1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.124 OF 2008 IN SUMMARY SUIT NO.2471 OF 2005 M/s.Hansraj Dhanji Talpatriwala ..Plaintiff V/s Vighnahar Sahkari Sakhar Karkhana Ltd. ..Defendant Mr.Charul Abuwalle i/b.M/s.Dave & Co., Advocate, for the plaintiff Mr.P.Colabawala a/w.Mr.Sachin Khedekar, Advocate, for the defendant CORAM : R.M.SAVANT, J. DATE : 8TH DECEMBER, 2008 P.C. . The above suit has been filed for the recovery of an amount of Rs.10,83,044.67/- which are the outstanding hire charges of the three shades put up by the plaintiff pursuant to the Order for the same issued by the defendant. The hire charges of the three shades according to the plaintiff were totally amounting to Rs.21,79,138/-. Out of which according to the plaintiff, they have received an amount 2 of Rs.10,96,093.33/- from the defendant. The above Summary Suit has been filed for recovering the balance of Rs.10,83,044.67/-. 2. The defendant has filed its affidavit-in-reply to the above Summons for Judgment. Upon considering the said affidavit-in-reply in my view, triable issues are raised as regards (i) Whether the suit is maintainable in view of the fact that no notice under Section 164 of the Maharashtra Co-operative Society's Act, 1960 has been issued to the defendant ? (ii) Whether the plaintiff would be entitled to claim the amount on the basis of 1,20,000 bags being stored in shed No.3 instead of 81,375/- bags which have stored according to the defendant ? (iii) Whether the defendant is entitled to recover any damages at the rate of Rs.50/- to 70/- per bag, for the bags which were stored and damaged on account of moisture ? 3. The defendant by its letter dated 15th May, 2002, which is prior to the advocate's notice has brought the aforesaid facts to the notice of the plaintiff. 4. Another aspect to be considered is that the above Summons for Judgment has been filed after six months after the filing 3 of the suit and in fact after about 2 ½ years of the filing of the suit. Though the said fact by itself is not a determinative factor, it is a relevant factor . The said fact is a material fact to be taken into consideration. 5. Since according to the defendant, the amount due to the plaintiff is only an amount of Rs.79,412.67/- after the amount already paid is adjusted against the amount which according to the defendant is due to the plaintiff. Conditional leave is granted to the defendant subject to deposit of Rs.79,412.67/- within a period of eight weeks from date. The suit to stand transferred to commercial causes. The Written Statement to be filed within a period of eight weeks from date. (R.M.SAVANT, J.)