1 54 sj.162.09 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 162 OF 2009 IN SUMMARY SUIT NO. 2886 OF 2008 M/s. Laxmi Ply and Veneer. ... Plaintiffs Vs. M/s. KSL Reality and Infrastructure Limited. ... Defendants -------- Mr. Amit H. Yadav for the Plaintiffs. Mr. Rafeeq Peer Mohideen a/w Mr. Amar Varma i/b Paras Kuhad and Associates for the Defendants. -------- CORAM : A.S.OKA, J. DATE : 05 th January, 2011. JUDGMENT: 1 The Plaintiffs have instituted the present suit for recovery of a sum of Rs.2,86,606/-. The principal amount claimed is in the sum of Rs. 2,47,124/- being balance amount payable by the Defendants towards the price of the goods sold and delivered by the Plaintiffs to the Defendants. Interest is claimed at the rate of 18% per annum from the date of filing of the suit till the date of realization. 2 According to the case of the Plaintiffs, they had business transaction with the Defendants. As per the purchase order placed by 2 54 sj.162.09 the Defendants, the Plaintiffs sold and delivered goods to the Defendants under various bills and delivery challans. Reliance is placed on various delivery challans annexed to the plaint and invoice Nos. 297 and 298 both dated 27 th July, 2007 in the sum of Rs.4,62,307/- and Rs.1,84,817/- respectively totaling amount into Rs.6,47,124/-. According to the case of the Plaintiffs, a part payment of Rs.4,00,000/- by cash was made by the Defendants, which was appropriated towards the amount due and payable under the Invoice No.297. Thus, according to the Plaintiffs, a sum of Rs.2,47,124/- is due and payable by the Defendants. 3 The case of the Plaintiffs is that their representative one Shri. Manoj Gala orally as well as by addressing letters called upon the Defendants to pay the balance amount. However, there was no response from the Defendants. Reliance is placed on advocate’s notice dated 9 th June, 2007 addressed to the Defendants by which a demand was made for the amount of Rs.1,75,220/-. Notice was replied by letter dated 15 th June, 2007 by which Defendants demanded particulars of the transactions from the Plaintiffs. 4 According to the Plaintiffs, it was realized that in the notice dated 9 th June, 2007, due to an error, the total amount payable by the Defendants was set out as Rs.5,75,220/- inasmuch as the Vat amount at the rate of 12.5% was not included. Therefore, a fresh notice dated 28 th September, 2007 was addressed by the Plaintiffs to the Defendants, 3 54 sj.162.09 which was duly served to the Defendants in which the demand was made for payment of Rs.2,47,124/- with interest. Though the notice was duly served to the Defendants, there was no response and therefore, present suit has been filed. 5 There is a reply by the Defendants of Mr. Kapil Nikam to the summons for judgment. In the reply, it is contended that on most of the delivery challans, a signature acknowledging the receipt of goods is not appearing. It is pointed out that some of the delivery challans have been singed by one Mr. C.S.Rai as receiver of the goods and it is not explained by the Plaintiffs in what capacity Mr.Rai has signed the delivery challans. The reply contains an averment that the goods as alleged by the Plaintiffs were never delivered to the Defendants and the bills annexed to the plaint are forged and fabricated. In paragraph No. 13 of the reply, the Defendants stated that sum of Rs.4,00,000/- has been paid to the Plaintiffs towards full and final payment of the Plaintiff’s outstanding dues and therefore, no amount is due and payable by the Defendants. 6 The learned counsel appearing for the Plaintiffs submitted that in the reply filed to the summons for judgment, the Defendants have come out with the case that a sum of Rs.4,00,000/- was paid to the Plaintiffs towards full and final settlement of their claim. He submitted that it is not the case of the Defendants that apart from the transaction of sale of goods which is reflected from the plaint, there was any other 4 54 sj.162.09 transaction between the parties. He submitted that the reference to payment of sum of Rs.4,00,000/- is towards the transaction of sale of goods relied upon by the Plaintiffs. He submitted that no particulars have been set out in the reply as to on what basis it is contended that a sum of Rs.4,00,000/- accepted by the Plaintiffs towards full and final settlement of their claim. He submitted that there was no writing to that effect. He submitted that there was no reply filed by the Defendants to the notice dated 28 th September, 2007 denying the invoices. He pointed out that in the claim made in the earlier notice 12.5% Vat amount was not incorporated and therefore, the second notice was issued on 28 th September, 2007 demanding the correct amount. He submitted that there is no denial to the averments made in the said notice. He submitted that the Defendants have absolutely no defence and therefore, he is not entitled to leave to defend. 