1 sj6-10 ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.6 OF 2010 IN SUMMARY SUIT NO.2555 OF 2009 M/s.Baerlocher India Additives P.Ltd. .. Plaintiffs Vs. M/s.Poweradd Additives and Anr. .. Defendants Ms.Preeti Menon i/b M/s.India Law for the plaintiffs CORAM : S.C.Dharmadhikari, J. DATE : December 10, 2010 P.C. : 1. This summary suit is filed to recover sum of Rs.76,32,565/- as per particulars of claim Annexure Y . It is stated that the plaintiffs have filed this suit on the ‘ ’ basis of a written contract and acknowledgment of liability. Written contract is evidenced by the purchase orders, delivery challans and invoices raised on the defendants for supply of goods. It is stated that though the goods were received after about 1996, belated complaint was made with regard to the 2 sj6-10 quality and alleged defects. However, the defendants failed and neglected to pay money and when demand was made in writing, defendants representative visited office of the plaintiffs. held discussion and acknowledged and admitted their liability and agreed to pay the entire outstanding of Rs.56,12,180/- in equal installments of Rs.2.0 lacs each i.e. Rs.24 lacs every accounting year. Reliance is placed at Annexure H , I and J . Thereafter defendants furnished cheques ‘ ’ ‘ ’ ‘ ’ towards payment of installment as agreed in the meeting held on 3.1.05. Cheques came to be deposited sometime on 9.5.06 but they were not honoured. The notice of dishonor was given on 3.6.06 and it is stated that thereafter, defendants forwarded cheques of Rs.10 lacs each in lieu of dishonoured cheques and offered to amicably settle the matter. On such assertion, it is stated that the last payment was made on 11.5.07 and therefore, this summary suit filed on 9.6.09 is within limitation. 2. In the affidavit in reply, various contentions have been raised. Firstly, it is contended that the claim of the plaintiffs is barred by limitation. It is alleged that the goods were purportedly sold, supplied and delivered between 10.5.02 to 30.9.03. However, this is not a suit based on a written contract as evidenced by the purchase orders, delivery challans and invoices but on a running account under which it is stated that the last payment is made on 11.5.07. It is stated 3 sj6-10 that this payment is sought to be linked with the claim of the plaintiff for sale of goods in 2002 / 2003. Therefore, the suit filed in 2009 cannot be said to be within limitation. 3. After hearing the counsel appearing for the plaintiffs on both counts, namely on limitation, so also, on merits, triable issues arise. Firstly, on limitation, it is stated that the cheques which were forwarded of Rs.1.0 lac each were deposited on 18.8.06, 18.9.06, 20.10.06, 9.5.07. Yet, in para 7 of the plaint, it is stated that the last payment was received on 11.5.07. This is an account which is maintained by the plaintiffs in their books. They have been debiting the defendants account after making the adjustments for part payment. It is not ’ clear from the same that the entry bill adjustment and sale bill relate to the transaction between the parties of 2002-2003. Further, reliance is placed on a letter which is not received by the plaintiffs but wherein it is stated that claim for Rs.60.0 lac as compensation has been kept in abeyance which would show that balance has been confirmed by the defendants. The very reliance on this letter would show that what is kept in abeyance allegedly is the claim of compensation of the defendants. There is no acceptance of the liability in fact in the letter dt.19.5.07, the plaintiffs advocate state that under various invoices from 2002-2004 goods worth Rs.2,45,17,188/- have been supplied and till today 4 sj6-10 payment of Rs.19,35,008/- has been made leaving the balance of Rs.56,12,180/-. In these circumstances, this is a suit on an account maintained in the books of plaintiffs and unless and until it is proved that the part payments can be linked to the subject transaction, the plaintiffs cannot succeed. This by itself gives rise to triable issues. The defence raised therefore, cannot be termed as moonshine and lacking in bonafides. It is not frivolous but substantial. 4. Therefore, there will be unconditional leave to defend. Suit is transferred to the list of commercial causes. Usual directions to file written statement, discovery and inspection. Summons for Judgment is disposed off in these terms. ( S.C.Dharmadhikari, J. )