1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. SUMMARY SUIT NO.182 OF 2007 M/s.M. J. Patel (India) Ltd. ...Plaintiff. Vs. M/s.Cochin Shipyard Ltd. ...Defendant. .... Mr. C.N. Mehta with Mr. Avinash N. Joshi for the Plaintiff. None for the Defendant. ..... CORAM :DR.D.Y.CHANDRACHUD, J. March 27, 2008. P.C.: The claim of the Plaintiff arises on account of goods sold, supplied and delivered to the Defendant under an invoice dated 9th January 2004. As against the total value of Rs.4,24,475/-, the Defendant made a part payment of Rs.18,710/-, leaving a balance of an amount of Rs.4,05,765/- as due and outstanding. The suit has been instituted under Order 37 of the Code of Civil Procedure, 1908 for the recovery of the amount due and 2 outstanding under a written contract. In reply to an Advocate's notice dated 28th April 2006, the Defendant by its letter dated 9th May 2006 claimed that an amount of Rs.4,05,764.89 was due and payable to the Defendant in respect of the procurement of material under a separate and independent contract. This was again reiterated in a subsequent letter dated 27th September 2006. The case of the Plaintiff is that the monies due and payable under the purchase order in question could not have been withheld on account of an alleged claim in respect of a completely independent contract. The Defendant has failed to enter appearance despite service of the writ of Summons. The suit has accordingly been listed for an ex-parte decree. The Plaintiff has relied upon a compilation of the original documents which is taken on record. The claim in the suit is duly proved on the basis thereof. The suit falls under the purview of Order 37 since it is based on a written contract. The suit is within limitation. Even otherwise, the Defendant having failed to enter appearance, the Plaintiff is entitled to a decree as prayed, under 3 Order 37 Rule 2(3) of the Code of Civil Procedure, 1908. In paragraph 12 of the Plaint, it has been stated that the Delivery challans and bills were prepared and sent from the Plaintiff's Bombay office to the Defendant at Cochin, goods were transported from the Plaintiff's godown at Bombay to the Defendant at Cochin and the Defendant has placed orders at Bombay. Part payments were made by the Defendant to the Plaintiff in Bombay. However, since the registered office of the Defendant is situated at Cochin, leave was sought and granted under Clause 12 of the Letters Patent. The suit shall accordingly stand decreed in the principle sum of Rs.4,05,765/- upon which the Plaintiff will be entitled to interest at the rate of 9% per annum from the due date of the invoice until the date of the institution of the suit and at the same rate from the date of the institution of the suit, until payment or realisation. The plaintiff will be entitled to the costs of the suit. Refund of Court fees, if any, as per rules. 4 ........