1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 206 OF 2008 IN SUMMARY SUIT NO. 65 OF 2007 Rainbow Plastics Industries ...Plaintiff. V/s. Flex Art Foils Pvt.Ltd. ...Defendant. --- Mr. K.D. Shah, for the Plaintiff. Mr. Cyrus Ardeshir i/b M/s Kanga & Co., for the Defendant. ---- CORAM : S.J. VAZIFDAR, J. DATED : 17TH AUGUST, 2009. P.C. :- 1. The suit is filed to recover the price of the goods sold and delivered by the Plaintiff to the Defendant. That the goods were delivered by the Plaintiff to the Defendant as per the terms and conditions contained in the suit invoices is not denied. The only defence is that the goods were defective. The defence is without any substance. 2. The goods were sold in June 2004. No dispute regarding the quality thereof was raised. The payments not having been made, the Plaintiffs by their Advocate’s notice dated 2 21.06.2006 demanded payment. There is no reply to this notice. Despite the fact that there was adequate time to do so as the suit was lodged only on 29.12.2006. What is important to note is that the Defendant admitted used the goods and did not offer to reurn the same. 3 It is alleged in the affidavit-in-reply that the Defendant had informed the Plaintiff regarding the alleged defects. I am not inclined to accept the same especially in view of the fact that not once during the two years before the suit was filed did the Defendant place the grievance on record despite an advocate’s notice demanding payment. 4. To this it was contended that the goods in turn return were sold by the Defendant to another company viz. Arovindo Pharma Ltd. who had addressed an email dated 1.09.2004 alleging the defects. The email is introduced as an exhibit to an additional affidavit in which was objected by Mr. Shah, the learned counsel appearing on behalf of the Plaintiff. However, I accepted the same as it did not in any event support the Defendant’s case. I therefore also did not permit the Plaintiff to file a reply thereto. 5. Firstly, the email though written on 1.09.2004 was not forwarded by the Defendant to the Plaintiff. This establishes in fact that the Defendant itself did not allege any defects in the goods but merely relied upon the allegations in this regard by a third party. 3 6. Since the defence is raised after almost five years it cannot be relied upon at all. In the circumstances, there is no defence to the suit. 7. The Summons for Judgment is therefore made absolute and the suit is decreed as prayed. However, interest shall be at the rate of 12% p.a. Refund as per rules. 1.