1 sj484-09 ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT FOR 484 OF 2009 IN SUMMARY SUIT NO.1653 OF 2009 Jignesh Harkishan Mehtalia .. Plaintiff Vs. Vamsi Labs Ltd. .. Defendants Mr.M.J.Devani for the plaintiffs CORAM : S.C.Dharmadhikari, J. DATE : December 21, 2010 P.C. : 1. Heard Mr.Devani, learned counsel appearing on behalf of the plaintiffs. None appears on behalf of the defendants despite the matter being on board on several occasions. I have perused the plaint and the annexures thereto, so also affidavit in reply. 2. The suit is based on a written contract as evidenced by the purchase order, delivery challan and invoice. Goods sold and delivered therein have been accepted without any protest. Similarly, the invoice raised has not been disputed. On the other hand, part payments have been made on 10.12.04 and on 5.2.07, leaving balance of Rs.85,644/- which is the subject matter of 2 sj484-09 the plaintiff s claim. The claim is within limitation and the court has ’ territorial jurisdiction to entertain and try the suit. 3. In the reply affidavit what has been urged by the defendants is that the suit claim is barred by limitation and in any event, it is false because although the order was placed for purchase of one MT of Sodium Borohydride Powder, the plaintiff supplied and delivered 1020 kgs of the said chemical under their invoice no.25 dated 10/6/04 for Rs.18,16,234/-. As against this invoice, payment was made of Rs.22,80,737/- which is in full and final settlement. The transaction is of 2004 and thereafter, there is no transaction at all. 4. Therefore nothing remains to be paid to the defendants. With regard to part payment, explanation offered is that payment made by M/s.Sam International is not on behalf of the defendants. Defendants have not instructed this entity to make any payment, in fact as per defendants account there is nothing due and payable. 5. From a reading of para 5 of this affidavit it appears that defendant has a grievance and claim against M/s.Sam International however that is a distinct matter and cannot be raised in this suit. 6. More so, when in rejoinder affidavit, the plaintiff has clarified that the invoice 25 was for Rs.18,16,234/- as against which no prudent business man 3 sj484-09 will make payment of Rs.22,80,737/-. Reliance is also placed upon letter dt. 3.2.07 of Sam International (See para 9 of the affidavit in rejoinder). 7. In these circumstances, prima facie the defence raised that entire payment of invoice has been made, cannot be accepted. The plaintiff has pointed out that the last payment made is of 31.2.07, therefore, the suit filed on 2.4.09 is prima facie within limitation. 8. For these reasons, there will be conditional leave to defend on the defendant depositing in this court a sum of Rs.85,000/- within a period of 12 weeks from today, Suit is transferred to the list of commercial causes. Usual directions to file written statement, discovery and inspection. Summons for Judgment is disposed off in these terms. In default, there will be a decree as prayed. ( S.C.Dharmadhikari, J. )