IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.379 OF 2008 IN SUMMARY SUIT NO.724 OF 2008 M/s.Shantilal C. Mehta .... Plaintiff V/s. M/s.PAN Constructions and Ors. .... Defendants Mr.Prashant J. Pandit, for the plaintiff. MR.A.M.Vernekar, for the defendant. CORAM : D.G.KARNIK, J. DATED : 02nd APRIL, 2009. P.C. 1. I have heard the learned counsel for the parties. In my view, triable issues arise in this case. 2. The present suit has been filed by the plaintiff for recovery of a sum of Rs.5,20,000/- as a principal sum being the value of the goods sold, supplied and delivered to the defendants and further a sum of Rs.3,64,000/- representing the interest. 3. By filing the affidavit-in-reply, the defendant has denied the liability. Firstly, it is clear from the documents on record and the submission of the parties that the contract was oral. Thus, the suit is not based on a written contract. Secondly, the defendant has specifically come out with a case that in the month of December 2004, plaintiff represented 2 to the defendant that he had one Rock Breaker Fittings and Attachments of Korean make, which he requested the defendant to try out. The defendant tried out the said equipment and it was found to be not satisfactory and therefore, the supply was rejected. According to the defendant, he informed the plaintiff about the rejection of the goods and asked him to take back the goods. Whether the goods were working properly or rightly rejected by the defendant, are the disputed questions of fact which cannot be decided at this stage on the basis of the affidavits. The defence in that regard of the defendant cannot be said to be illusory especially in view of the fact that the plaintiff himself has chosen not to file suit within reasonable time from the date of the supply or alleged rejection. Thirdly, there is no oral agreement to pay interest, though interest is claimed in the suit. In view of this, it is not necessary to consider other technical contentions of the defendant about the maintainability of the suit on the ground that the plaint has been signed only by one of the partners and hence, the suit is bad in law. The defendant is granted unconditional leave to defend the suit. Suit shall stand transferred to the list of Commercial Causes. Defendant shall file written statement within 10 weeks. ( D.G.KARNIK, J. )