1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO.1708 OF 2008 Ashish Nitinbhai Ajmera ..Plaintiff Vs. Raj Gharana & Anr. ..Defendants Mr. M.J.Devani for the Plaintiff None for Defendants CORAM: A.P.DESHPANDE, J. DATED: 16TH, April, 2009 P.C.: The Plaintiff carries on business in the name and style of M/s.Textile Trends and thus M/s. Textile Treds is a proprietary concern of which the Plaintiff is a sole proprietor. The Plaintiff has instituted the present suit for recovery of price of goods sold and delivered to the Defendants. The Plaintiff, pursuant to the order placed by the Defendants sold and delivered the textile goods to the Defendants under four bills. Details are as given below. 2 Bill No. Date Amount 1156 16.09.2007 Rs.30,658.75 1219 25.09.2005 Rs.25,892.40 1416 11.10.2005 Rs.28,434.00 1510 15.10.2005 Rs.15,246.49 Thus aggregating to Rs.1,00,231.64 paise. Defendant No.1 is a proprietary concern. Defendant No.2 is a sole proprietor. Out of the amount due and payable by the Defendants towards value of the goods, the Defendants have paid a sum of Rs.6,000/- on 09.11.2006, Rs.5,000/- on 16.05.2007 and Rs.3,000/- on 02.11.2007, thereby leaving a balance of amount of Rs.86,231.64 as due and payable by the Defendants to the Plaintiff. The goods were dispatched by the Plaintiff to the Defendants by road carrier and Lorry receipts of the relevant date and number are placed on record to substantiate the fact of supply of goods by the Plaintiff to the Defendants. It is the case of the Plaintiff that inspite of repeated reminders the Defendants have failed to pay the amount. Thus the Plaintiff was constrained to issue notice to the Defendants calling upon them to repay the amount. The Defendants have replied the notice viz reply dated 15.11.2007 which does not dispute the fact of supply of goods by the Plaintiff and its 3 receipt by the Defendants. However, it is contended in the reply that the quality of goods supplied was not of the standard required by the Defendants. It is then stated that on Plaintiff's insistence the Defendants have retained the goods and attempted to sell the same to the customers but the goods could not be sold. It is also asserted in the reply that the goods, not satisfying standard are been returned along with lorry receipts dated 03.11.2007. The Learned Counsel for the Plaintiff has submitted that after more than two years when Advocates notice was served on the Defendants, they have sent goods back to the Plaintiff. However, the goods so sent were not the same goods which were supplied by the Plaintiff to the Defendants. Hence the Plaintiff has returned the lorry receipt and has not taken the custody of the goods dispatched by the Defendants. In this fact situation suit is filed for recovery of the amount due and recoverable from the Defendants with interest @ 18% p.a. the transaction in question being commercial transaction. Despite service, the Defendants have chosen not to appear before the court. The matter is thus listed for exparte judgment. As the Plaintiff's case of supply of goods stands substantiated from the bills and lorry receipts coupled with the reply notice sent by the Defendants the same deserves to be Decreed. Order 37(2)(3) provides that if Defendant fails to enter appearance then the Defendant shall be deemed to have admitted the claim made in the Plaint. In the result the suit 4 deserves to be decreed. Order The Defendants are directed to pay a sum of Rs.1,22,381.50 together with interest on the principal amount of Rs.86,231.64 @ 18% p.a. from the date of filing of the suit till realisation of the amount. The suit is decreed with costs. The Plaintiff shall be entitled to refund of court fees as permissible under the rules. (A.P.Deshpande, J)