JUDGMENT - PATEL J.N., J.:—Heard the learned Counsel for the parties. 2. The plaintiff has filed this suit under Order XXXVII against the defendant claiming a decree in the sum of Rs. 1,21,91,304/- (calculating it at the rate of Rs. 43/- per US $) on the basis of the goods supplied by the plaintiff to the defendant under three invoices and the price was to be paid in US $ as shown in Exh. E to the plaint which is as under:-- ---------------------------------------------------------------------------------------------- Sr. No. Bill No. Date Due date Amount in US $ ---------------------------------------------------------------------------------------------- 1. Exp. 114 27-1-1998 06-06-98 94,773.80 2. Exp. 115 28-1-1998 11-06-98 94,329.90 3. Exp. 123 16-6-1998 16-06-98 94,415.00 Total US $ 2,83,518.70 equivalent to Rs. 1,21,91,304/- @ Rs. 43/- per US $." 3. In reply to the claim, the defendant has sought unconditional leave to defend the suit by raising a preliminary issue that the defendant is not amenable to the jurisdiction of this Court. For the present, this Court does not propose to deal with the preliminary issue raised by the defendant and as this opportunity can be availed of by the defendant on being granted leave to defend. 4. The other ground raised by the defendant in the matter is that the suit is not maintainable under Order XXXVII, Rule 2 of the C.P.C. for the reason that the suit is not based on any written agreement but merely on the claim based on invoices and the plaintiff proposes to establish its claim by relying upon its books of accounts. 5. The learned Counsel for the plaintiff submitted that the suit is very much maintainable under Order XXXVII as it is based on invoices which amounts to a written agreement as contemplated under Order XXXVII, Rules 1, 2 Clause (b)(i). For the said purpose, the learned Counsel for the plaintiff has placed reliance on the decision of the Madras High Court in (Lucky Electrical Stores v. Ramesh Steel House)1, 1988(I) Mad.L.J. 187. For the said purpose, the learned Counsel for the plaintiff has placed reliance on the decision of the Madras High Court in (Lucky Electrical Stores v. Ramesh Steel House)1, 1988(I) Mad.L.J. 187. In reply to this, the learned Counsel for the defendant submitted that even if it is accepted that the suit is based on the three invoices under which the plaintiff claims to have supplied goods to the defendant, still it is not maintainable and for the said purpose, he placed reliance on two decisions, one is a decision of the Delhi High Court in (S.V. Electricals Ltd. v. Sylvania and Lakshman Ltd.)2, A.I.R. 2000 Delhi 156 and the other is that of the Andhra Pradesh High Court in (Pragathi Bearings v. Laxmi Durga Granites Ltd.)3, A.I.R. 2001 A.P. 56. 6. The learned Counsel for the plaintiff has further claimed that the plaintiff is entitled for a judgment and decree as the defendant having executed a guarantee in favour of the bank has discharged its liability through three invoices which have been delivered to it which is not much disputed by the defendant except for saying that these guarantees are not binding nor the plaintiff can rely upon the same for the purposes of proving its claim in the suit. 7. It is submitted by the learned Counsel for the plaintiff that the plea taken by the defendant while seeking leave to defend is that the defendant has received goods which are defective and, therefore, it has initially agreed to pay for the price of goods if some concession is offered. This also clearly demonstrates that the defendant not only received the goods under the invoices but also admitted its liability to pay for the same, but for raising a false plea that the goods supplied are defective. 8. It is submitted that the defence put up on the part of the defendant is that the goods are defective is not specific but vague in nature as can be seen from the various correspondence between the parties. 9. It is submitted that there were negotiations on this count and the plaintiff did agree to give 15% concession to the defendant to settle the account, but as the defendant has failed to accept the proposal, the plaintiff was required to file this suit. 10. 9. It is submitted that there were negotiations on this count and the plaintiff did agree to give 15% concession to the defendant to settle the account, but as the defendant has failed to accept the proposal, the plaintiff was required to file this suit. 10. On the other hand, the learned Counsel for the defendant submitted that the defendant did not accept the proposal of the plaintiff for being given concession of 15% on the amount outstanding against the three invoices but as the parties have been trading since long, the defendant has received various complaints from the persons with whom it was trading about the quality of the goods which have been supplied to him and, therefore, his claim is much more and proposes to file a counter claim in the matter. 