1 107 sj.178.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 178 OF 2010 IN SUMMARY SUIT NO. 546 OF 2010 M/s. Vimal Intertrade Pvt. Ltd. ... Plaintiff Versus Mr. L.V.Gala. ... Defendant ----- Mr. S.V.Vora for the Plaintiff. Mr. R.S.Upadhyay for the Defendant. ----- CORAM : A.S.OKA, J. DATE : 04 th February, 2011. JUDGMENT: 1 Heard the learned counsel appearing for the Plaintiff in support of the summons for judgment. 2 The suit is filed for recovery of the price of the goods sold and delivered to the Defendant. The suit is based on four dishonoured 2 107 sj.178.10 cheques. 3 After the cheques were dishonoured, the Plaintiff had issued notice of demand to which a reply was issued by the Defendant that goods worth Rs.10,75,169/- were not delivered. It is alleged that undated cheques were issued on understanding that goods will be delivered and when the cheques were attempted to be dishonestly encashed, the same were dishonoured. 4 The learned counsel appearing for the Plaintiff submitted that as per the agreement between the parties, against invoices, cheques were being issued by the Defendant and thereafter, the Defendant used to collect the goods from the Plaintiff. He submitted that to the reply filed by the Defendant to the summons for judgment, two invoices have been annexed by the Defendant himself. He submitted that it shows that the goods under the said invoices must have been received by the Defendant. He submitted that no grievance was made by the Defendant regarding non-receipt of the goods under the said invoices. 3 107 sj.178.10 5 I have considered the submissions. I have perused the plaint, reply and the rejoinder. Immediately after service of notice of demand, the Defendant came out with the case in reply to the notice that goods worth Rs.10,75,169/- were not delivered. In the reply to the summons for judgment, photo copies of the tax invoices in the sum of Rs. 4,51,100/- and Rs.5,10,835/- have been annexed by the Defendant. A contention is raised that the goods covered by the said invoices were not delivered. 6 There is no prima facie material placed on record by the Plaintiff to show that either the said goods were delivered to the Defendant or that the same were collected by the Defendant. There are no material averments either in the plaint or in the rejoinder as regards the delivery of the goods on a particular day in a particular manner. 7 Therefore, the issue whether the goods were delivered is itself a triable issue and therefore, unconditional leave will have to be 4 107 sj.178.10 granted. 8 Accordingly, summons for judgment is disposed of by granting unconditional leave to defend. 9 Written statement to be filed within twelve weeks from today. Suit shall be transfered to the list of commercial causes. [ A.S.OKA, J ]