- 1 - rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.103 OF 2009 in SUMMARY SUIT NO.3225 OF 2008 Yash Enterprises .. Plaintiff vs Livewell Aviation Services Pvt.Ltd .. Defendants .. Mr.H.V.Chande for Plaintiff Mr.S.R.Tejpal a/w Mr.Ashok Verma i.b M/s Tejpal & Co for Defendants CORAM: R.V.MORE,J DATED: November 3rd, 2009 P.C. 1. The plaintiff filed above Suit against the defendants for recovery of a sum of Rs.97,815.89 with further interest. The claim in the suit is for recovery of the price of the goods sold and supplied by the plaintiff to the defendants. 2. It is the case of the plaintiff that the defendants placed orders with the plaintiff for the sale and supply of 3 vaccum cleaners. In pursuance of these orders the plaintiff sold, supplied and delivered the said three vaccum cleaners to the defendants at aggragate value of Rs.60,000/-. The defendants never raised any objection with regard to the quality, quantity and price of the said goods. It is the case of the plaintiff that the defendants have signed the delivery challans. The - 2 - plaintiff thereafter raised bills and submitted to the defendants their two invoices under which the said goods were supplied. The two invoices dated 16.9.2005 and 26.9.2005 which are annexed at Exhibit A and A-1. It is the further case of the plaintiff that inspite of invoice dated 28.9.2007 and 17.6.2008 and notice of demand dated 4.8.2008 the payment was not made by the defendants and therefore the plaintiff was constrained to file the above suit. 3. Learned counsel for the defendants relied upon the Full bench decision of this Court reported in 2007 (4) Mh.L.J. 517 and submitted that in the absence of any written contract the suit filed by the plaintiff under the provisions of order 37 rule 2 of the C.P.C. is not maintainable. He also submitted in the absence of written contract the defendants are entitled to defend this suit and therefore, unconditional leave deserves to be granted. 4. Having heard learned counsel for the respective parties, I am of the view that the defendant is not entitled for unconditional leave. It is not disputed by the defendants that under invoices nos. 873 and 923 dated 16.9.2007 and 26/6.2005 three vaccum cleaners were supplied to them by the plaintiff. The invoices are annexed at Exhibit A and A-1 to the plaint. It is also - 3 - not disputed that the defendants in acknowledge of the receipt of the above vaccum cleaners signed the delivery challans bearing no. 2014 dated 15.2.2005 and No.2076 dated 26.9.2005. The defendants till today never raised grievance about quality and quantity or the price of the goods delivered. Notices given by the plaintiff from time to time are also not replied by the defendants. It is only defence of the defendant that the suit is not maintainable under the provisions of Order 37 rule 2 of the C.P.C.for want of written contract and relied upon the decision of the Full Bench in Jyotsna K.Valia vs T.S.Parekh and Co (supra). 6. I do not find any merit in this submission of the defendant in view of the observations of the Full Bench in para 16 which are reproduced below : A written contract therefore need not be evidenced in a single document written by the parties since the written document can be by exchange of documents in writing between the parties. On the other hand, an implied contract would arise by the acts of parties to indicate an implied contract. A written contract contemplated under Order XXXVII need not be necessarily signed by both the parties. However, the writing must be such to arrive at a conclusion that an agreement certainly has been brought into existence and that the claim made under such an agreement ought to be indisputable. In Jugal Kishore Rameshwardas vs Mrs.Goolbai Hormusji AIR 1955 SC 812 while construing section 2 (a) of the Arbitration Act, 1940 the Supreme Court observed that it is well settled law that to constitute an arbitration agreement in writing it is not - 4 - necessary that it should be signed by the parties and it is sufficient if the terms are reduced to writing and the agreement of the parties is established. In the Arbitration Act of 1955 section 7 specifically provides that the arbitration agreement shall be in writing.” 7. In the present case, delivery challans have already been signed by the defendants. The defendants never raised dispute regarding the equality and quantity or the price of the goods. In my view the delivery challans mentioned above constitute a written agreement. In the above circumstances, I do not find that the defence of the defendant is honest. However, I grant leave to defend the suit to the defendants on deposit of the amount of Rs.97,000/- within a period of five weeks from today. If the amount is not deposited as stated above, liberty to the plaintiff to apply for ex parte decree. If the amount is deposited, in time the suit shall stand transferred to the list of commercial causes. Defendants to file written statement within a period of four weeks thereafter. Summons for Judgment is disposed of in aforesaid terms. R.V.More, J - 5 -