11. Therefore, at this stage, the Court is required to consider whether, firstly, the suit is maintainable under Order XXXVII of the C.P.C. or not. This Court is in total agreement with the contention of the learned Counsel for the plaintiff on this issue. The undisputed facts are that the goods were supplied to the plaintiff under three invoices, three documents i.e. invoices, bills of lading and so on were routed through Banque De Commerce Et De Placements S.A. Lugano (Switzerland). The defendant in order to take delivery of the goods was required to release the documents from the bank and for which he executed a guarantee in favour of the bank which is annexed as Exh. B as otherwise the defendant would not have been able to take delivery of the goods. Further correspondence in the matter also clearly goes to establish that the defendant did receive the delivery of the goods as the documents were released by the concerned bank on executing the guarantee in their favour by the defendant. 12. B as otherwise the defendant would not have been able to take delivery of the goods. Further correspondence in the matter also clearly goes to establish that the defendant did receive the delivery of the goods as the documents were released by the concerned bank on executing the guarantee in their favour by the defendant. 12. The learned Counsel for the defendant has tried to put before this Court certain arguments by pointing out from the correspondence, particularly the notice dated 22-12-1998 issued by the plaintiffs Advocates to the defendant to show that the guarantee as claimed by the plaintiff was issued in their favour by referring to the subject-matter of the notice which records as under:- "Re: Payment of the bills drawn by Siyaram Silk Mills Ltd., Mumbai (India) on Tessival S.P.A. for USD 240990.89 due for payment in June, 1998 and guaranteed by Banque De Commerce Et De Placements S.A." The learned Counsel for the defendant submitted that the guarantee executed was in favour of the bank and it was the obligation of the bank to pay the amount in the invoices to the plaintiff. 13. In the case of Lucky Electrical Stores (supra), it has been clearly held by referring to various authorities: "There is, therefore, sufficient authority to indicate that even though the invoice of the bill is not signed by the other party to the contract, as a result of the acceptance of the goods delivered in pursuance of the invoice the demand for the price of goods admittedly received by the purchaser on the basis of the invoice must be held to arise on "written contract". Even according to the defendants, they had received goods in pursuance of their order and the goods were expressly supplied to them. According to them, the amount due was Rs. 10,713.89 out of which they had paid Rs. 9,252.92. Beyond this bare statement there is nothing to show how and when such payments were made. Therefore, the defendants vague plea with regard to the payment of Rs. 9.252.92 without disclosure of any details cannot be said to make out any triable issue. The defendants having admitted that a sum of Rs. 10,713.89 was due would undoubtedly be entitled to an opportunity to show that there was repayment. Therefore, the defendants vague plea with regard to the payment of Rs. 9.252.92 without disclosure of any details cannot be said to make out any triable issue. The defendants having admitted that a sum of Rs. 10,713.89 was due would undoubtedly be entitled to an opportunity to show that there was repayment. At best, they may be entitled to a conditional leave to defend on the deposit of the admitted amount." This was a case where the plaintiff has filed a suit under Order XXXVII of the C.P.C. against the defendant for recovery of a sum of Rs. 11,525/- with interest at 18% per annum on Rs. 6,800/- from the date of the suit till realisation and it was based on a credit bill of the value of Rs. 9,709.37 and the said transaction was based on the invoices under which the goods were sold to the defendant. A plea was raised by the defendant that invoice was neither an order nor a contract and, as such, the suit was not maintainable as a summary suit under Order XXXVII of the C.P.C. which has been negatived by the Madras High Court as referred to above. 