1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISICTION SUMMONS FOR JUDGMENT NO. 359 OF 2008 IN SUMMARY SUIT NO. 2545 OF 2008 M/s. Nova Flexipack Pvt. Ltd. ... Plaintiffs. Vs. M/s. Parikh Packaging Pvt. Ltd. ... Defendants. Mr.J.P. Sen alongwith Sheetal Shah i/by Mehta Girdharlal for the Plaintiffs. Mr.M.D.Shetty for the Defendants. CORAM : A.A. SAYED, J. DATE : JULY 1, 2009. P.C.:- 1. The above Summons for Judgment is taken out by the plaintiffs for a judgment to be entered in their favour against the defendants in the suit for a sum of Rs. 9,81,955/- alongwith further interest @ 24 % per annum on the principal sum of Rs. 5,92,405/- from the date of filing of the suit till the payment and/or realization. -2- 2. The suit is based on 2 Invoices in respect of goods sold and delivered. Viz: Invoice No. 400/05-06 dated 10.08.2005 valuing Rs. 5,14,016/- and Invoice No. 495/2005-06 dated 3.09.2005 valuing Rs. 68,398/-. The plaintiffs have relied upon Purchase Orders and the Delivery Challans in order to show the receipt of the goods by the defendants. 3. According to the plaintiffs, the defendants, in order to evade payment raised false claim in regard to the quality of the goods sold to the defendants and the alleged defective goods have not been returned to them. 4. It is the plaintiffs' case that the defendants have furnished 'C' form in respect of the goods purchased and received by the defendants, covering the aforesaid two Invoices. The plaintiffs addressed letter dated 31.3.2008 demanding payment. Thereafter letter dated 11th June, 2008 was addressed through their advocate also. The said letters, according to the plaintiffs, have not been replied to. The learned Counsel for the plaintiff has drawn my attention to the Invoices wherein it is mentioned that the non- payment of the bills would attract 24% interest per annum and that the same is subject to Mumbai jurisdiction. He also invited my attention to form - C annexed as Exhibit "G" to the plaint and the statement, which is found on the -3- rear side of the form - C. He submitted that only Bill / Invoice Nos. 190, 2005 and 211 are in respect of the alleged defective goods and the Bill / Invoice Nos. 400 and 495 do not pertain to the defective / returned goods. 5. The defendants have filed a reply, wherein the issue of limitation and territorial jurisdiction have been raised. It is stated that the defendants' office and workshop are at Ahmedabad and plaintiffs' factory is at Daman and no part of cause of action has arisen in Mumbai and, therefore, this Court has no jurisdiction to entertain and try this suit. The learned Counsel pointed out that the Purchase Order clearly mentions that the Courts in Ahmedabad would have jurisdiction in case of any dispute and, therefore, this Court would not have jurisdiction to entertain and try this suit. 6. The learned Counsel for the defendants pointed out that there has been rejections from their customers of the goods supplied by them using the material supplied to them by the defendants. He also pointed out the C - form (Exhibit "G to the plaint) and, in particular, the statement overleaf, and submitted that the goods were supplied sometime from 6.4.2005 to 3.9.2005 and the total value of the goods was Rs.73,78,519/- and that since some of the goods were rejected by their customers, the defendants informed the -4- plaintiffs about the same by various faxes. The learned Counsel submitted that since the goods were supplied in lots, it is very difficult to specify or pinpoint as to which of the lot of the goods were defective and that it was only after their customers informed them, that they came to know about defective quality of the goods. The learned Counsel for the defendants submitted that looking to the volume of the business transacted by defendants with the plaintiffs which was close to Rs. 74 lacs and the claim being of less than Rs. 6 lacs, it is not as if the defendants were avoiding payment. He submitted that the C - form cannot form the basis to determine which of the lot of goods were defective. The learned Counsel drew my attention to Exhibit "B" to the reply, which are the 'minutes of meeting' held between the representative of the plaintiffs and the defendants. The minutes are signed by the representatives of plaintiffs and the defendants wherein it is recorded that there was some problem found in some of the goods and that the rejection had come from the defendants' customers. According to the defendants, the plaintiffs had agreed and assured to give them