abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 240 OF 2007 IN SUMMARY SUIT NO. 13 OF 2007 M/s R.K. Metal & Plastic Pvt. Ltd. .. Plaintiff V/s M/s Sah Petroleums Ltd. .. Defendant Mr.S.M. Shettigar for the plaintiff. Mr.S.S. Rai for the defendant. CORAM : D.G. KARNIK, J. DATE : 22ND APRIL 2009 P.C. P.C. P.C. : 1. Heard the learned counsel for the parties. 2. In my view, the defence of the defendant raises triable issues and the defence cannot be said to be illusory for the reasons briefly indicated below. 3. The plaintiff has filed the suit for recovery of goods sold to the defendant. The goods were supplied on - 2 - 28th October 2003. According to the defendant, the goods were not as per the specifications. The defendant, after inspection of the goods, rejected them and informed about the rejection to the plaintiff vide telefax dated 30th October 2003. Two or three more fax messages were sent by the defendant asking the plaintiff to collect the goods as they were not as per the specifications. Of course, the plaintiff has denied the receipt of the fax messages. Whether such fax messages were sent by the defendant and received by the plaintiff is a disputed question of facts which cannot be decided in a summary manner. 4. It is also worthwhile to note that the plaintiff kept quiet for more than 2 1/2 years and did not make the demand of the price. It issued notice only after 2 1/2 years. The demand notice was replied and the same defence was taken by the defendant. 5. In the circumstances, the defendant is granted unconditional leave to defend the suit. 6. The suit shall stand transferred to the list of commercial causes. The defendant shall file the written statement within 10 weeks. (D.G. KARNIK, J.)