1 App1144.10 Kambli IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.1144 OF 2010 IN SUMMONS FOR JUDGMENT NO.349 OF 2008 IN SUMMARY SUIT NO.2607 OF 2008 ... M/s.Koparan Limited ...Petitioner v/s. M/s.Nipa Offset Printers ...Respondents ... Mr.Snehal Shah i/b M/s.Arvind Rathod & Co. for the Petitioner. Mr.Sunil Mogre for Respondents. ... CORAM: D.K.Deshmukh & Anoop V. Mohta, JJ DATED: 2nd May, 2011 P.C.: 1. By this appeal the original Defendant in summary Suit No.2607 of 2008 challenges the order dated 28th September,2010 passed by the learned single Judge of this court in Summons for Judgment No.349 of 2008. Summary Suit No.2607 of 2008 was filed by the Respondent/Plaintiff for a money decree in the amount of Rs.22,77,006/- with interest at the rate of 24% p.a. According to averments in the plaint, 2 App1144.10 goods worth Rs.22,77,006/- were supplied by the Plaintiff to the Defendant against challan during the period from 22nd August, 2005 to 16th June, 2006. The Plaintiff also claimed in the plaint that against challan No.121 dated 13-6-2005 and Challan No.273 , goods worth Rs.55,420/- and Rs,55,900/- were supplied by the Plaintiff to the Defendant. It was claimed that though there was no complaint from the Defendant in relation to the goods that were supplied during the period from 22nd August, 2005 to 16th June, 2006, so far as goods supplied against Challan No.121 and 273, referred to in paragraphs 2 & 3 of the plaint are concerned, there was complaint about those goods and the Defendant had on 24th July, 2007 served a debit note in the amount of Rs. 51,00,000/- on the Plaintiff. This amount was claimed by the Defendant from the Plaintiff as compensation for the loss suffered by the Defendant because of supply of defective goods under Challan nos. 121 and 273. It was also claimed that the Plaintiff had informed the Defendant that the Defendant cannot claim Rs.51,00,000/- from the Plaintiff, at the most the Defendant need not pay the price of the goods 3 App1144.10 supplied under Challan Nos. 121 and 273 i.e. the amount of Rs.1,11,381/-. 2. The Defendant, on being served with the summons for judgment, appeared and claimed that nothing is payable by the Defendant to the Plaintiff. On the contrary, the Defendant has to recover the amount from the Plaintiff. The Defendant claimed that the Plaintiff had admitted that the goods supplied under Challan Nos. 121 and 273 are defective and the Plaintiff has not denied that loss suffered by the Defendant is in the amount of Rs.51 lacs. The learned single Judge decided the summons for judgment by order dated 28-9-2010 and granted conditional leave to defend the suit to the Defendant. 3. We have heard the learned Counsel for both sides in detail. We find that the order of the learned single Judge suffers from non-application of mind. In the order the learned single Judge refers to supply of defective goods under challan Nos.121 and 273 as defence put up by the 4 App1144.10 Defendant. When it is clear from the record that these facts were disclosed by the Plaintiff in the plaint itself. Perusal of the record shows that from the correspondence between the parties, it is clear that the Plaintiff admitted that the goods supplied under Challan Nos.121 and 273 were defective and the Plaintiff did not claim that the Defendant has not suffered loss of Rs.51 lacs because of supply of defective goods by the Plaintiff to the Defendant. The only defence of the Plaintiff was that the Plaintiff is a small scale unit and therefore an amount of Rs.51 lacs cannot be claimed from it. 4. The learned Counsel appearing for the Defendant invited out attention to the notice dated 14-2-2008 given by the Defendant to the Plaintiff and the reply dated 5th March, 2008. 5. Perusal of those documents shows that by notice dated 14-2-2008 the Defendant was claiming that the goods supplied under the aforesaid two challans were defective and therefore the Defendant has suffered loss of Rs.51 lacs, 5 App1144.10 which he is entitled to recover from the Plaintiff. The Plaintiff replied that notice. His reply is dated 5th March, 2008 and in this reply the Plaintiff denied that the goods supplied under the aforesaid two challans were defective. But in the reply, the Plaintiff no where disputes that the Defendant has suffered loss to the tune of Rs.51 lacs because of supply of defective goods. So far as defence of the Plaintiff that the goods supplied by him were not defective is concerned, though that claim is made in the reply, perusal of the correspondence between the parties shows that the Plaintiff admitted that the goods supplied under the aforesaid two challans were defective. 6. It is, thus, clear from the record that the Defendant definitely had a case for claiming set off or making a counter claim against the Plaintiff, and therefore, in our opinion, it was a fit case where unconditional leave to defend should have been given by the learned single Judge. The learned single Judge, however, merely finding that the goods that were supplied during the period from 22nd August, 2005 to 16th 6 App1144.10 June, 2006 were not defective held that condition of deposit of entire price of those goods has to be imposed. In our opinion, in the facts and circumstances of the case and considering the jurisdiction of the court in granting leave to defend, the learned single Judge should have granted unconditional leave to the Defendant to defend the suit. In our opinion, therefore, following order would meet the ends of justice. O R D E R (i) The order impugned in the appeal is set aside. (ii) Summons for Judgment No.349 of 2008 in Summary Suit No.2607 of 2008 is disposed of. Defendant is granted unconditional leave to defend the suit. Written statement to be filed within a period of six weeks. (D.K.DESHMUKH, J.) (ANOOP V.MOHTA, J.)