasonsof obsolescence,Pvelite was subsequently preferred by the defendant, but this preference cannot be considered as a validdefence for withholding payment.It wouldstill beso even if either Autovesl or Isogen proved to be of littleusefulness to the defendant, so long as what was suppliedstrictlycorrespondedtothesetwo programmes/merchandise.Chapter IV of the mustbe kept in mind when disputes of the present nature call to bedecided.In particular, Section 34 envisagesthat deliveryof even a part of the goods would operate as a deliveryofthewhole, unless the formerisclearly severedfrom the rest.The defendant/applicantshould haverecordedacaveatthat thesoftwarecouldbe treatedashaving been accepted only upon deliveryof Pvelite.This could not be possible since Pvelitewas notpartofthecontract.Alternatively,the defendant/applicantcouldhave declined to acceptthe partdeliveryif that is how it viewed thesituation. Theintervening period of several months is significant andclearly fatal to the projected defence.Theoffer to supply Pvelite cannot have the effect of invalidating the initial contract.

13. Isthe Court expected to take into consideration thedealingsinter se the defendant/applicant andits customer,namelyFACT.The purchase order of FACTon thedefendant is dated 20th July, 1994;theplaintiff is not even mentioned therein.Thereafter the defendant hadissued its purchase order dated 2nd August, 1994 to the plaintiff at its New Delhi Office and payment was to bemadeby the defendant.FEDO was only mentionedin thecontextof delivery.The plaintiffs invoicewas issuedto the defendant, which was liable to clearthe considerationand has infact made substantial payments. Althoughinthe delivery clause there isanindirect mentionthat FEDO can claim damages for late supplyby thedefendant,andthatthelattercanmakea correspondingclaimontheplaintiff,thepresent disputeraisedbythedefendantatbestconcerns unsuitabilityofthesoftware, andnotlatesupply thereof.Thedefendanthasplacedrelianceon correspondenceexchanged between itself and FEDOwhich isoneyear(Annexure-B)andtwoyearslater (Annexure-C).Sucheventscannotbetakeninto contemplation in an action for the price of goods, where thepropertyin the goods has passed to the buyerand the buyer wrongfully neglects or refuses to pay for the goodsaccordingtothe terms ofthecontract(see Section55 of the).Sections 41 and 42 of theAct conjointly indicate that if defects in the goods are not recordedwithin a reasonable time, they will havebeen deemedtohave been accepted.Furthermore, bymaking substantialpaymentsforthe price of thegoodsthe defendanthasacted in a manner which would renderit inconsistentfor the plaintiff to still claim ownership thereon.Ona careful reading of the, itappears thatthe intendment is generally that the price ofthe goodsmust be paid and if there is a subsequentdefect (incontradistinctiontoa defect detectedwithina reasonabletimeofthe delivery) the remedythatis envisagedis for the buyer to sue for damages.This is obviouslyimpregnatedwithsoundcommonsenseand business ethics.In the present case, raising questions pertainingtothe suitability of the supply afterone yearis not reasonable.A triable issue does not arise becausewhat was supplied by the plaintiff was what was orderedbythedefendant,if itdidnotsuitthe lattersrequirementstheplaintiffcannotbemade responsibleand liable.Significantly, it has not been shownthat any legal action has been filed even by FEDO forrecovery of damages from the defendant.Some prima facie evidence of such an action should have been filed bythedefendanttojustify the grantofleaveto defend.

14. Evenifthedefence as to delay insupplyis considered,timeallegedly being of the essence,this alsodoesnotraiseagamutofdisputedfacts necessitating the holding of a trial.Section 11 of theprescribesthat stipulations as to time are tobe gatheredfromthe contract.Since thedefendanthas filedthepurchase order with FEDO it can beperused; nostipulationthattimeisoftheessenceis immediatelyevident.The contract between theparties stipulatethat delivery should be made by10.8.1994, i.e. withinfour weeks of the Letter ofIntent,and uponfailureliquidated damages would be imposed.It wouldbe reasonable to expect such a complaint tohave raisedatleastwithinamonth.Tojudicially countenance complaints raised after several months would tantamounttoviolating the legislatures intent ofan expeditious disposal of commercial complaints.Leave to defendshouldbegrantedonly ifavaliddefence, requiringatrial,is disclosed.Such adefenceif entertainedmay be allowed subject to terms.However, inthepresent case the defence in essence isofthe unsuitabilityof Autovesl and Isogen, and not delayin their supply.No triable issue has arisen.The present caseiswhatwasenvisaged in category(d)ofthe decisionoftheSupreme Court in theM/s. Michalec Engineers case (supra).

Inthis analysis the defendants applicationis dismissed.The suit is decreed with costs.