IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 390 OF 2008 IN SUMMARY SUIT NO. 2123 OF 2008 Balaji Furnishing Pvt. Ltd. … ...Plaintiff Versus Nirupama Dilip Kadam & Anr. … ...Defendants Mr. Gautam Panchal for the Plaintiff Mr. R.D. Soni i/by Ram & Co., for the Defendants CORAM : A. A. SAYED, J. DATED : 18 TH DECEMBER 2009 P.C.: 1. The above Summons for Judgment has been taken out by the plaintiff praying that a judgment be entered in the suit against the defendants for a sum of Rs.1,06,274/- together with further interest on the principal amount of Rs.69,094/- at the rate of 24% p.a. from the filing of the suit till payment and/or realization. 2 2. The claim of the plaintiff in the suit is in respect of goods sold and delivered viz., furnishing fabrics. The plaintiff has annexed copies of Invoices to the plaint being Exhibits “A-1” to “A-5”. It is the case of the plaintiff that the defendants had placed telephonic orders with the plaintiff and the goods were delivered through Siddhivinayak Cargo Service. 3. The receipt of goods is not denied by the defendants. The case of the defendants in the affidavit in reply essentially is that the purchase orders were placed by the partnership firm of defendant No. 2 with one Bhavesh Shah, who claims to be an agent/dealer of the plaintiff and it’s associate firms. The defendants have stated that the said Bhavesh Shah would accept orders from the firm of defendant No. 2 and would forward it to the plaintiff and that the orders were thereafter dispatched by the plaintiff through its various concerns which included M/s Balaji Synthetics, the plaintiff herein, one M/s Lasha Enterprises, etc. According to the defendants, there is nothing due and payable to the plaintiff inasmuch as an amount of Rs. 3 50,000/- was paid vide two cheques of Rs. 30,000/- and Rs. 20,000/- in the name of the plaintiff’s associate firm viz: M/s Balaji Synthetics and that part of the goods were returned and the balance amount of Rs. 4,356/- was also paid by cheque to the plaintiff. 4. The Learned Counsel for the plaintiff submitted that the suit claim is based on amounts allegedly due at the foot of the account and therefore the suit is not maintainable as a Summary suit. He relied upon the Full Bench decision of this Court in the case of Jyotsna K. Valia V/s. T.S. Parekh & Co, 2007 (3) Bom. CR 772. My attention is drawn by the learned Counsel for the parties to Exhibit 1 of the affidavit in reply of defendants, which is a Statement of Confirmation of Accounts by defendants and Exhibit “C” of the further Affidavit in rejoinder of the plaintiff, which is the Ledger Account Statement of M/s. Balaji Synthetics. It is submitted by the learned Counsel for the defendants that on comparing both the statements, while the entry of Rs. 20,000/- bears the same cheque numbers, the entry of Rs. 30,000/- does not reflect the same cheque numbers. 4 5. I have heard the learned Counsel for the plaintiff and the learned Counsel for the defendants and also perused the material on record. 6. Pertinently in the reply of the Advocate on behalf of the defendants to the legal notice sent on behalf of the plaintiff, the defendants have admitted that they have had transactions with the plaintiff and that Rs. 87,040/- was due from them. However according to the defendants a sum of Rs. 50,000/-was paid vide two DDs of Rs. 30,000/- and Rs. 20,000/- to Balaji Synthetics, which is a sister concern of the plaintiff and that part of the goods were returned and balance of Rs. 4,356/- was also paid. The plaintiff on the other hand contended that, the amount sent to M/s Balaji Synthetics was part of a different transaction. It cannot be disputed that M/s Balaji Synthetics, though may be an associate or sister concern of the plaintiff, is a different entity. 7. In the affidavit in reply, the defendants have stated in para 11, that the payments were generally made by the defendant firm on 5 account and were not always bill to bill basis. However in para 8 of the reply, it is stated that the payments to the plaintiff had always been made against the invoices. Insofar as the claim of the plaintiff for interest at the rate of 24% p.a. is concerned, it is noticed that the Invoices are not signed by the defendants and therefore it cannot be said that the defendants had agreed to pay interest as alleged. 8. Taking an overall view of the matter, in my opinion, the following order would meet the ends of justice: (i) The defendants are granted leave to defend the suit conditional upon their depositing in this Court a sum of Rs. 20,000/- within a period of 12 weeks from today; (ii) In the event, the defendants deposit the aforesaid amount, the suit be transferred to the list of commercial causes; (iii) Upon deposit, the plaintiff is permitted to withdraw the amount of Rs. 20,000/- upon their furnishing 6 appropriate security to the satisfaction of the learned Prothonotary and Senior Master; (iv) In the event the defendants fail to deposit the amount, the plaintiff would be at liberty to apply for further orders; 9. The defendants to file their written statement within 12 weeks from today. Affidavit of Documents within 6 weeks thereafter. Discovery and Inspection to be completed thereafter within 8 weeks. 10. Summons for Judgment to stand disposed of accordingly. Sd/- (A. A. SAYED, J)