-: 1 :- HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 252 OF 2008 IN SUMMARY SUIT NO. 1966 OF 2008 M/s. Shree Sidhambika Pharma Pvt. ..Plaintiff. Versus M/s. Unicure(I) Pvt. Ltd. ..Defendant. Mr. R. A. Shaikh for the plaintiff. Mr. Neerajkumar Singh i/b Anjana Dutta for the defendant. Coram : R. V. MORE, J. Date : February 10, 2010. P. C. : 1. Heard Mr. R.A.Shaikh, learned counsel for the plaintiff and Mr. Neerajkumar Singh, learned counsel for the defendant. The plaintiff has filed the above suit against the defendant for recovery of an amount of Rs. 18,02,897.92 paise along with interest. 2. The plaintiff is the private limited company carrying on business of importing, trading and manufacturing among other things, pharmaceuticals and raw bulk drugs. The defendant is also a private limited company engaged and licensed to carry on the business of among others, manufacturing drugs with specified formulations on contract job basis for its clients. It is the case of the plaintiff that the defendant purchased 15 kg of Dydrogesterone from the plaintiff vide purchase order dated 28th November 2006. The plaintiff by its invoice dated 1st December 2006 informed the defendant that the total cost of material is Rs. 26,05,590/-. It is further case of the plaintiff that the material Dydrogesterone was dispatched to the defendant on 1st December 2006. In accordance with the -: 2 :- tax invoice, the defendant was obliged to pay the abovesaid amount on or before 30th January 2007. The defendant issued two post dated cheques, dated 8th May 2007 and 11th June 2007 respectively for an amount of Rs. 15 lacs and 9.50 lacs. The first cheque dated 8th May 2007 was honoured. However, cheque dated 11th June 2007 was not honoured by the bank since the defendant had issued stop payment instructions to the bank. The defendant through its advocate issued notice dated 7th December 2007 to the plaintiff alleging that the material supplied by the plaintiff was spurious. The defendant alleged that it suffered loss of Rs.2,15,525 and called upon the plaintiff to make payment of Rs.17,15,525. The plaintiff thereafter issued letter dated 27th December 2007 explaining the matter to the defendant and called upon the defendant to pay the balance amount of Rs.11,05,590/-. Inspite of this notice, the defendant did not pay the balance amount, and therefore, the plaintiff was constrained to file the above suit for recovery of the amount mentioned above. 3. Mr. Shaikh, learned counsel for the plaintiff invited my attention to the purchase order at Exhibit-A, pre-shipment result of analysis of raw-material Dydrogesterone at Exhibit-B, Tax invoice at Exhibit-C, particulars of claim at Exhibit-K and the defendant’s notice dated 7th December 2007 to the plaintiff at Exhibit-I and submitted that in pursuance of the purchase order placed by the defendant with the plaintiff, raw material Dydrogesterone was supplied to the defendant and the defendant has accepted the terms and conditions laid down in the tax invoice. It was further submitted that the defendant paid an amount of Rs.15 lacs by cheque dated 8th May 2007 towards the price of raw material Dydrogesterone. However, the second cheque dated 11th June 2007 was not -: 3 :- honoured by t he defendant. He further submitted that the allegation of the defendant that the raw material Dydrogesterone supplied by the plaintiff to it is spurious is after thought. 4. Mr. Neerajkumar Singh, learned counsel for the defendant on the contrary invited my attention to the letter dated 23rd August 2007 issued by the Drug Inspector, FDA, Maharashtra State, Mumbai to the defendant, which is annexed at Exhibit D-6 to the affidavit in reply, and submitted that the material supplied by the plaintiff was not Dydrogesterone but 6 Dydrogesterone, an isomer of Dydrogesterone. He further submitted that if the analysis report annexed at Exhibit-B to the plaint is compared with the parameters in the authoritative books, then it is clear that the raw material supplied by the plaintiff was not Dydrogesterone. Thus, the plaintiff has supplied the spurious raw material to the defendant and has thereby practiced fraud on the defendant. He lastly submitted that in the above circumstances unconditional leave to defend deserves to be granted. 5. Having heard the learned counsel for the respective parties and having gone through their pleadings, I am of the opinion that the defendant has raised triable issues which requires trail and adjudication and therefore unconditional leave deserves to be granted. The plaintiff has annexed analysis report issued by ARBRO, Government approved Test House. The said report discloses that the melting point of the raw material was 141°c to 142°c and specific rotation +168.5, whereas in the authoritative books, the relevant extract of which is annexed at Exhibit-D5 to the affidavit in reply of the defendant, the parameters of the above raw material are that melting point 167°c to 171°c and specific -: 4 :- rotation -446 to – 464. I have also pursed the letter dated 23rd August 2007 issued by the Food & Drugs Administration to the defendant. The said letter discloses that the raw material in question was an isomer of Dydrogesterone and not Dydrogesterone. In the light of above facts, I prima facie find substance in the contention of the defendant that the plaintiff supplied spurious raw material to the defendant company. In my opinion the defendant has raised triable issues which need trial and adjudication by this Court and therefore unconditional leave to defend the suit deserves to be granted to the defendant. In the result, I pass following order. -: O R D E R :- (1) The defendant is granted unconditional leave to defend the suit. (2) Defendant to file written statement within the period of 16 weeks from today. Discovery and inspection within four weeks thereafter. The suit is transferred to the list of commercial causes. (3) Summons for Judgment stands disposed of. (R.V. MORE, J.)