1 sj396.10.sxw IN THE HIGH COURT OF JDICATURE AT BOMBAY ORDINARY ORIGINAL JURISDICTION SUMMONS FOR JUDGMENT NO. 396 OF 2010 IN SUMMARY SUIT NO. 2413 OF 2010 Mirc Electronics Ltd. ...Plaintiff Vs. M/s Vani Electronics ...Defendants. Mr. S.S. Patwardhan i/by C.N. Chavan for the Plaintiff. Ms.Armin Wandrewala i/by Ms. Sutapa Saha for the Defendants. CORAM : A.A. SAYED, J. DATE : 9TH MARCH 2011. P.C. 1. The above Summons for Judgment is filed by the plaintiff seeking to obtain a judgment in the suit against the defendants for a sum of Rs. 42,53,126/- as per particulars of claim annexed to the plaint together with interest on the principal amount of Rs. 27,95,709/- at the rate of 18% p.a. from the date of filing of the suit till payment and/or realization of the amount. 2. The plaintiff is a company registered under the Companies Act 1956 and having its business of manufacturing and marketing Televisions, Washing Machines, Micro Wave Ovens, Air Conditioners, etc., under the brand name and style "Onida" and "IGO". The defendants are authorized dealers of the plaintiff company. The defendants have been purchasing goods from the plaintiff company and selling the same in the market through 2 sj396.10.sxw their outlets. It is the case of the plaintiff that as per orders placed by the defendants, the plaintiff supplied various goods to the defendants from time to time. The plaintiff has relied upon various invoices for the period from 25-04-2007 to 07-07-2007. According to the plaintiff, the defendants have acknowledged the said invoices. One of such invoice dated 24-05-2007 is annexed as Exh. "A" to the plaint. 3. It is averred in para 11 of the plaint that the plaintiff's claim against the defendants arises out of a written contract. The plaintiff has also relied upon two dishonoured cheques - one cheque bearing No. 931298 dated 7-8-2007 for a sum of Rs. 27,61,083/- and another cheque bearing No. 931299 dated 7-8-2007 for a sum of Rs. 34,706/-, copies whereof are annexed to the plaint. 4. At the outset it is noticed that though the plaint avers that the plaintiff's claim is arising out of a written contract and for that purpose the plaintiff has relied upon the acknowledgment of the defendants on the invoices, it is an admitted position that on the said invoices the rubber stamp appearing is not of the defendants "M/s Vani Electronics", but that of "Vani's e-world" which had no dealings with the plaintiff. In these circumstances, it cannot be said that the invoices have been acknowledged by the defendants. 5. Insofar as the dishonoured cheques are concerned, copies of which are annexed at Exh. "B" and "C" to the plaint, it is significant to note that though both the cheques are dated 7-8-2007, the rubber stamp appearing on the said cheques bear seven-digit telephone and fax numbers of the 3 sj396.10.sxw defendants, instead of eight digit-numbers. The eight-digit number system was introduced by the telephone company sometime in the year 2002. This shows that the said cheques were stale cheques. Hence the contention of the defendants that the said cheques were issued sometime in 2002, prima facie appears to be correct. 6. It is further required to be noted that by letter dated 12th September, 2007, annexed as Exh.7 to the affidavit in reply of the defendants, the plaintiff had called upon the defendants to make payment of the outstanding amount of Rs. 27,49,324/- as expeditiously as possible and without further delay. As mentioned above both cheques are dated 7-8-2007. If the said cheques in possession of the plaintiff are dated 7-8-2007, the question of the plaintiff calling upon the defendants to make payment of the alleged outstanding amount of Rs. 27,49,324/- subsequently vide the aforesaid letter dated 12-9-2007, would not have arisen. This lends credence to the contention of the defendants that the cheques were kept with the plaintiff sometime in 2002 only for security in respect of continuance of the dealership. 7. The defendants have denied that they have placed any orders with the plaintiff for the sum of Rs. 27,61,083 and according to them, there was no outstanding amount payable by the defendants to the plaintiff. The defendants have infact averred that there was a credit balance and the defendants were entitled to receive money from the plaintiff. The defendants have also filed police complaint with the Additional Commissioner of Police, Economic Wing, against the plaintiff in respect of statement of account and reconciliation statements, alleging the same to be forged, 4 sj396.10.sxw fabricated and bogus documents. The plaintiff however has not relied upon any statement of account and reconciliation statement in the plaint, though according to the plaintiff, the said statement of account and reconciliation statement have been signed by the defendants and copies of the said documents were even forwarded to the defendants vide their letter dated 6-08-2007. Copy of the said letter dated 6-08-2007 is annexed by the defendants at Exh. 3 to their reply. 8. In the aforestated facts and circumstances, in my view, the defendants have raised triable issues and appear to have a substantial defence to defend the suit. I am therefore inclined to grant unconditional leave to the defendants to defend the suit. Hence, the following order : (i) The defendants are granted unconditional leave to defend the suit. ((ii) The suit shall stand transferred to the list of the suits of commercial causes. (iii) Written Statement to be filed within 30 days. (iv) Discovery and Inspection within 8 weeks thereafter. 9. Summons for Judgment to stand disposed of accordingly. ( A.A. SAYED, J. )