1 sj163.10.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 163 OF 2010 IN SUMMARY SUIT NO. 245 OF 2010 The Paper Products Ltd. Company incorporated under the Companies Act, having their Regd. Office at Regent Chambers 13 th Floor, Nariman Point, Mumbai 400 021 and factory at L.B. Shastri Marg, Majiwade, Thane. ......Plaintiffs. Vs. M/s. Venkataramana Food Specialties Ltd. having their office at Plot No. B-7, Road No.8, Wagle Industrial Estate, Thane-400 605. ......Defendants. Mr. K.R. Belosay for the Plaintiffs. Mr. R.A. Shaikh for the Defendants. CORAM :- ANOOP V. MOHTA, J. JUDGMENT RESERVED ON :- 25 AUGUST 2011 JUDGMENT PRONOUNCED ON :- 15 SEPTEMBER 2011. JUDGMENT:- The Plaintiffs have filed the Summary Suit on 30 October 2009 2 sj163.10.sxw ssm to recover the sum of `16,08,530/- as the Defendants failed to make the full payment of goods supplied (Packaging materials) as per the purchase orders from time to time though the Defendants received and accepted the goods and there was no dispute as to the quality and quantity. The total sum due and payable for goods sold and delivered was `29,40,232.11. By eight cheques, `18,16,831/- was paid by the Defendants. Outstanding amount was `11,23,401/- by adding interest @ 24%. The total balance due on the date of filing of the Suit is as referred above. 2 This Court on Leave Petition No. 882 of 2009 taken out by the Plaintiffs-Petitioners, has granted leave under Clause XII of Letters Patent on 10 November 2009, based upon Clause 9 of the purchase orders. The Suit was lodged on 10 December 2009 after obtaining leave. 3 The Defendants in spite of notice dated 9 April 2009 failed to make the payment and therefore, the Summary Suit. 4 The Defendants filed appearances through their advocate on 3 rd March 2010. 3 sj163.10.sxw ssm 5 The Plaintiffs have taken out the Summons for Judgment on 20 April 2010 along with the supporting affidavit. The Defendants filed reply on 24 March 2011. The Plaintiffs have filed rejoinder dated 29 March 2011. The matter was adjourned for settlement, but could not be settled and therefore heard finally. 6 The purchase bills/orders and related documents are part of the record ranging from the date 10 October 2006 upto 23 August 2007. By letter dated 31 December 2007 the Defendants have confirmed the amount of `19,85,040.44 as on 31 December 2007. The Summary Suit is filed on 30 October 2009 as the Defendants inspite of legal notice dated 9 April 2009 failed to make the due and balance payment. The Suit, therefore, as filed is maintainable in this Court and is within limitation. 7 Thus, the Defendants though submitted that the Suit is based on the running account maintained by the parties and as from time to time the payments were made, the Suit as filed is not maintainable, is unacceptable. Such Suit in the present facts and circumstances is maintainable, also in view of the confirmation letter so referred above. 4 sj163.10.sxw ssm The other defence was the calculation of arrears of `35,999.89. There is also no reason to accept the defence of the Defendants. 8 There is no denial to the basic aspect of the part payment made by the Defendants from time to time. The assurances so given to make the complete payment as per the terms and conditions mentioned in the purchase orders is not in dispute. The fact of Criminal case against the Defendants in view of dishonour of eight cheques to the extent of `18,16,831/-, is also not in dispute. The principal amount, therefore, as claimed based upon the undisputed invoices which are part of the record, therefore, just cannot be overlooked. 9 It is clearly provided on the bills that if the payment is not received on or before the due date, interest @ 24% per annum is claimed. It is also agreed between the parties that the Defendants make the payment “100% against delivery subject to approval”. There was no objection raised at any time after the receipt of the goods. Therefore, the Defendants were liable to make the payment of 100% payment upon delivery of the goods. The delay in payment, as agreed, was subject to interest @ 24% per annum. All these facts, 5 sj163.10.sxw ssm therefore, has remained undisputed and in my view the Plaintiffs have made out the case for Summons for Judgment. The Defendants failed to raise substantial defence. The defence so raised in view of admitted facts and documents on record is bogus and only with an intention to delay the due and crystalized payment. The Defendants, though opportunity was given, not even settled the matter till this date. 10 Considering this, in view of the agreed terms and conditions and admitted amount including the agreed rate of interest, the Summons for Judgment is granted as prayed. The future interest shall be at 9% till realization. 11 The Summons for Judgment is accordingly allowed. There shall be no order as to costs. The decree be drawn accordingly. (ANOOP V. MOHTA, J.)