1 46 sj.161.09 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 161 OF 2009 IN SUMMARY SUIT NO. 3482 OF 2008 M/s. Laxmi Ply & Veneer. ... Plaintiff Versus Amin Shekh. ... Defendant ----- Mr. Amit H. Yadav for the Plaintiff. Ms. P.M.Bhansali i/b Vikrant K. Narkar for the Defendant. ----- CORAM : A.S.OKA, J. DATE : 14 th January, 2011. P.C. 1 Heard the learned counsel appearing for the Plaintiff in support of the summons for judgment. The suit is for recovery of the price of goods allegedly sold by the Plaintiff to the Defendant. In the plaint, the Plaintiff is relying upon three invoices dated 29 th May, 2006, 9 th June, 2006 and 7 th September, 2006 respectively under which, according to the Plaintiff, the goods were sold and delivered. The Plaintiff has relied upon three delivery challans corresponding to the three invoices. It is stated that the goods covered by the three invoices have been delivered to the Defendant and the Defendant has accepted the delivery without 2 46 sj.161.09 any protest. It is stated that amount payable under the first two bills has been already paid by the Defendant and the grievance in the suit is that amount payable under the third invoice has not been paid. The Plaintiff has annexed to the plaint photocopies of the third invoice and corresponding delivery challan. The Plaintiff is relying upon letter dated 4 th September, 2007 addressed to the Defendant as well as notice dated 3 rd October, 2007 sent by the advocate for the Plaintiff to the Defendant. 2 The learned counsel appearing for the Plaintiff submitted that out of the three invoices relied upon in the plaint, the delivery was admittedly made of the goods covered by the first two invoices and the Defendant has paid price of the goods covered by the first two invoices. He submitted that the goods covered by the third invoice were also delivered at the same address, which is mentioned in the delivery challan. He pointed out that except for mere denial, there is no defence raised by the Defendant. He, therefore, submitted that the Defendant has no defence and the summons for judgment may be made absolute. 3 I have given careful consideration to the submissions. The Plaintiff is relying upon three invoices out of which in case of two, the payment has been admittedly made by the Defendant. The Plaintiff is relying upon letter dated 4 th September, 2007 addressed to the Defendant by which the Defendant was requested to make the payment. In the reply to the summons for judgment, the Defendant has specifically denied to 3 46 sj.161.09 have received the said letter dated 4 th September, 2007. In fact, to the advocate’s notice dated 3 rd October, 2007, the Defendant issued a reply on 27 th October, 2007 clearly denying that any goods were supplied to the Defendant under the third invoice. In paragraph No.2 of the said reply, the Defendant has specifically denied to have received letter dated 4 th September, 2007. 4 Notwithstanding a clear denial in the reply to the advocate’s notice, in the plaint, the Plaintiff has not set out manner in which the letter dated 4 th September, 2007 was dispatched and as to how the letter was received by the Defendant. Though there is clear denial of the invoice and delivery challan, there are no specific assertions made in the plaint giving material particulars such as the place at which the goods were delivered and who received the goods. 5 In the circumstances, the defence of denial does not seems to be a moonshine or frivolous defence. In any event, there appears to be a plausible defence available to the Defendant. 6 Hence, a case is made out for grant of unconditional leave to defend the suit. 7 Accordingly, summons for judgment is disposed of by granting unconditional leave to defend the suit. 4 46 sj.161.09 8 Written statement shall be filed within a period of twelve weeks from today. 9 Suit shall be transfered to the list of commercial causes. [ A.S.OKA, J ]