1 SJ.102/2009 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.102 OF 2009 IN SUMMARY SUIT NO. 179 OF 2009 Novartis India Ltd. ..Plaintiff. Vs. Deswal Poultry Medicos . ..Defendant. ---- Ms. Shikha Goenka i/b M.M. Legal Associates, for the Plaintiff. Mr. N.V. Moye, for the Defendant. --- CORAM: S.C. DHARMADHIKARI, J. DATED : 27 th AUGUST, 2010. P.C. Heard learned Counsel for the parties. 2] The plaintiff seeks a decree in the sum of Rs.10,38,476/- as per the particulars of claim the Exhibit- 'I' to the plaint with interest on the principal sum allegedly outstanding. 3] According to the plaintiff the suit is filed on the basis that there is a written contract between the parties as evidenced by the invoices, details of which are set out in paragraph 3 and copies of the same annexed as Exhibits 'B' to 'G' to the plaint. 4] In paragraph 4 the plaintiff states that pursuant to these invoices being raised, they were duly dispatched and received, and there is no complaint with regard to the correctness of the figures and amounts mentioned therein. 2 SJ.102/2009 There is also no dispute with regard to the quantity or and quality of the goods supplied. After accounting for the part payments, the balance sum now due and payable is of Rs.7,52,302/- and by virtue of the stipulation with regard to the interest @ 24 % p.a. the plaintiff is entitled to recover aforementioned sum with interest. 5] In the affidavit in reply filed by the defendant apart from the technical pleas, so also questioning the jurisdiction of this Court, it is stated that the instant suit is not maintainable as Summary Suit. Although, the suit may have been instituted for recovery of sum on written contract as evidenced by the invoices and delivery challans, yet, in essence the suit is to recover amounts under a running account. The plaintiff-company does not dispute that the defendant was appointed as Distributor and selling agent. The plaintiff-company had supplied goods but the understanding between parties was that the plaintiff-company would settle the claim of the Distributor with regard to cash discount, special discount, commission on direct sale etc. In that behalf, reliance is placed upon a letter dated 13.2.2006 addressed by Shri Sanjiv Suri, the National Sales Manager of the plaintiff. It is stated that said Shri Suri pointed out that the amounts due as discount would be settled. The manner in which the payments were made and the transactions went on, has been set out and thereafter in the affidavit in reply it is stated that final accounts were not made. Final 3 SJ.102/2009 accounts were not made out and plaintiff has yet to account for the payment of Rs.2,03,89,107/- which has been made on account. The last such payment was made on 6.8.2007. Therefore, the submission is that if proper accounts are taken, nothing would be due and payable. 6] In rejoinder while dealing with the statements in the affidavit in reply and the contents of the annexures/statement of accounts what has been stated by the plaintiff is that the defendant is trying to show that the matter is of accounts. The plaintiff states that without prejudice to their contentions the main plea is that the suit is based on these invoices, whereas the Exhibits-III and IV to the affidavit in reply show that the defendant is entitled for credit notes to the tune of Rs.48,83,580.67, whereas the plaintiff’s credit notes to the tune of Rs.40,16,298.40. Thereby there is difference of Rs.8,67,282/-. It is alleged that last payment was made on 6.8.2007 and assuming without admitting if these amounts were due and payable by the plaintiff to the defendant, then, such payments would not have been forthcoming. 7] With the assistance of the learned counsel appearing for the parties, I have perused the plaint and annexures thereto, and what I find is that the invoices are dated 24.2.2007, 23.3.2007, 13.4.2007, 19.4.2007, 24.4.2007, and 30.4.2007. The particulars claim show that the first invoice dated 24.02.2007 of Rs.3,84,000/- below which it is stated that part 4 SJ.102/2009 payment is received on 18.12.2007 of Rs. 91,842/- which is adjusted towards sum under this invoice. 8] On the other hand, the statements which are annexed to the affidavit in reply to the Summons for Judgment by the defendant demonstrates that from time to time payments have been made and even in the year 2007 they have made payments. The payments stated to have been made between 1.4.2007 to 31.3.2008 and prior thereto from 1.4.2006 to 31.3.2007. 9] Once these figures are taken into account together with the version of both sides, then it is apparent that the matter is of reconciliation of the accounts. The case where certain payments were made on account but not reflected in the books is a matter which makes the case resting on account and not on a written contract as contended by the plaintiff. Ultimately, the plaintiff's own version is that some payments were made in part. As to how these payments have been accounted and still there is a balance outstanding is a matter which will be gone into only after a scrutiny of the accounts and proof of relevant entries. 10] For all these reasons, this is a case where unconditional leave deserves to be granted. Accordingly, there will be a unconditional leave to the defendant to defend the suit. The suit is transferred to the Commercial 5 SJ.102/2009 Causes. Defendant to comply with usual directions with regard to filing of Written Statement, Discovery and Inspection. The Summons for Judgment is disposed of accordingly. [S.C. DHARMADHIKARI, J.]