: 1 : SJ-325-08=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 325 OF 2008 IN SUMMARY SUIT NO. 533 OF 2008 Lissome Cosmetics Pvt. Ltd. .. Plaintiffs v/s. Mr. Sunil Jose .. Defendants Prop. Of M/s. J.S. Distributors ......... Mr. M.P. Nair for the plaintiffs Mr. C.K. Thomas for defendants ......... CORAM : R.Y.GANOO, J. DATE : 27th SEPTEMBER,2010. P.C. : 1. According to plaintiffs, under Invoice no.137 dated 28th August, 2006 plaintiffs sold goods to the defendants worth Rs.68,234.02/-. The said goods were delivered by the plaintiffs to the defendants and defendants have failed to pay the costs of the same. 2. The suit was initially filed on the strength of Invoice however, at a later point of time, it was amended to add few facts namely Cheque no. 3643894 issued for Rs.68,234.02/- by the defendants when deposited by the plaintiffs came to be dishonoured and that is how the cause of : 2 : SJ-325-08=.sxw action was added to claim monies on the strength of a dishonoured cheque. 3. Defendants have filed written statement as also affidavit-in-reply. Defendants have to the written statement annexed letter dated 2nd September, 2006 and raised contention that defendants had not placed any order covered by the suit invoice and as the goods were delivered to the defendants against their wishes, they had inspected the same and they found that the goods are due to expiry very shortly and that they were not sealed in proper manner. Defendants claim to have sent letter dated 2nd September, 2006 to the plaintiffs’ Sales Manager about the said points. According to plaintiffs, this is a defence put up by them namely goods were not ordered and / or defective goods were delivered to the defendants. So far as the stand of the defendants that goods were not ordered is word against word. Defendants admit having received the goods. Copy of the letter dated 2nd September, 2006 is produced. However, receipt of the said letter by the Sales Manager Mr. Jairam is not produced. Though, it is the stand of the defendants that the said letter was served upon Mr. Jairam by hand delivery, subsequent letter dated 15th November 2006 is a letter by which defendants wanted to return the goods to the plaintiffs and settle the account. : 3 : SJ-325-08=.sxw 4. The fact that goods were received by the defendants is admitted in terms of letter dated 2nd September, 2006. The stand of the defendants that letter was addressed to Mr. Jairam and the same was delivered to him is not made out. Hence, as of today, the defence of the defendants that defective goods were delivered to them is required to be tested as the said stand is taken for the purposes of opposing the claim of the plaintiffs. It is required to be mentioned that the learned Counsel for the plaintiffs stated that blank cheque was already handed over by the defendants and after the receipt of the goods by the defendants, plaintiffs filled in necessary particulars, deposited the same in the bank and said cheque is dishonoured on account of ‘stop payment’. Learned Counsel for the defendants had contended that because the defective goods were sold, the stop payment order were passed. Considering the entire record, it is clear that the defence of the defendants that defective goods were delivered needs recording of evidence. The goods continue to be with the defendants. The defendants are required to be put to terms to contest suit and prove their stand. Hence, defendants can be ordered to deposit a sum of Rs. 35,000/- in the Court as a condition to contest the suit. In view of the above, summons for judgment is disposed of by passing following order. : 4 : SJ-325-08=.sxw ORDER (i) Upon defendants depositing in this Court a sum of Rs.35,000/- on or before 30th October, 2010, defendants are granted leave to defend the suit. Defendants to deposit the monies in the Court on or before 30th October, 2010 and thereafter, file written statement directly in the office on or before 26th November, 2010. (ii) While filing the written statement as above, defendants should annex proof of deposit of Rs.35,000/-. There shall be no order as to costs. Suit to come up in usual course for final hearing. (R.Y.GANOO, J.)