IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 327 OF 2007 IN SUMMARY SUIT NO. 1262 OF 2005 Virendra Ahuja .. Plaintiff V/s M/s Sunny Super Sounds Pvt. Ltd. .. Defendants Mr.H.N. Thakore i/b Thakore Jariwala & Associates for the Plaintiff. Mr.H. Mehta i/b Malvi Ranchoddas & Co. for the Defendants. CORAM : S.J, VAZIFDAR, J. DATE : 8TH SEPTEMBER 2008 P.C.: 1. The suit is filed to recover a sum of Rs.76,58,171/- together with interest at 18% per annum from the date of the filing of the suit till payment. 2. The Plaintiff had admittedly supplied to the Defendants on hire wooden planks for their sets at various locations. Some of the wooden planks were returned and some were not. Further, some of the planks were returned in a damaged condition. 3. The Plaintiff raised bills from time to time - 2 - claiming the hire charges, damages on account of the Defendants having failed to return certain wooden planks as well as for having returned certain wooden planks in a damaged condition. 4. The summary suit is maintainable only in respect of the claim for hire charges. It is not maintainable in respect of the claim for damages on account of the Defendants having failed to return the wooden planks and also on account of the Defendants having returned certain wooden planks in a damaged condition. 5. There was no dispute to the bills which had been admittedly raised and forwarded to the Defendants from time to time. There was no reply to the Plaintiff’s advocate’s notice dated 30th December 2004 demanding payment despite the suit having been filed on 1st April 2005. If the claim was false, surely the Defendants would have replied to the same. . The claim for hire charges is thus established. The wooden planks, I am satisfied, were supplied on the terms and conditions contained in and evidenced by the said bills. 6. However, from the claim in suit of - 3 - Rs.76,58,171/- must be deducted an amount of Rs.39,20,000/- and Rs.1,21,450/- aggregating to Rs.40,41,450/-. The amount of Rs.39,20,000/- is claimed on account of the Defendants having allegedly not returned the wooden planks. The amount of Rs.1,21,450/- is claimed on account of the Defendants having allegedly returned certain wooden planks in a damaged condition. 7. Thus, the hire charges claimed by the Plaintiff come to Rs.36,16,721/-. 8. Mr.Mehta submitted that the hire charges were agreed upon at Rs.6/- per week per plank and not Rs.9/- per week per plank as claimed by the Plaintiff. This contention was raised for the first time in the present proceedings. There was no protest to any of the bills which expressly claimed hire charges at Rs.9/- per week per plank. This is not even alleged in the reply. I am therefore not inclined to accept this case. Indeed, even assuming that the Defendants’ case is correct, the admitted claim at the rate of Rs.6/- per week per plank would be Rs.24,16,721/-. 9. It was then submitted that the computation in the bills was incorrect. This contention was raised on the basis of an averment in the plaint that the - 4 - bills were raised after the goods were returned, but that the dates specified in the bills are even subsequent to the bills. This contention is without any substance. Firstly, it must be noted that this contention has not been raised in the affidavit in reply. What is contended in paragraph 10 of the affidavit in reply is as follows:- "10. With reference to paragraph 4 of the Plaint, I deny that the Defendant has duly signed or accepted the Bills raised by the Plaintiff. I say that the Bills raised by the Plaintiff are false and the Plaintiff has sought to add the damage charges in the said Bills. It was never agreed between the parties that the Defendant would be liable to pay charges for damaged as well as burnt planks as added in the said Bills. It was always the responsibility of the Owners to get the planks insured against the theft, fire or any other natural calamity. The Defendant is only liable for the hiring charges of the planks for the period they were hired. I say that the said Bills were raised after the accidental fire took place on or about 1st May 2002. The summary of the Bills is false and even does not match with - 5 - the statements issued by the Plaintiff to the Defendant." (emphasis supplied) The above paragraph read as a whole makes it clear that the objection was to the Plaintiff having included in the bills the claim for damages. There was no objection as to the rate being wrongly claimed at Rs.9/- per week per wooden plank instead of Rs.6/- per week per wooden plank. 10. In the circumstances, the Summons for Judgment is made absolute and the suit is decreed in the sum of Rs.36,16,721/- with interest thereon at the rate of 12% per annum from the date of the suit till payment and/or realisation. 11. The Defendants shall be entitled to unconditional leave to defend the suit in respect of the rest of the claim. . The suit is transferred to the list of commercial causes. . The Defendants to file their written statement within four weeks from today. . Discovery and Inspection to be completed - 6 - within six weeks thereafter. . Summons for Judgment stands disposed of accordingly.