set off for the rejected goods and that the plaintiffs were bound to give credit to the defendants for the rejected goods. -5- 7. A rejoinder is also filed by the plaintiffs, wherein it is stated that the affidavit-in-reply does not give any description of the goods or of the films which have been allegedly returned so as to co-relate them with the goods supplied by the plaintiffs under the Invoices which are the subject matter of the suit. It is submitted by the learned counsel for the Plaintiffs that in any event the the alleged value of the films which have been returned is Rs. 2,13,059/- and, therefore, the defendants are admittedly liable insofar as the balance amount is concerned. It is submitted that as per the Invoices, the defect in the goods ought to have been brought to the notice of the plaintiffs within 7 days from the delivery of the goods as stated in the Delivery Challan. It is further pointed out that leave under clause XII of Letters Patent has been obtained by the Plaintiffs. 8. I have heard the learned Counsel for the parties and perused the material on record. 9. It is noted from the statement in the C - form (Exhibit "G" to the plaint) that there was a huge volume of business between the plaintiffs and the defendants within a short period from 6.4.2005 to 3.9.2005 and goods were supplied in lots by the Defendants to the Plaintiffs to the tune of Rs. -6- 73,78,519/- covering more than 70 Invoices. The claim however is less than Rs.6 lacs and there appears to be no grievance so far as the rest of the amount is concerned. Significantly, the plaint itself speaks about the defendants having raised the issue of defective quality of goods. The plaint also avers - "In this connection, considerable correspondence entered between the parties". Prima facie, the learned Counsel for the defendants would be right in submitting that it would be very difficult looking at the volume of the transaction to pin point which lot of the goods which was supplied by the defendants was defective inasmuch as the defendants have, using the material of the Plaintiffs, supplied goods in the form of pouches to their customers and the same were rejected by their customers. It is also noted that the Purchase Order of the defendants itself mentions that the Court at Ahmedabad would have jurisdiction. The Minutes of the Meeting held between the representatives of the parties, indicate that some of the goods were rejected. The relevant portion of Minutes of Meeting read as follows :- "We observed all rejected roll & found problem same as above 37.5 mic. Poly has been consumed but if any rejection come from customer regarding your COF problem we will transfer it to you......." -7- 10. These minutes are signed by the representatives of the plaintiffs and the defendants. Thus, it is evident that some goods were rejected. Pertinently, the entire transaction between the parties which covered more than 70 Invoices is not brought forth in the plaint and there is no mention of the 'Minutes of Meeting' in the plaint. The contention of the defendants that it would be difficult to co-relate as to whether the defective goods were or were not from the lot supplied under the Invoices which are the subject matter of the suit and that since the rejection has come from the customers at a later stage, the defect in the goods could not be pointed out earlier cannot be disbelieved at least at this prima facie stage. The Minutes of Meeting would also lend support to this contention. In any event, it is apparent that some goods were rejected and the defendants may be entitled to a set off . In the reply it is stated that the list of 'some' of the rejected and returned goods were annexed, and therefore, I am not inclined to accept the case of the plaintiffs that the value of goods returned is Rs.2,13,059/- and therefore the defendants are admittedly liable so far as the balance amount is concerned. -8- 11. In the circumstances, in my view the defendants have raised substantial defence and triable issues in the mater and they are entitled to unconditional leave to defend the suit. Hence, the following order :- O R D E R (i) The defendants are granted unconditional leave to defend the suit. (ii) The suit to stand transferred to the list of commercial causes. (iii) Written statement to be filed within 30 days. Affidavit of documents within eight weeks thereafter. Discovery and Inspection within eight weeks thereafter. 12. Summons for Judgment is dismissed and to stand disposed of accordingly. [A.A.Sayed, J.]