1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.124 OF 2009 IN SUMMARY SUIT NO.106 OF 2009 Maxwell Industries Ltd. .. Plaintiffs Vs. Rajkumar Gupta .. Defendant Mr.P.M.Shah i/b M/s.JPS Legal for the plaintiffs Mr.J.T.Nagar for the defendant CORAM : S.C.Dharmadhikari, J. DATE : September 20, 2010 P.C. : 1. The plaintiffs have filed this suit for recovery of a sum of Rs.2,29,840/- as per particulars of claim which is annexed at Annexure 'C' to the plaint. The principal amount is Rs.1,75,227/-. 2. After institution of the suit and obtaining leave under clause XII of the Letters Patent since the Vakalatnama was filed by the defendant, this summons for judgment has been taken out. 3. The plaintiffs state that they are manufacturers and dealers of ready made 2 undergarments and are selling their product under the trade name 'VIP'. The defendant is sued as a sole proprietor, M/s. Vijay Sales Corporation having its office at 32-E, Swadeshi Market, Sadar Bazar, Delhi. It is stated that during the course of business, defendant placed orders on the plaintiff for supply of various products and thus, goods were supplied sold and delivered. 4. The suit is, therefore, on a written contract as evidenced by these documents. The goods have been received without any dispute as to quality or quantity. In all 12 invoices were raised in the aforementioned sum but they remained outstanding. 5. Therefore, the demand was raised in writing on 5.3.08 and thereafter the suit has been filed. It is stated that the suit is filed on 24.10.08 and, therefore, no part of plaintiffs claim is barred by limitation. 6. In answer to the Summons for Judgemnt reply affidavit is filed and it is affirmed by Shri Rajkumar Gupta. The same Rajkumar Gupta is the defendant. However, deponent of the affidavit in reply states that he is not knowing the plaintiff because he is not proprietor of Vijay Sales Corporation. He carries on business in the name and style of Vjay Trading Company and is proprietor of the said firm. He states that he carries on business in this name from the same address as is mentioned in cause title and the respective invoices. After the parties were heard for some time on 8.9.10, I 3 had observed in my order of that date that the defendant should produce the licence granted by Municipal Corporation of Delhi and recorded that he will produce a true copy thereof on the adjourned date. Today, compilation of documents have been tendered which annexes not any licenses but a certificate from the competent authority and the receipts issued by Municipal Corporation of Delhi in the name of Rajkumar Gupta. A copy of the telephone bills is produced and reliance is placed upon the sales tax certificate which shows that the defendant is trading in the name of Vijay Trading Company. It is stated that two partners have retired and there are two partners remaining. Thus, Vijay Trading Company is a partnership firm. 7. It is difficult to accept this stand of the defendant because on affidavit it is stated by him that he is carrying on business as Vijay Trading Company which is a sole proprietorship of the defendant. Now it is stated across the bar that it is a partnership firm in which there are partners other than the defendant. No details of the said partnership firm, its registration and its business activities have been set out. Once the defendant does not dispute that he is Rajkumar Gupta but states that he is carrying on business in a distinct name and style, then, in the absence of relevant documents, it is difficult to conclude that a triable issue has been raised with regard to the identity of the defendant. 8. The certificate which is issued by the Chartered Accountant is at page 1 of the compilation tendered today which clearly states that the defendant is a 4 partner in Vijay Trading Company. The defendant is stated to be dealing in hosiery products. Therefore, it is not as if there is some distinct business activity or that the defendant claims to have never met the plaintiff or never associated himself with any of their activities. It is very clear that the address of the defendant is the same namely 32-E, Swadeshi Market, Sadar Bazar, Delhi. In these circumstances, mere denials on affidavit do not inspire confidence. 9. There is absolutely nothing except bare denials to indicate that a triable issue is raised with regard to the allegations in the plaint. On the other hand, it is for the first time that the liability to pay money is disputed by raising the issue of identity of the parties. 10. In such circumstances and with a view to balance the rights, it would be fair to grant conditional eave to defend. On the defendants depositing in this court, a sum of Rs.1,75,227/- within a period of 12 weeks from today, there will be conditional leave to defend and the suit will have to be transferred to the list of commercial causes. Usual directions to file written statement, discovery and inspection. In default, the consequences in law shall follow. Summons for Judgment is made absolute in these terms. ( S.C.Dharmadhikari, J. )