1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Summons for Judgment No.147 of 2008 IN Summary Suit No.668 of 2008 Charanjit Singh .. .. Plaintiff v/s. Technocraft Industries (India) Ltd. .. Defendant Mr.B. Saraf i/by T.N. Tripathi & Co. for Plff. Ms.Vaishali Choudhari for Deft. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 6 th April 2009 P.C. : 1. This Suit is filed upon the written contract for sale of a machine to the Defendant evidenced by the Defendant's Purchase Order dated 18.4.2003, the Plaintiff's invoice dated 15.2.2005 and the delivery challan dated 15.2.2005. 2. It is seen that the Defendant placed the order for the said machine. The Purchase Order shows the terms of payment. The Purchase Order was placed upon the Plaintiff in Mumbai. It was received by the Plaintiff upon which the Plaintiff delivered the machine. Hence the offer of the Defendant was accepted by the firm. The delivery of the machine has been made to the Defendant at its place of business and the delivery challan has been signed by the 2 Defendant showing the receipt of the machine. The total cost of the machine is Rs.12,50,000 /- . The Defendant had made an advance payment of Rs.4,20,000 /- . The balance amount of Rs.8,30,000 /- has remained unpaid. The Plaintiff has charged interest at the rate of 12% per annum thereon under the Interest Act from the date of the legal notice. The Plaintiff's invoice shows the charge towards the sales- tax at the rate of 15.3% of the total amount of the machine on which the Plaintiff has charged interest at the rate of 24% per annum. 3. The delivery of the machine is not disputed. It is contended that trial of the machine had to be taken at the place of business of the Defendant as per the terms of the contract under the Purchase order of the Defendant. The part of the amount was to be paid in advance against the delivery and part upon the successful trial of the machine. The Defendant paid the initial amount, but nothing against the delivery or thereafter. 4. It is its case that the machine, which was delivered, could not be commissioned or started due to technical fault and the Plaintiff's representative was not even deputed for that purpose. The machine was admittedly received on 15.2.2005. 3 5. The Defendant has produced 4 letters stated to have been sent by courier to show that the machine could not be started as the trial could not be taken despite requests. It is this defence of the Defendant which will have to be considered for its worth. The very first letter of the Defendant is dated 17.2.2005 sent by the professional couriers under No.14652962. The courier receipt shows only the rubber stamp of the Plaintiff. The rubber stamp of the Plaintiff is not signed by any representative. The Plaintiff has denied that it is its rubber stamp and it is its case that it has a different rubber stamp bearing its address also. The signature and acknowledgment by the Plaintiff through the Plaintiff's representative is not shown. Hence the receipt of the letter cannot be seen. The second letter making similar request upon similar telephone call and alleging about the financial losses is dated 26.2.2005. Hence that is written more than a month after the first letter similarly sent by the same courier and endorsed with the rubber stamp without any signature. The third letter dated 25.4.2005 mentions about 3 earlier letters (including one of 16.3.2005 which has not been produced) and claiming to have spent Rs.60,000/- for labour to start the machine unsuccessfully. The letter is shown to be received similarly. The 4th letter dated 3.8.2005 bearing a reference to the earlier 4 letters makes a claim of 4 Rs.2 Lakhs as having been spent in addition to Rs.60,000/- earlier spent for starting the machine itself. It could not be started. That is similarly shown to be sent and received. 6. It is not understood why, if the machine could not have been started despite the Plaintiff's telephone call, the machine was not returned to the Plaintiff. The Defendant has retained the machine. The contract is otherwise shown to be complete. The liability upon the goods supplied and retained is, therefore, seen. 7. The case of the Defendants of having written these 4 letters as also 2 other letters was made out in reply to the legal notice whilst disputing the Plaintiff's claim. 8. This intrinsic evidence must be evaluated. The very first letter is written on the next day after the receipt of the machine. The machine was delivered at the Defendant's place of business. Some technical representative of the Plaintiff would have accompanied. - It is not shown that the machine was delivered otherwise or that no technical representative was present at the time of delivery. The representative could have been told at that time to start the machine since that was the very specific, express and written term of the contract under the Purchase Order. If that was 5 not done, the Plaintiff would have made certain telephone calls. The telephone call could have been made on 15.2.2005 or 16.2.2005. If such a telephone call is made, the Defendant would not be expected to write a letter on that day putting on record the telephone discussion to visit the Defendant or depute the Plaintiff's technical representative since the machine could not be started. The letter does not show any urgency. The letter only calls upon the Plaintiff to depute its representative to start the machine. Such a letter is not expected from a business man who has been delivered the machine only a day before. Such requests are expected to be made telephonically and not through courier. Even the courier receipts of such a letter are not expected to be kept. Did the Defendant know that the Plaintiff would not start the machine ? Did the Defendant require to give evidence of the letter having been written and sent to the Plaintiff ? Such a conduct is not expected of persons in business for the usual course of business dealings. The other letters written at the distance of several months are equally surprising. If the machine is not started, the Defendant would telephone and insist upon a date for commissioning the machine. It would not be expected to write half a dozen letters mentioning the same fact and not insisting upon a specific date and time for that purpose. 6 9. The Defendant's defence shown in the 4 letters stated to have been sent by the courier, which are not acknowledged by the Plaintiff, does not show any genuine defence. The Defendant having kept the Plaintiff's machine and not having made any complaint is liable to make payment thereof. The Defendant claims that the interest has not been agreed to be paid under the contract. It is indeed claimed under the Interest Act. It is also claimed towards the sales- tax liability. The interest amount can be considered at the time of the Suit. Mr.Saraf states that he does not press the claim of interest on the sales- tax amount at this stage. 10. The Defendant claims that this Court has no territorial jurisdiction. That contention is incorrect. The material part of the cause of action has arisen within the jurisdiction of this Court. The Defendant's Purchase Order has been communicated to the Plaintiff in Mumbai, upon which the Plaintiff could have accepted the Defendant's offer. The payment under the offer is required to be made. The Plaintiff's office is also within the jurisdiction of this Court. The place of payment is the place where the material part of the cause of action arises. Besides Mr.Saraf states that the Plaintiff has obtained leave under Clause- 12 of the Letters Patent. 7 11. The Defendant shall deposit the balance principal amount payable under the suit contract for delivery of the machine to the Defendant being Rs.8,30,000/- within 8 weeks from today. If such payment is made, leave to defend is granted. Defendant to file its Written Statement within 30 days of such deposit. 12. Receipts of courier produced by the Defendant's Advocate are returned to him. (SMT.ROSHAN DALVI, J.)