1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.301 of 2008. IN SUMMARY SUIT NO.248 of 2007 Tradecom International Limited ..Plaintiffs versus Shree Ambeshwar Paper Mills Ltd. ..Defendants Mr.Birendra Saraf i/b. Yogesh Adhia for the plaintiffs Ms.Sunita Pandey i/b. L.J.Law for the defendants CORAM : S.J.VAZIFDAR, J. DATE : 10th AUGUST, 2009. P.C: 1. The suit is filed to recover an amount of Rs.70,11,636/- together with interest on Rs.64,80,894/- at the rate of 8% per annum from the date of the suit till payment. 2. The Plaintiff is the assignee of the claim in suit from one M/s. Gautam Enterprises. 3. M/s. Gautam Enterprises had by their various invoices, raised in April 2003, sold and delivered 2 diverse quantities of waste paper to the Defendants on the basis of seven invoices. Part payments were made leaving the claim in the suit outstanding. 4. An affidavit in reply has been filed. It has not been affirmed as yet. Ms.Pandey, on behalf of the Defendant made a statement that the same would be affirmed today itself. I permitted Mr. Saraf to proceed on the basis of denials. 5. The affidavit does not disclose any defence whatsoever. It is contended in the affidavit in reply that the Defendant had paid the entire amounts to M/s. Gautam Enterprises. There is no proof of the same. It is contended that the Defendants had a running account with M/s. Gautam Enterprises, but that the same remained to be reconciled. There is no proof of the same either. Before me, it was submitted that certain third parties had made payment of the claim in suit to M/s. Gautam Enterprises. There is no proof of this either. 6. The Affidavit in reply in fact contains 3 contradictions. In paragraph 6 it is alleged that goods were not of the requisite quality and that the Plaintiffs were informed of the same. It is further alleged that the Plaintiff thereupon agreed to revise the price at a mutually agreed price. 7. On the other hand, however, it is alleged that the entire consideration had been made. If the goods were of substandard quality as alleged, the Defendants would not have made payment of the same. 8. In this regard it is necessary to set out paragraph 6 to 8 of the affidavit in reply. It reads as under: 6. The defendant entered into seven High Seas Sale Agreements with one Plaintiff for the purchase of total quantity of 1105.437 Mts of the various type of Waste Paper. However the said Plaintiff has not supplied the quantity as agreed. The quality of Waste Paper which was agreed to be supplied in the High Seas Sale Agreement was not of the same quality as received by the Defendant, which was duly intimated to the said Plaintiff. The said Plaintiff thereupon, agreed that prices will be revised at the mutually agreed price in view of the substantial and quality of material. In fact several meetings were held 4 between the representatives of the Plaintiff and the Defendant. However, there was no reconciliation of accounts between the said Plaintiff and the Defendant. 7. The Defendants had a running account with the said Plaintiff. The said Plaintiff had never reconciled the statement of Account. The Plaintiff has suppressed the facts that no amount is due and/or payable by the Defendants to the said Plaintiff. The Defendants is not liable to pay any amount to the said Plaintiff and consequently the Plaintiff. 8. The Deed of Assignment dated 17th February, 2005 executed between the said Plaintiff and the Plaintiff is null, void and not binding on the Defendant. As the Defendants had already made the full and final payment towards the goods delivered to Plaintiff, there is no amount due and payable by the Defendant to the Plaintiff. The Plaintiff is not liable to recover any amount from the Defendants on the basis of the alleged Deed of Assignment of Debt. 9. There is therefore no defence on merits. However, there is no provision for interest in the said invoices. In the circumstances, the Plaintiff s claim for interest can only be from the date of notice demanding the amount i.e. 29.12.2003 (Exhibit C). 10.In the circumstances, the Summons for Judgment is made absolute and the suit is decreed in the sum 5 of Rs.64,80,894/- together with interest thereon at the rate of 12% per annum from 29.12.2003 till payment and/or realisation. 11.Refund as per rules.