*1* sj.292.09.ss.956.09.904.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.292 OF 2009 IN SUMMARY SUIT NO.956 OF 2009 Mahesh Shantilal Parekh. ..Plaintiff -versus- Super Seals Industries. ..Defendant ............ Mr.Shailesh Shah i/by Pandya Gandhi & Company, for the Plaintiff. Mr.M.P.Jagani, for the Defendant. ............ CORAM : S.C.DHARMADHIKARI, J. Date : 12th December, 2011. P.C.: 1 This Summary Suit is filed invoking Order XXXVII of the Code of Civil Procedure, 1908 on the basis of the written contract evidenced by the purchase order, delivery challan and invoices under which it is the case of the Plaintiff that the goods worth Rs.5,40,800/- were forwarded. The goods have been received and accepted without any demur, objection or complaint as to their quality and quantity. Even the invoices have been accepted without any protest. The goods have been utilized for the purpose of manufacturing activities. It is stated that there is a fax message dated 01.11.2006 which has been received by the Plaintiff from the Defendant duly acknowledging the receipt of goods and confirming as well that a sum of Rs.5,40,800/- is due and payable by the Defendant to the Plaintiff. The Plaintiff by letter dated 14.04.2007 informed the Defendant that the amount is overdue for more than 90 days, therefore, the same be remitted. The reply was given to the said letter on *2* sj.292.09.ss.956.09.904.sxw 25.04.2007 stating therein that there are no outstanding dues payable. In such circumstances, the Advocate's notice was sent and the suit has been instituted for recovery of the sum together with interest as per particulars of the claim. 2 It is stated that the suit claim is within limitation and the Defendants are carrying on business within territorial limits of this Court. For all these reasons, it is submitted that the Plaintiff has rightly invoked Order XXXVII of the Code of Civil Procedure, 1908 and the Vakalatnama is filed on behalf of the Defendant only with a view to delay passing of a decree in this Summary Suit. 3 Upon appearance being entered after writ of summons was received by the Defendant, this Summons for Judgment has been filed seeking decree in the sum of Rs.5,40,800/- together with interest and in reply thereto, the Defendant seeks leave to defend the Suit. What has been stated in the reply is that the suit suffers from gross delay and latches and that is the plea raised in paragraph 5 of the Affidavit in Reply. The second defence is that the invoices have been signed by the Karta of M/s Shreeji Trade Corporation whereas the suit is filed in the name of Mahesh Shantilal Parekh claiming to be sole proprietor of the said M/s Shreeji Trade Corporation. Thus, the suit is filed in the name of wrong Plaintiff. Thirdly, it is stated that the factory of Defendant is at Vasai and the goods have been dispatched from Bhiwandi to Vasai and no cause of action has arisen within the territorial jurisdiction of this Court. In any event if some part of cause of action has arisen, then, this Court would have jurisdiction only if leave under clause XII of the Letters Patent is granted. No such leave has been obtained, therefore, this Court lacks territorial jurisdiction to entertain and try the suit. The defence then raised in paragraph 15 and what is vehemently pressed is that the modus- *3* sj.292.09.ss.956.09.904.sxw operandi of the Plaintiff is that without any order but on account of business relation the goods were regularly dumped with the Defendant which have been shown as sold, supplied and delivered and as and when the price of goods is increased in the market, the Plaintiff collected the said goods. Therefore, there was no transaction under which any claim much less recovery of various amounts can be made. What has been argued is that the alleged goods were also dumped and the Defendant intimated about the same to the Plaintiff and requested them to take back the same as early as possible, but, they were not taken back. However, after seven months the claim for recovery has been made. In these circumstances, there is no such question of the Defendant having defaulted in payment of sums under the invoices. Reference is made to the Defendant's sister concerns which regularly placed the orders with the Plaintiff for goods and which goods were supplied and as per the market norms the payment has been made. Even with regard to certain goods where the Defendant required them, they made payment to the Plaintiff and the details of the same are set out in the statement of account and reference is made to the Debit Note. 4 At the same time, what has been stated in this reply is that the goods under the subject invoice are defective and the Plaintiff has failed to collect defective goods supplied against the suit invoice of Rs. 5,40,800/-. Reliance is placed on letter dated 27.02.2007 in this behalf. 5 In the rejoinder of the Plaintiff, the Plaintiff has clarified that both defences, namely, technical defence with regard to institution of the suit and jurisdiction of this Court, are purely an afterthought. As far as the merits are concerned, it is apparent that the defence raised is contradictory and inconsistent. If there is no question of genuine sale or purchase transaction and the goods were allegedly dumped with the *4* sj.292.09.ss.956.09.904.sxw Defendant, then, there is no requirement of pleading that the goods which have been dumped are defective material and therefore, no amount is payable. In paragraph 17 of the affidavit in rejoinder, what has been stated is that the goods have been supplied under the invoices and at no stage there was any complaint made with regard to the goods being defective or that they were not required or dumped. In fact it has been stated that the letter dated 06.03.2007 and the Debit Note of that date has not been received at all. 6 In sur-rejoinder, what has been stated in the reply is more or less reiterated. There is reference made to certain correspondence between the Advocates, but, to my mind, that is not relevant at this stage. 