7 The learned counsel appearing for the Defendants submitted that the invoices dated 27 th July, 2007 on which the claim is based, were allegedly issued after service of notice dated 9 th June, 2007. He submitted that in the said notice, reliance was placed by the Plaintiffs on bills and delivery challans and therefore, by reply sent by the Defendants, particulars were demanded. He pointed out that for the goods allegedly sold and delivered in February, 2007, invoices were raised on 27 th July, 2007. He pointed out that on some of the delivery challans, which are annexed to the plaint, receiver’s signature is not appearing. He submitted 5 54 sj.162.09 that receipt of goods under the alleged delivery challans has been specifically denied by the Defendants. He submitted that there is a serious dispute regarding the delivery of the alleged goods. He therefore, submitted that the Defendants are entitled to unconditional leave. 8 I have given careful consideration to the submissions. The first notice of demand was issued by the Plaintiffs on 9 th June, 2007. In the first paragraph of the said notice, reliance was placed on various bills and delivery challans for the total amount of Rs.5,75,220/-. It was specifically alleged in the same paragraph that the Defendants accepted the bills, delivery challans and the goods. It was alleged in the said notice that out of total amount of Rs.5,75,220/- payable by the Defendants, a sum of Rs.4,00,000/- was paid by the Defendants and therefore, a demand was made for payment of balance amount of Rs. 1,75,220/-. There was a reply dated 15 th June, 2007 sent by the Defendants containing complete denial. In paragraph No.4 of the said reply, the Defendants stated thus: “4. That for the sake of brevity, even if, it found to be true that the dues are pending we hereby submit that you may accordingly assist and direct to your client to send consignment note, accounts, delivery, location, purchase order no., vouchers etc. disclosing the actual time period of dues so that it can be ascertained properly.” There is nothing on record to show that the aforesaid requisition was complied with by the Plaintiffs. 6 54 sj.162.09 9 In the second notice dated 28 th September, 2007 on which the suit is based, it was contended that in the earlier notice dated 9 th June, 2007, the total price of the goods sold and delivered was stated as Rs.5,75,220/-. It was contended that the said amount was taken from the delivery challans, which did not include 12.5% Vat as applicable. Therefore, a demand was made for balance amount of Rs.2,47,124/-. 10 It is true that there is no reply sent to the notice dated 28 th September, 2007. However, the fact remains that even according to the case of the Plaintiffs, when the first notice dated 9 th June, 2007 was issued, invoices were not raised by the Plaintiffs. The invoices have been allegedly issued on 27 th July, 2007 on the basis of various delivery challans for the period between 29 th January, 2007 to 16 th March, 2007. In the first notice, there is a reference to the bills when the same were not in existence. In the second notice dated 28 th September, 2009, there is no specific reference to both the invoices dated 27 th July, 2007 and it is contended that in the earlier notice, 12.5% vat amount was not shown. It is merely stated in paragraph No.2 of the notice that the bills for the transaction were not sent to the Defendants and that the same were being forwarded alongwith the said second notice. It is not the case make out in the plaint that the invoiceS dated 27 th July, 2007 were served to the Defendants prior to the service of the second notice. 7 54 sj.162.09 11 Perusal of the photocopies of the alleged delivery challans annexed to the plaint shows that on various delivery challans at Exhibits – B, E, G and L receiver’s signature do not appear. In response to the first notice, the Defendants had called upon the Plaintiffs to send consignment notes, accounts, delivery, location, purchase order number, vouchers etc. disclosing the actual time period of dues. There does not appear any compliance made with the said requisition. In paragraph No. 5 of the plaint, it is alleged that Plaintiffs’ representative Mr. Manoj Pravin Gala addressed letters to the Defendants calling upon the Defendants to pay the balance amount. Copies of the said letters have not been produced. As pointed out earlier, on the basis of the alleged delivery challans for the period between January, 2007 to March, 2007, the invoices were issued belatedly on 27 th July, 2007, which were served alongwith the notice of demand. It is true that payment of a sum of Rs. 4,00,000/- by the Defendants to the Plaintiffs is admitted. However, some the delivery challans do not bear any signature of the receiver of goods. The said delivery challans are in respect of the goods having substantial value. 12 The Defendants has paid sum of Rs.4,00,000/-. There is a serious dispute about delivery of the goods as per the delivery challans relied upon by the Plaintiffs. The facts pleaded in the reply filed to the summons for judgment lead to the inference that at the trial, the Defendants may have a defence to the alleged claim of the Plaintiffs. In 8 54 sj.162.09 the circumstances, in view of what is held by the Apex Court in paragraph No.8 of its decision in the case of M/s. Mechelec Engineers & Manufacturers Vs. M/s. Basic Equipment Corporation, [(1976) 4 Supreme Court Cases 687], the Defendants will be entitled to unconditional leave to defend the suit. 13 Hence, summons for judgment is disposed of by granting unconditional leave to the Defendants to contest the suit. The written statement shall be filed in 12 weeks. Thereafter, the suit shall be transfered to the list of commercial causes. [ A.S.OKA, J ]