1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO. 181 of 2008 IN SUMMARY SUIT NO. 873 of 2008 M/s.Daman Metalic Oxides & Anr. .. Plaintiffs versus M/s.Chembond Chemicals Ltd. .. Defendant ... Mr.Prakash P. Parkar for the plaintiff. Mr.E.K.Sasidharan for the defendant. CORAM : D.G. KARNIK, J DATED : 30th March 2009 P.C.: 1. Heard both sides. 2. This Summons for Judgement is taken out by the plaintiffs in Summary Suit no.873 of 2008 filed for recovery of the price of the goods. The 2 defendant has contested the Summons for Judgement and has prayed for unconditional leave to defend the suit. 3. As per the orders of the defendant, the plaintiffs supplied goods (Zinc-Oxide and Zinc Hydro-oxide) to the defendant company. The plaintiffs also sent invoices to the defendant along with the supplies. There is no dispute between the parties that the defendant received the goods and invoices. According to the defendant, the goods supplied were defective and hence the defendant is not liable to pay the suit amount. The plaintiffs had agreed that the lead content in the goods would be less than 50 ppm (parts per million). However according to the defendant, lead content in the goods supplied was far more than 50 ppm and therefore, the plaintiffs sent to the defendant debit note deducting Rs.30/- per kg out of the price of Rs.192/- per kg. On account of the defective goods, the defendant claims it is entitled to reduction in the price. 4. According to the plaintiffs, there was no defect in the goods and only to avoid payment the defendant has not raised a false defence regarding the quality. In support, counsel for the plaintiffs 3 invited my attention to Exhibit-B to the plaint being copy of a letter written by the defendant to the plaintiff for confirmation of the balance. In the said confirmation of account, the defendant has admitted the receipt of the goods and has also admitted the amount due sans any deduction for the alleged defects. The plaintiff accepted this statement account and confirmed the balance informed by the defendant. Counsel for the plaintiff submitted that the supplies were made between 19th October 2006 and 2nd December 2006 as stated in the said letter. The balance confirmation letter was written on 1st January 2007 by the plaintiff i.e. long after the supplies made by the plaintiff. If there were any defects in the goods, the defendant would not have sent such balance confirmation letter but would have immediately written to the plaintiff about the alleged defect in the goods. It is only after the plaintiff started demanding the price that the defendant has falsely raised the defence regarding the quality of the goods. 5. In my view, submission of the plaintiff needs to be accepted. Though the supplies were made as far back as 19th October 2006, no grievance regarding the quality was ever raised by the defendant till 31st January 2007. i.e. for a 4 period of more than three months. Further more, the defendant itself asked the plaintiff to confirm the balance vide its letter dated 1st January 2007 without contending that there was any defect in the goods. 6. Section 42 of the Sale of Goods Act provides that the buyer is deemed to have accepted the goods when he intimates to the seller that he accepted the goods or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller or when after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. In the present case, no intimation was ever sent by the defendant to the plaintiff about the rejection of the goods within a reasonable time. In fact, the case of the defendant is that it has used the goods as raw material for his final product. It came to know of the defects only after purchasers of the final product manufactured by the defendant made complaints about the quality of its final product. There can be several reasons for the purchaser of the final product to complain about the quality of the final product made by the defendant. May be, the defendant itself was at fault. There is nothing on 5 record to show that the complaints made by the purchasers of the defendant’s final product are definitely attributable to the quality of the goods supplied by the plaintiffs. 7. In the circumstances, in my view, the defendant cannot be granted unconditional leave to defend the suit. Only by a concession, I am inclined to grant conditional leave to defend the suit to the defendant. As regards the conditions, it may be noted that the principal amount claimed by the plaintiff is Rs.9.59,997/- and the rest of the claim is in respect of the interest. Hence I pass the following order:- O R D E R . The defendant is granted conditional leave to defend the suit subject to its depositing in the court a sum of Rs.9,59,997/- within a period of eight weeks. The defendant shall file written statement within 12 weeks from today. On deposit of money the suit shall then stand transferred to the list of commercial causes. . In the event of failure to deposit the amount as aforesaid within a period of eight weeks, 6 the plaintiffs shall have liberty to apply. (D.G. KARNIK, J)