1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.306 OF 2008 IN SUMMARY SUIT NO.2241 OF 2008 Chetan V. Parekh …Plaintiff Vs. Cil Textiles Pvt. Ltd. …Defendant Mr. Ditendra Mishra for Plaintiff Ms. Shoma Mitra i/b. Desai Desai Carrimjee & Mulla for Defendant CORAM: SMT. ROSHAN DALVI, J. DATED: 8TH APRIL, 2009 P.C. 1. This Summons for Judgment is filed under 3 written contracts between the parties evidenced by the 3 invoices signed by the Plaintiff and the 3 delivery challans signed by the Defendant. The Plaintiff has dispatched Titanium Dioxide under invoices dated 22nd January 2008, 31st December 2007 and 25th December 2007. These are received by the Defendant on 24th January 2008, 31st December 2007 and 25th December 2007 respectively. The goods mentioned 2 in the invoice as well as described in the delivery challans accepted by the Defendant are Titanium Dioxide. Under the written contracts between the parties evidenced by the invoices signed by the Plaintiff and delivery challans signed by the Defendant, the amount mentioned in the invoices would be due and payable by the Defendant as liquidated amount for which the Summons for Judgment is filed. 2. The Defendant has not paid any amount since 2007 when the first batch of the goods were dispatched. 3. The Plaintiff sent the legal notices and certain E-mails. In reply thereto the Defendant in April, 2007 contended that the “goods were not of the quality and quantity contracted. It claimed that the goods were adulterated. The goods have been accepted and not returned. 4. In the affidavit in reply the Defendant has relied upon an E-mail of the Plaintiff dated 11th March 2008 in which the Defendant claims that the Plaintiff has admitted the adulteration. The contention is incorrect. The letter shows that upon checking “there is not at all any adulteration in the material”. However, the Plaintiff has fairly conceded that some small particles have been traced which are due to 3 moisturisation and for which the Plaintiff has offered to pay the Defendant grinding costs suffered by the Defendant, which would be covered in the Plaintiff’s further supply. The Plaintiff has stated that the Defendant has consumed the materials and hence, thereafter they cannot complain of adulteration and not make any payment. 5. In the Defendant's letter dated 1st April 2008 in reply thereto the Defendant contended that the particles have been mixed in the other chemicals and called upon the Plaintiff to solve the same before the Defendant clears the dues. 6. Much later on 15th April 2008 the Defendant contended in the affidavit in reply that the Plaintiff was to supply goods of a particular description being “HUNTS MAN EOU TR-92 pure Grade”. If the goods of a particular description were ordered and were to be supplied the Defendant should not have accepted the goods by signing the delivery challans unless the goods were of the description mentioned. 7. The Defendant has not only accepted the goods but consumed the goods. It is only after the Plaintiff's E-mails and notices that the Defendant has alleged adulteration of 4 the goods and that the goods of the particular description were not supplied. The Defendant claims that they have a counter claim against the Plaintiff, which is yet not filed. 8. In the affidavit in reply the Defendant has stated that the goods have been wasted because the chemicals supplied by the Plaintiff was used by the Defendant as it could not be supplied to other buyers. 9. The Advocate for the Defendant argued that the Defendant has received claims of the buyers of the Defendant’s material. That would show that the sale of the goods supplied using the Plaintiff’s chemicals to 3rd parties. 10. The Defendant has offered to have the goods tested independently. The contentions as well as the offer are far too belated. For the goods received in the year 2007 an offer to have goods tested cannot be made in the affidavit filed in 2008. The Defendant’s defence cannot be accepted as made. The Plaintiff has claimed the amounts shown under the aforesaid 3 invoices for the goods accepted, kept and used by the Defendant. The claim of the Plaintiff under 3 invoices is shown to be Rs.31,16,724.50. The Plaintiff has claimed interest only from the date of the filing of the suit until 5 realization. Suit is, therefore, filed only for the principal amount, though the principal amount. 11. Upon the Defendant depositing in Court Rs.25,00,000/- within 8 weeks from today leave is granted to the Defendant. After deposit Defendant shall be entitled to file the written statement within 30 days of the deposit. 12. Summons for Judgment is disposed of accordingly. (Smt. Roshan Dalvi, J.)