1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. SUMMONS FOR JUDGMENT NO.479 OF 2007 IN SUMMARY SUIT NO.2522 OF 2007 Ventura Lifestyles Pvt. Ltd. ..Plaintiff. Vs. Livewel Aviation Services Pvt. Ltd. and others ..Defendants. ..... Mr. J.G. Shukla i/b G.H. Shukla & Co. for the Plaintiff. Mr. Munir Merchant for the Defendants. .... CORAM: DR. D.Y. CHANDRACHUD, J. 14th February, 2008. P.C. : 1. The claim in the suit is on account of goods supplied and delivered. The Defendants placed an order with the Plaintiff on 27th March, 2001 for 168 “Mock Aircraft Training Chairs” each at a price of Rs.6,000/-. 56 chairs were to be delivered by 27th April, 2007. The schedule of payments was to the effect that 40% advance would be furnished while the balance would be paid within 15 days of the date of receipt / invoice. In the event that delivery was delayed, the Defendants reserved the right to levy a penalty at Rs.500/- per day. On 19th May, 2007 the Defendants cancelled the purchase order stating that though an advance of Rs.1,34,400/- was furnished, the goods were not delivered. The Plaintiff 2 responded by a letter dated 23rd May, 2007 stating that the chairs were customized specially for the Defendants. On 26th May, 2007 the Defendants stated that in view of the long term business relationship between the parties, the penalty clause was waived and that the Plaintiff may deliver the chairs and submit its bill. In pursuance of the Defendants'' communication the Plaintiff effected delivery on 29th May, 2007. The delivery challan and invoice are on record. For over a month thereafter there was no response from the Defendants whereupon the Plaintiff addressed a letter dated 13th July, 2007 recording that 30 sets (60 seats) of training chairs have been delivered of a total value of Rs.4.05 lacs. After adjusting the amount of Rs.1,34,400/- a balance of Rs.2,76,600 remained due and payable. On this letter, the Defendants purported to endorse that during a visit by the Plaintiff to the Defendant's office it was made clear that the Plaintiff should take the balance quantity of chairs from the Andheri site of the Defendants and that the balance after due adjustment would be released immediately against the receipt of a credit note. The suit is instituted after an advocate's notice dated 18th July, 2007. The reply dated 27th July, 2007 was that the Defendants agreed to retain only 30 chairs and called upon the Plaintiff to lift the balance. 3 2. An affidavit in reply has been filed. The defence in the reply is that when the Defendants agreed to accept the chairs by waiving the penalty clause, it was made clear to the Plaintiff that only 30 chairs would have to be accommodated while the balance may be lifted back which is duly accepted by the representative of the Plaintiff. 3. Prima facie, the defence cannot be accepted. The Plaintiff admittedly delivered 30 sets consisting 60 chairs to the Defendant on 29th May, 2007. This was in pursuance of the Defendants e-mail dated 26th May, 2007 categorically stating that the penalty clause was waived and requesting the Plaintiff to deliver the chairs and submit its bill. If according to the Defendants what was required was only 30 chairs and not 60, there was no reason why the Defendants accepted delivery and took no steps from 29th May, 2007 until the Plaintiff addressed a letter dated 18th July, 2007 calling for the payment of the balance. It was only at the foot of the Plaintiff's letter dated 13th July, 2007 that a unilateral endorsement has been made by the Defendants to the effect that the Plaintiff should take back the “balance quantity chairs”. Even 4 that endorsement is silent on the number of chairs which are required to be taken back. In these circumstances, the Defendants having accepted the delivery, the defence which is now sought to be raised is clearly an after thought. Significantly, there is no dispute raised either in regard to the price or the quality of the chairs. However, with a view to granting to the Defendants an opportunity to contest the suit, it would be appropriate to grant conditional leave to defend the suit subject to the deposit of an amount of Rs.2,70,000/- with the Prothonotary and Senior Master within a period of four weeks from today. Upon deposit, the Plaintiff would be at liberty to withdraw the amount subject to furnishing a bank guarantee to the satisfaction of the Prothonotary and Senior Master which shall be kept alive during the pendency of the suit. The Summons for Judgment is accordingly disposed of. In the event that no bank guarantee is furnished within 8 weeks of deposit, the amount shall be invested in a fixed deposit of a nationalised Bank, to be renewed periodically.