7 It is on this material that I have heard Mr.Shah, learned counsel appearing for the Plaintiff and Mr.Jagani, learned counsel appearing for the Defendant. To my mind, there is no substance in the defence raised that this Court lacks territorial jurisdiction to entertain and try the suit. The suit has been filed by the Plaintiff against the Defendant on the basis that the Defendant carries on business from Borivali (East), Mumbai. This is a address which has been confirmed by the Defendant and even in communication dated 25.04.2007 which has been addressed by the Defendant to the Plaintiff, what has been shown therein and in block letters is that the Registered Office of the Defendant is at 103, Blue Rose Industrial Estate, Western Express Highway, Above Maruti Showroom, Borivali (East), Mumbai, 400066 . When there is no denial that the registered office is so located and the Defendant is carrying on business therefrom, then, there was no requirement of obtaining leave under clause XII of the Letters Patent. It may have been claimed that the goods have been supplied from Bhivandi to Vasai in Thane district, but correspondence indicates that the Plaintiff has dispatched the invoices *5* sj.292.09.ss.956.09.904.sxw from Mumbai office and they have been received at the registered office of the Defendant and the correspondence between the parties is from the Defendant's registered office and even payment was claimed and was sought to be made at Mumbai, then, the plea that this Court lacks territorial jurisdiction is without any basis. 8 Equally, untenable is the plea that the suit is filed in the name of wrong Plaintiff. The Defendant has corresponded with the Plaintiff Mahesh Parekh as being associated with M/s Shreeji Trade Corporation. By mere signing of one of invoices by Mahesh Parekh as Karta, would not mean that the Plaintiff and the said M/s Shreeji Trade Corporation are distinct concerns or that the Plaintiff is not sole proprietor of the same. Something more is required to be placed on record to establish and prove this allegation and mere denial in the affidavit in reply is not sufficient. 9 As far as merits are concerned, there is clear inconsistency in the stand of the Defendant. The Defendant does not deny that the statement of outstanding from 01.04.2006 to 31.03.2007 was dispatched. In this statement which is stated to have been issued under the fax message dated 01.11.2006, there is reference to the Bill No.STC/10 which is the suit invoice. The date of the bill is also 26.07.2006. It is very clearly mentioned therein that the sum which is claimed under this bill is Rs. 5,40,800/- and this amount is due and payable in the books of the Defendant. Thus, once the suit is filed on the basis of the written contract as evidenced by the purchase orders, delivery challans, invoices together with acknowledgment of liability, then, the Defendant was required to show that there is no such acknowledgment or admission as claimed. Pertinently, there is no denial of this statement. It is when the reminder has been issued on the basis of this statement and the Defendant was called upon to remit the sum under the invoice by letter dated *6* sj.292.09.ss.956.09.904.sxw 14.04.2007, that on 25.04.2007, the Defendant responds and says that there is no outstanding whatsoever as on 31.03.2007 and this was brought to the notice of the Plaintiff earlier. Thereafter, the correspondence with the Advocate commenced. If indeed the goods were dumped and there was no genuine sale transaction, then, what was the occasion for signing the statement dated 01.11.2006 and why there is contradiction in the defence, is not explained at all. If unordered goods have been dumped with the Defendant and the goods which are subject matter of the present suit were not as per the requirement of the Defendant and were returned back to the Plaintiff, then, it was necessary for the Defendant to show as to which other goods have been purchased and how the goods under the suit claim were never purchased. At the same time, stating that by letter dated 06.03.2007 the goods which were purchased have been returned together with Debit Note, fortifies and supports my conclusion that the Defendant has come out with inconsistent and contradictory defence. It is not explained as to how the statement dated 01.11.2006 and earlier response dated 25.04.2007 does not mention all these facts. 10 In these circumstances that I am of the opinion that this is not a case where the Defendant is entitled to unconditional leave to defend the suit. On the other hand, the Plaintiff has made out a case where the Defendant has made default in payment for the goods which it ordered, supplied and received and that has been confirmed by the Defendant in their statement of account and that statement of account is reflected in the books maintained by the Defendant in their ordinary and regular course of business. 11 In such circumstances, the Defendant is not entitled to unconditional leave to defend. Therefore, on the Defendant depositing in *7* sj.292.09.ss.956.09.904.sxw this Court the principal sum of Rs.5,40,800/- within twelve weeks from today, the suit shall be transferred to the list of commercial causes and the Written Statement be filed within eight weeks from the date of such deposit. Discovery and inspection be also completed within this period. 12 Needless to state that in the event of default in depositing the amount within the time stipulated by this Court, the suit shall be decreed in favour of the Plaintiff and against the Defendant. 13 The Summons for Judgment is, accordingly, disposed of. No costs. (S.C. Dharmadhikari, J)