IN THE HIGH COURT OF DELHI AT NEW DELHI
No.- of 2015
IN
CS(OS) No. 1126/2015
IN THE MATTER OF:
RAM KISHORE NAGARMAL MARKETING PVT LTD
….PLAINTIFF
VERSUS
TAGHLEEF INDUSTRIES L.L.C ….DEFENDANT
REPLY ON BEHALF OF THE DEFENDANT TO THE
COUNTER CLAIM FILED BY PLAINTIFF BEFORE
THE HON’BLE HIGH COURT
MOST RESPECTFULLY SHOWETH:
PRELIMINARY OBJECTIONS: -
A. That at the very outset the Defendant denies all that has
been alleged, averted, contented and submitted by the
Plaintiff in their Counter Claim filed by them, and
further the contents of the Reply are reaffirmed as true.
B. That the Plaintiff has filed the Counter Claim only as a
counterblast to the already existing suit filed by the
Defendant against the Plaintiff wherein the Plaintiff of
this Counter Claim is liable to pay the duly recoverable
amount as mentioned by the Defendant of this Counter
Claim.
C. That this Counter Claim by the Plaintiff is nothing but
are in the nature of sham proceedings only meant for the
sole purpose to delay the judicial process in the already
sub- judice suit for recovery of money filed by the
Defendant herein against the Plaintiff herein.
D. That the Plaintiff herein has no grounds at all to sustain
and defend in the already pending suit for recovery filed
by the Defendant herein before the High Court of Delhi
and thus this Counter Claim is being initiated by the
Plaintiff to derail the process of justice.
E. That the present Counter Claim is liable to be dismissed
on this ground that it has not been filed by the duly
authorised person / representative of the Plaintiff
Company and no Board Resolution to file the Counter
Claim has been passed by the Plaintiff Company as per
the rules and thus this Counter Claim has no legal
submissive value in the eyes of law.
F. That the present Counter Claim is not liable to be
allowed on the basis of the completely vague and
frivolous averments made by the Plaintiff in the Counter
Claim under reply. Hence in the present circumstances
the present Counter Claim is liable to be dismissed.
G. That the Counter Claim filed by the Plaintiff is not
maintainable and none of the defense taken by the
Plaintiff are of any legal consequence since the defense
taken by the Plaintiff are completely contradictory to the
written terms and conditions/contents of the written
agreement and document/s between the parties.
H. That the Counter Claim by the Plaintiff is not
maintainable and is liable to be dismissed, as the same is
nothing but an abuse of the process of this Hon’ble
Court and as such, the same is liable to be dismissed
with exemplary costs.
I. That the Counter Claim by the Plaintiff is not
maintainable and is liable to be dismissed, as the
Plaintiff has not come to this Hon’ble Court with clean
hands and have concealed material & vital facts from
this Hon’ble Court & have further, presented a false,
malafide, distorted & incorrect version of the facts
before the Hon’ble Court, and have thereby attempted to
misguide and mislead this Hon’ble Court.
J. That the present Counter Claim by the Plaintiff is liable
to be dismissed as there is no act or omission on the part
of the Defendant which constitutes deficiency in service
in any manner, hence the present Counter Claim is liable
to be dismissed in limine.
PARA WISE REPLY TO THE COUNTER CLAIM
1. & 2. That the contents of Paragraph numbers 1 and
2 of the Counter Claim are accepted as a matter of record
and hence warrant no reply by the Defendant herein.
3. & 4. That the contents of Paragraph numbers 3 & 4
of the Counter Claim are also admitted as a matter of
record. The Plaintiff had deposited a security
amount/advanced deposit of US $25,000 with the
Defendant before starting the business relations with each
other.
5. That the contents of para no. 5 of the Counter
Claim are accepted as a matter of record and hence need no
reply.
6. That the contents of para no. 6 of the Counter
Claim are accepted as a matter of record. The Plaintiff had
placed an order for ten containers in July/August, 2014
consisting of three containers of metalized films, one
container of NHS15/18Mic films and six containers of
TPT23 Tape films with the Defendant on cash against
documents basis.
7. That the contents of para 7 of the Counter Claim
under reply are wrong and denied. Each and every averment
made therein is wrong and hence specifically denied. It is
submitted respectfully that the six containers of TPT23
Tape films had no quality issues and had there been such
quality issues in the products, the Plaintiff should have
raised it at the very first opportunity when the same was
allegedly noticed by the Plaintiff and further the same could
have also been brought in at the time of the Agreement
dated 11.11.2014 between the parties with a mention that
the discounted price is being raised and given on these
containers due to some quality issues, but the very fact that
the same was neither ever raised before this date by the
Plaintiff nor brought up in the agreement between the
parties, clearly proves the hollowness of these allegations
and are being raised to only wriggle themselves out of their
fault and breach of obligation under the agreement and
making of payment for the remaining pending shipment due
to the Defendant for which the Defendant has already filed
a suit for recovery against the plaintiff.
8. That the contents of Para no. 8 of the Counter
Claim under reply are wrong and denied. Each and every
averment made therein is wrong and hence specifically
denied. It is reiterated that the six containers of TPT23 Tape
films had no quality issues and hence no need to ship back
the consignment of the remaining four containers. No such
process for calling back of the containers of the said TPT23
Tape films was started as alleged by the Plaintiff and the
whole story is only made up to cover the dishonest intention
of the Plaintiff of gaining unfair advantage over the
Defendant.