14. Insofar as the authority cited by the learned Counsel for the defendant is concerned, in the case of S.V. Electricals Ltd. of the Delhi High Court (supra), it was a case where the Court held that the bill/invoices can be construed as a written contract only if the terms are clearly contained therein, and only if, these terms in the bill/invoice have been accepted expressly, impliedly or by acquiescence. In the present case, it is evident on going through the contents of the three invoices on which the plaintiff has placed reliance that it does contain all terms and conditions and the defendant having received delivery of goods under these invoices which were cleared through the bank has accepted the goods in accordance with the terms and conditions mentioned in the invoices, particularly relating to the liability to make payment within 120 days of the date of bill of lading. Therefore, there cannot be any doubt in ones mind that the invoices on which the plaintiff has placed reliance are written agreements sufficient to bring the suit within the ambit of Order XXXVII. 15. Therefore, there cannot be any doubt in ones mind that the invoices on which the plaintiff has placed reliance are written agreements sufficient to bring the suit within the ambit of Order XXXVII. 15. In the decision of the Andhra Pradesh High Court in Pragathi Bearings case (supra), the objection raised in respect of the outstanding bill was that there was no specific averment in the plaint and the conditions stipulated at the foot of the invoices would amount to a written contract which would give necessary jurisdiction to the Court. This authority has been cited in support of the contention that the plaintiff has failed to plead that the suit is based on the invoices and the terms and conditions stated therein. For that purpose, reference can be made to the cause of action. There is no specific pleadings in the plaint while referring to invoices and the invoices contained the terms and conditions so as to make out a written agreement and, secondly, that the suit is based on accounts, particularly when the plaintiff has specifically pleaded in para 12 that it is based on books of account maintained by the plaintiff. 16. Insofar as the first contention is concerned, this Court finds that when the plaintiff has relied upon the invoices and annexed them to the plaint, it will have to be read as a part of the pleadings and it is not necessary that the plaintiff should also plead in detail the contents of the documents while basing his claim on the invoices, the plaintiff has further stated that the amount due and payable by the defendant is same and shown in the books of accounts. 17. Therefore, in the opinion of this Court, the only triable issue which arises is as to the quality of the goods supplied by the plaintiff to the defendant that they are found to be defective, then definitely the defendant would be entitled for being compensated against the claim of the plaintiff for unpaid price of goods. This should not mean that the right of the defendant to lodge a counter-claim is fore-closed. 18. The learned Counsel for the defendant vehemently argued that once the Court comes to the conclusion that there is a triable issue raised by the defendant, then the defendant is entitled to unconditional leave. The purport of Order XXXVII does not appear to be so. 18. The learned Counsel for the defendant vehemently argued that once the Court comes to the conclusion that there is a triable issue raised by the defendant, then the defendant is entitled to unconditional leave. The purport of Order XXXVII does not appear to be so. In a given case, more than one issue may arise and if any one of the issues is held to be triable, that by itself would not entitle to the plaintiff to have an unconditional leave. In the present case, the issue is relating to jurisdiction and supply of defective goods may arise after the written statement is filed by the defendant. On seeing the affidavit for leave to defend, what this Court finds is that the defendant has in clear terms accepted the delivery of the consignment of goods as per the invoices. The admission is clear from the correspondence when the defendant disputes the quality of goods which have been supplied and, therefore, to that extent, this Court is inclined to grant conditional leave to the defendant to defend the suit. 19. The defendant is granted leave to defend the suit on condition that the defendant shall deposit 50% of the amount claimed in this Court within a period of 12 weeks from today. On failure of the defendant to deposit the amount as directed by the Court, the plaintiff would be entitled to a judgment and decree as prayed for. The defendant to file its written statement within eight weeks thereafter. In the event the defendant deposits the amount as directed, the suit would stand transferred to the list of commercial causes. 20. Summons for judgment stands disposed. 21. Certified copy expedited. 22. Parties be given copies of the judgment duly authenticated by the Associate of this Court. Order accordingly. -----