*1* sj.441.09 kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.441 OF 2009 IN SUMMARY SUIT NO.1311 OF 2009 Rajesh K. Tripathi. Prop. of M/s Shree Ganesh. ..Plaintiff -Versus- Jayesh Shah. Prop. of New Age Cable Industries. ..Defendant .......... Mahesh Devani i/b R.J.Dave, for the Plaintiff. Betty D’Souza and Brenda D’Souza, for the Defendant. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 01st December, 2010. P.C. 1 Heard the learned counsel for the Plaintiff and the Defendant. Perused the plaint and annexures thereto including the information supplied to the Plaintiff under the Right to Information Act, 2005. 2 Mr.Devani, learned counsel for the Plaintiff, submits that the claim in the suit arises under the written contract as evidenced by the purchase order, delivery challen and invoices under which the goods have been supplied, delivered and sold to the Defendant. Mr.Devani submits that the false plea is raised that the goods under some of the invoices were never received. He also submits that for one invoice the defence is that the goods were rejected but there is no rejection on record and even the goods are not returned. Mr.Devani relies upon the letter dated 11.10.2007 issued by the Central Public Information Officer, Central Excise, Thane-II Commissionerate and particularly the information with *2* sj.441.09 regard to the availment of Cenvat Credit in respect of these invoices which are the subject matter of the suit. From this information it is clear that the Cenvat Credit was availed and had not the goods been received there was no question of availing of this facility. 3 I am afraid that the information provided to the Plaintiff under the Right to Information Act, 2005 by itself will not be of any assistance for holding that the goods have been received by the Defendant. This piece of information under the Right to Information Act, 2005, whether, will displace the requirement of the Plaintiff of proving the claim by demonstrating that the goods were delivered and received by the Defendant; itself raises a triable issue. 4 In such circumstances, the Defendant is granted unconditional leave to defend the suit. The suit is transferred to the list of commercial causes. The Written Statement to be filed within eight weeks. The Summons for Judgment is, accordingly, disposed of. In the peculiar circumstances of this case, the hearing of suit is expedited. (S.C. Dharmadhikari, J)