1 sj82-09.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Summons for Judgment No.82 of 2009 in Summary Suit No.3453 of 2008 Sama S.A.Mineracoes Associates .. Plaintiffs v/s. Suresh Jagiasi & Ors. ..Defendants Mr.S.U.Kamdar, Kamal Khatla i/b. Akshay Vani for the Plaintiffs. Mr.P.M.Shah for the Defendants CORAM : R.Y.GANOO, J. DATED : 11th October , 2010 P.C. : 1. Plaintiffs have filed this suit for recovery of 655213.80 US Dollars and for interest on U.S.Dollars 523066.80 as set out in the plaint. According to plaintiffs, between November 2006 and April 2007 goods set out in the invoices at Exhibit B-1 to B-10 came to be delivered to defendant No.5, a partnership firm and Bills of Lading are relied upon in support thereof. Plaintiffs have joined defendant Nos.1, 2, 3 and 4 to the present suit as plaintiffs were informed that these four persons are partners of defendant no.5 and according to plaintiffs defendant nos.1 to 4 came to be joined as defendant no.5 is 2 sj82-09.sxw an unregistered partnership firm. Affidavit in reply is filed by one Mr. Hundraj Gollaram who is shown as defendant no.4. In para 9 of the affidavit in reply there is a clear statement that defendant nos.3 and 4 are not partners of defendant no.5. Affidavit in reply is filed by Hundraj Gollaram Bajaj and he claims that he is defendant no.4 whereas in the cause title defendant no.4 is shown as Raj Bajaj. Since this person Hundraj Gollaram Bajaj has admitted that he is defendant no.4, there is no controversy as to who is defendant no.4. This affidavit is filed on behalf of other defendants also, which will mean that the affidavit in reply is to be read as having been filed by defendant no.1, defendant no.2 and defendant no.5. If it is the stand of the defendant no.4 that he is not concerned with defendant no.5 at all then I am inclined to treat this affidavit as affidavit of defendant no.4 only and there is no affidavit in reply filed by defendant nos.1, 2 and/or defendant no.5 and as such these parties have gone unrepresented so far as this summary suit is concerned. If defendant nos.3 and 4 are treating themselves as they are not partners of the firm and since there is nothing specifically stated that plaintiffs dealt with defendant nos.3 and/or 4 are concerned. 3 sj82-09.sxw 2. So far as the case of plaintiffs qua defendant nos.1, 2 and 5 it is required to be noted that the goods have been delivered from November 2006 to April 2007. To the affidavit in reply filed by Hundraj Bajaj, certain correspondence is relied upon to show that a grievance was made to the agents of the plaintiffs as regards supply of goods of inferior quality and that the said correspondence was in regard to the case which came to be supplied in November 2006 or thereabout. The goods have been supplied by the plaintiffs even after November 2006 till April 2007. There is no grievance about the supply which has been done on or after December 2006. Even if the case of the defendants is accepted as it is that grievance was made to the agent of plaintiffs, there is no single letter addressed to the plaintiffs directly about the grievance made. Even if it is accepted that grievance was made to the agents of the plaintiffs, that grievance can be restricted to the goods which were supplied in November 2006 and not thereafter. 3. Looking to the nature of the transaction, and because there is no reply from defendant nos.1, 2 and 5, in the circumstances mentioned aforesaid, I am inclined to treat that plaintiffs have been able to make 4 sj82-09.sxw out a case and the summons for judgment will have to be granted. 4. Since the rate of interest is not mentioned in the invoices, this is not a case where summons for judgment can be made absolute against defendant nos.1, 2 and 5, and defendant nos.1, 2 and 5 are required to be put to terms to defend the suit in as much as they will have to deposit in this Court an amount in Indian Rupees equivalent to US Dollars 655213.80 as of 4.12.2008 i.e. the date of lodgment of the plaint. For the reasons mentioned aforesaid, following order is passed to dispose of the Summons for Judgment. ORDER i) Unconditional leave to defend is granted to defendant nos.3 and 4. Upon defendant nos.1, 2 and 5 or either of them depositing in this Court monies in Indian Rupees equivalent to US Dollars 655213.80 as of 4.12.2008 on or before 12.01.2011, defendant nos.1, 2 and 5 are granted leave to defend the suit. ii) All defendants to file written statement on or before 20.01.2011 directly in the court and supply to the plaintiff’s advocate 5 sj82-09.sxw copy of written statement within 10 days from filing of the said written statement. There shall be no order as to costs so far as the summons for judgment. [R.Y.GANOO, J.]