1 sj397-09.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.397 OF 2009 IN SUMMARY SUIT NO.3486 OF 2007 Ankur Drugs and Pharma Ltd. .. Plaintiff Versus Wizard Bio Tech Pvt. Ltd. & Ors. .. Defendants Mr.Sudhan Amare for plaintiff Mr.D.P.Guchiya for defendants CORAM : S.C.DHARMADHIKARI, J. DATE : 9th November 2011. P.C.: 1] The plaintiff has filed this suit for recovery of a sum of Rs.54,29,795/- as per the particulars of claim Annexure C to the plaint with further interest. 2] It is stated that the suit is filed as summary suit invoking Order XXXVII and no relief is claimed which falls outside the purview of Order XXXVII Rule 2 of CPC. 3] It is stated that the claim in the suit arises out of written contract as evidenced by the purchase orders, delivery challans and invoices annexures A-17, B-1 to B-10. They are described as invoices/ bills/ debit notes and delivery challans, lorry receipts respectively by the plaintiff. It is stated that the same evidence receipt of goods without any dispute as to their quality or quantity. Further, the receipt confirms correctness of the particulars mentioned in the invoices. It is stated that the plaintiffs called upon the defendants to pay the 2 sj397-09.doc amount of Rs.40,72,509 and a reference is made to Advocate's notice dated 10th June 2006. It is stated that in reply to this notice, all that is stated is that the defendants desired to have a meeting to sort out certain pending issues but they never came forward for meeting. On the other hand, the contents of the letter amount to admission of the liability to pay the amount that is claimed in the notice. 4] On the other hand, in the affidavit in reply specifically a plea is taken that the suit is not maintainable as summary suit because what is sought to be claimed are amounts at the foot of running account. There are several disputes inasmuch as dealings have been going on from 2002 onwards and during the course of dealings the plaintiffs had instructed defendant No.1 by letters dated 13th November 2003 and 16th January 2004 to make payment to third parties on their behalf, who were actually creditors of the plaintiffs and accordingly the payments were made to third parties. However, credits have not been given for the said amounts and the details thereof as annexed to the plaint and the affidavit in rejoinder, would go to show that there is dispute with regard to correctness of the entries and figures mentioned therein. The entire and correct statement of account has not been produced. Further, reliance is also placed upon certain communication from the drug dealer which would evidence inferior quality of the goods and materials supplied. For all these reasons, it is stated that triable issues arise and in any event defendant No.2 cannot be proceeded against for recovery of the sum mentioned in prayer clauses of the plaint. 3 sj397-09.doc 5] Upon hearing learned Advocates for the parties and after carefully perusing with their assistance all the materials on record, I am satisfied that the defendants have made out a case for grant of unconditional leave. On perusal of the plaint and annexures, it would be prima facie evident that in the Advocate's notice itself, a copy of which is at Annexure C to the plaint, there is a reference to several supplies of products. There in reference is also made to claims pertaining to certain bills. However, in the same notice, there are several amounts claimed stated to be referred to in debit notes. This is not, therefore, a case of the suit being filed on written contract as evidenced by the purchase order, delivery challan and invoices and, therefore, claiming sums which are confirmed and admitted at the foot of account. This is a clear case where there is a running account and which contains several entries and payments which are made from time to time, not only towards, certain invoices but alleged debit notes. The reference to the debit notes would itself make it clear that the claim is under running account but the balance thereunder is clearly disputed in the light of the statements made in the affidavit in reply. For all these reasons, triable issues arise as the entries in the account will have to be proved by the plaintiffs by leading oral and documentary evidence. For all these reasons and particularly in the light of the statements made in the reply affidavit, unconditional leave to defend is granted to the defendants. Accordingly, the suit is transferred to the list of commercial causes. Defendants to file written statement within twelve weeks from today. Discovery and inspection to be completed within that period. (S.C.DHARMADHIKARI, J)