1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.107 OF 2008 IN SUMMARY SUIT NO.319 OF 2008 ADHUNIK TRANSPORT ORGANISATION LTD. ..PLAINTIFFS VS. NEW CHEMI INDUSTRIES LTD. ..DEFENDANTS Mrs.K.G.Parmar for Plaintiffs Mr. Rafeeq Peermohideen i/b Pravin Mehta & Mithi & Co. for Defendants CORAM: Smt. ROSHAN DALVI, J. DATED : 8th APRIL, 2009 P.C.: 1.The Plaintiff is the transporter who transported the goods of the Defendants under the admitted contract between the parties, Exhibit A to the Plaint. The contract is not for payment of any liquidated amount. The contract is only to transport goods to various destinations. Under the contract the payment is to be made within 30 days. This payment would be upon the goods transported and the bills issued. 2 The contract made no mention of the extent of the payment to be made. 2.The account of the various transportations came to be maintained by the Plaintiffs. Accordingly bills came to be issued from time to time. The list of outstanding bill Exhibit B to the Plaint. Total amount of outstanding is Rs.186062. This is not a liquidated amount under any written contract. It is the amount payable at the foot of the Plaintiffs account with the Defendants. The Plaintiffs issued notice to clear that amount Exhibit C to the Plaint. 3.It is the Defendants' case that 61 boxes were short in the consignment which reached them on 22.09.2005. Upon the particulars of stock receipt the Plaintiffs' representative has signed on that date. The driver of the Plaintiffs has also signed. The Defendants has filed FIR for theft of those 61 boxes. The Defendants has sued for recovery of compensation for the loss of goods in 2007. 4.Thereafter, the Plaintiffs filed winding up Petition. That came to be dismissed upon observing that the acknowledgment of the Plaintiffs' representative is made on the date of delivery being 22.09.2005 itself, and that is not disputed by the 3 Petitioner. Thereafter, this Summary suit is filed disputing that liability as well as the authority of the plaintiffs' representative to sign the stock receipt upon delivery. 5.It would have to be seen in the suit upon evidence whether the representative had authority and whether the dispute shown by the Plaintiffs is proper and accordingly take accounts. Consequently reliance by the Plaintiffs upon judgment in the Case of Union Bank of India Vs. Raman Iron Foundry, AIR 1974 SC 1265 shows that there is no liquidated claim upon the suit for damages which can be ascertained as a debt presently due and payable. Defendants shall have unconditional leave to defend the suit. Defendants to file their written statement within 30 days. (Smt. Roshan Dalvi, J)