9. That the contents of para. 9 of the Counter
Claim under reply are admitted to the limited extent that an
Agreement dated 11.11.2014 was entered into between the
parties whereby the Defendant agreed to send revised
invoices at a discounted price of $1.85 per kg (from $2.05)
for the four remaining containers of TPT23 tape films and
also agreed to pay $5000 for the wastage incurred in already
cleared two containers of TPT23 Tape films as well as
detention and ground charges of the remaining four
containers till 21.11.2014, only in case the Defendant sent
the revised invoices to the bank of the Plaintiff by
14.11.2014. Each and every averment made therein is
wrong and hence specifically denied. Further it is most
respectfully submitted that in complete compliance with the
aforementioned agreement as executed by the parties, the
Defendant sent the revised discounted invoices to the bank
of the Plaintiff on 12.11.2014, that is, prior to 14.11.2014,
which is within the time period as mentioned in the
Agreement and as agreed between the parties.
10. That the contents of Paragraph number 10 of
the Counter Claim under reply are wrong and denied. Each
and every averment made therein is wrong and hence
specifically denied. It is submitted that there was no such
email from the Plaintiff to the Defendant to change the date
of 21.11.2014 to 25.11.2014 on the alleged grounds.
11. That the contents of Para no. 11 of the
Counter Claim under reply are wrong and denied. Each and
every averment made therein is wrong and hence
specifically denied. It is submitted that that in complete
compliance with the aforementioned agreement as executed
by the parties, the Defendant sent the revised discounted
invoices to the bank of the Plaintiff on 12.11.2014, that is,
prior to 14.11.2014, which is within the time period as
mentioned in the agreement and as agreed between the
parties.
12. That the contents of Para no. 12 of the
Counter Claim under reply are wrong and denied. Each and
every averment made therein is wrong and hence
specifically denied. It is submitted that the Plaintiff was to
pay the said amount as per terms and conditions of the
aforesaid agreement but since the Plaintiff didn’t fulfill their
part of the agreement, the same stands void in the eyes of
law.
13. That the contents of para. No. 13 of the
Counter Claim under reply are admitted to the limited
extent that the Defendant had sent a legal notice to the
Plaintiff on 26.11.2014. It is submitted that the Defendant
honored their part of commitment of the aforesaid
agreement fully.
14. That the contents of Para no. 14 of the
Counter Claim under reply are wrong and denied. Each and
every averment made therein is wrong and hence
specifically denied. It is submitted that the Defendant had
already sent the revised discounted invoices to the bank of
the Plaintiff on 12.11.2014, that is, prior to 14.11.2014,
which is within the time period as mentioned in the
agreement and as agreed between the parties and hence
there was no failure on the part of the Defendant as alleged
by the Plaintiff. It was the Plaintiff who failed to make
payment as per the conditions of the agreement.
15. That the contents of Para no. 15 of the
Counter Claim under reply are accepted as correct and
hence need no further reply.
16. That the contents of Para no. 16 of the
Counter Claim under reply are wrong and denied. Each and
every averment made therein is wrong and hence
specifically denied. It is submitted that there was no
agreement by the Defendant to compensate the Plaintiff for
the wastage incurred by the Plaintiff in the two cleared
TPT23 Taped films and there was no quality issues with
them. Neither were the Defendant liable to pay the sum of
Rs. 3,30,338.40 as per Clause 4 of the aforesaid agreement.
17. That the contents of Para no. 17 of the
Counter Claim under reply are wrong and denied. Each and
every averment made therein is wrong and hence
specifically denied. It is submitted and reiterated that the
Defendant had already fulfilled their commitments under
the aforesaid agreement hence there lies no cause of action
against them. Since it was the Plaintiff itself that violated
the terms of the agreement, the Defendant has suffered huge
losses in business and hence are not liable to return the
amount of US$ 36000 deposit amount as it shall be used as
a compensation of the same.
18. That the contents of para. No. 18 of the
Counter Claim under reply are admitted to the limited
extent that the Hon’ble Court has the jurisdiction to try the
counter claim. Each and every averment made therein is
wrong and hence specifically denied. It is submitted that
there is no cause of action against the Defendant and hence
the aforementioned Counter Claim is liable to be dismissed.
19. That the contents of Para no. 19 of the
Counter Claim under reply are wrong and denied. Each and
every averment made therein is wrong and hence
specifically denied.
PRAYER
Therefore, in view of the facts and circumstances as
mentioned above, the Defendant prays that this Hon'ble
Court may graciously be pleased to:-
(a) Dismiss the Counter Claim of the Plaintiff with costs;
(b) Award the cost of the present proceedings, in favour of
the Defendant Company;
(c) Pass any other and further relief which this Hon’ble
Court may deem fit, just and proper in the circumstances
of the case be also passed in favour of the Defendant.
Defendant
Taghleef Industries LLC
Through its Authorised Representative
Mr. Marwan Kiswani
Throug
h
New Delhi JP ASSOCIATES
…/01/2016 Counsel for the Defendant
