* 1 * W.P. 5205/2003 23.9.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5205 OF 2003 M/s. Electronics Machine Tools Ltd ..... Petitioner V/S. M/s. CNC Engineering Services ... Respondent ------ Mr. P.S. Dani, Advocate for the petitioner. None for the respondent. CORAM :- Smt. R.P. SondurBaldota, J. 23 September, 2010. P.C. :- 1. This petition filed under Article 227 of the Constitution of India seeks to challenge the order dated 4th January, 2002 passed by the VIIIth Joint Civil Judge Senior Division, Pune granting unconditional leave to the respondent to defend Special Summary Suit No.58 of 2001 filed by the petitioner. 2. The respondent had placed with the petitioner purchase order on 18th September, 1999 for certain machinery pursuant to which an * 2 * W.P. 5205/2003 23.9.2010 agreement came to be executed between the parties on 20th September, 1999. The agreement provides for the terms of payment. The total amount payable towards the price of the machinery was Rs.15,76,162/- out of which Rs.8,00,000/- was paid towards the invoice amount and the balance was agreed to be paid as per the specifications under the agreement. The respondent had received two post-dated cheques of Rs.3,46,660/- each as and by way of payment towards the outstanding liability. The cheques however were dishonoured when presented for payment. Thereafter, from time to time the respondent made some payments to the petitioners. With that as on the date of filing of the suit, the petitioner had received a sum of Rs.11,07,841/- leaving a balance amount of Rs.4,68,321/-. The petitioner therefore filed Summary Suit for recovery of a total amount of Rs.5,93,376/- consisting of the principal amount of Rs.4,68,321/- together with the interest thereon. 3. The petitioner took out Summons for Judgment and the respondent filed an application for leave to defend. In the application, the respondent admitted the entire transaction alleged by the petitioner and also admitted in terms that an amount of Rs.4,68,321/- * 3 * W.P. 5205/2003 23.9.2010 is still outstanding in respect of the machinery. It, however, contended that because the machine supplied was not working to its satisfaction, the petitioner was not entitled to the balance amount. 4. Mr. Dani, the learned counsel for the petitioner, submits that the learned trial court has erroneously exercised the jurisdiction vested in it in granting unconditional leave to the respondent to defend the suit. According to him, decree on admission ought to have been granted based on the averments in the application for leave to defend. 5. The trial court granted unconditional leave to defend the suit solely on account of the specific contention taken up by the respondent that the machine supplied is defective. Considering the specific admission of outstanding amount of Rs.4,68,321/- in the application of the respondent there could not have been unconditional leave to defend. If at all the respondent has any claim for damages on account of supply of defective machine, he needs to claim it separately by justifying the damages to be of Rs.4,68,321/-. He cannot simply refuse to pay the balance amount of the price of the machine. The attempt on the part of the respondent to claim damages has already failed with the Consumer Forum at Rajasthan dismissing his * 4 * W.P. 5205/2003 23.9.2010 application for damages. The petitioner therefore succeeds. The petition is allowed in terms of prayer clause (a). The application of the respondent at Exhibit-16 in Special Summary Suit No. 58 of 2001 is disposed off with a direction that the respondent shall deposit sum of Rs.4,68,321/- in the trial court within a period of 10 weeks from today. On such deposit being made, the petitioner is at liberty to apply for its withdrawal to the trial court. In the event of failure to deposit the amount as directed, the application at Exhibit-16 will stand dismissed. [SMT. R.P. SONDURBALDOTA, J]