1 SJ.355/2009 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.355 OF 2009 IN SUMMARY SUIT NO. 1948 OF 2009 R. Parthasarathy .Plaintiff. Vs. National Collateral Management Services Ltd. ..Defendant. ---- Mr. D.D. Madon, Senior Counsel i/b G.A. Tambe, for the Plaintiff. Mr. Nitin Thakkar, Senior Advocate with Mr. Berjis Colabawala and Mr. Rajesh Talekar i/b M/s K. Ashar & Co., for the Defendant. --- CORAM: S.C. DHARMADHIKARI, J. DATED : 13th SEPTEMBER, 2010. P.C. 1] This Summons for Judgment has been filed by the plaintiff against the defendant for a recovery of sum of Rs.2,38,41,126/- as per particulars of claim at Exhibit ‘B’ to the plaint together with further interest on principal sum. 2] The suit is filed as a Summary Suit on the basis that there is a written contract between the parties, a copy of which is at Exhibit ‘A’ to the plaint. By the written agreement dated 21.8.2007, the defendant had agreed to sell to the plaintiff the entire lots of rice as described in the said 2 SJ.355/2009 agreement and in particular the terms and conditions therein. It is stated that there was a letter of understanding preceding this agreement, therefore the plaintif has paid to the defendant a sum of Rs.50.00 Lacs on 8.8.2007, and the further sum of Rs.64.00 Lacs on 18.8.2007 making in all Rs.1.14 Crores. 3] Thereafter, during the agreement and its subsistance several sums were paid in addition to the Earnest Money amount. It is stated that the goods were sold, necessary documents including delivery note was issued and during the process of lifting of one consignment that the Collector of District Puducherry seized the stock. There were proceedings before him and while parties were charged with offences punishable under the Essential Commodities Act and Indian Penal Code, the Collector decided that the goods should be released to the public through public distribution system. In the proceedings before the Collector, the plaintiff gave the written representation which is in the following terms:- “The rice was being sold by ICICI, through NCMSL, as a part of its liquidation of pledged stock. Also, as a part of the entire transaction, ICICI Bank had agreed with NCMSL that it would secure all the necessary approvals for movement of the rice for delivery of the rice to us. “In view of the above PRS Traders has no objection if the application filed by M/s ICICI Bank Ltd. is allowed and 3 SJ.355/2009 the rice is released. PRS Traders, upon release of rice, would endeavor to fulfill its lawful obligations under the existing agreements.” 4] It is relying on this representation and the further documents that it is contended by the defendant that the suit is not maintainable as a Summary Suit and secondly, in any event triable issues arise on account of the fact that the plaintiff admits that the sale is not by the defendant but by the ICICI Bank Ltd. It is urged that the representation in writing would falsify the claim of the plaintiff. 5] I have heard Shri Madon, learned Senior Counsel appearing on behalf of the plaintiff and Shri Thakkar, learned Senior Counsel appearing on behalf of the defendant. 6] With their assistance, I have perused the plaint and agreement in question. While the agreement speaks of lifting of rice and the names of the parties therein are the plaintiff and defendant, yet, in the plaint itself the plaintiff has averred in para 3 that they agreed to purchase from the defendant large quantity of rice on the representation of the defendant that it had acquired the rights from ICICI Bank Ltd. for sale of the said rice stored at two designated Warehouses at Puducherry. If this was a case of direct sale between the plaintiff and the defendant and there were no intervening rights of any third party including ICICI Bank Ltd., then there 4 SJ.355/2009 was no occasion for the plaintiff to aver and allege on this basis. Further, the written representation is something which cannot be ignored by the plaintiff as that is a document coming from himself. 7] Therefore, there is substance in the contentions of the defendant that contrary to the terms of the agreement, it is the plaintiff’s own case that the defendant was to procure the rights of sale from ICICI Bank Ltd. Therefore, the intervention and the rights of ICICI Bank Ltd is something which would be required to be gone into at Trial. Further, whether the rights have been conferred under the agreement only on the basis of the ex-warehouse price as stated in the payment terms or otherwise the title did not pass on that basis is also an issue which can only be gone into at Trial. In the light of the triable issue raised, there will be Unconditional Leave to defend. Accordingly, Unconditional Leave is granted to defend. The suit is transferred to the list of Commercial Causes. Defendant to comply with usual directions such as filing of Written Statement, Discovery and Inspection. 8] The Summons for Judgment stands disposed of accordingly. [S.C. DHARMADHIKARI, J.]