abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 488 OF 2007 IN SUMMARY SUIT NO. 2329 OF 2007 Ms. Nina Punjabi .. Plaintiff V/s Akail Consumer Electronics India Ltd. .. Defendant Ms.P.V. Nichani for the plaintiff. Mr.Lalit V. Jain for the defendant. CORAM : D.G. KARNIK, J. DATE : 30TH JUNE 2008 P.C. P.C. P.C. : 1. The plaintiff has taken out this summons for judgment in a suit for recovery of money. 2. The defendant placed two purchase orders on the plaintiff on 9th August 2006 for supply of sports bags, Louis Reneee wrist watches and wall clocks which the defendant wanted to gift to its customers. The plaintiff delivered the goods to the defendant valued at Rs.8,65,920/-. The plaintiff did not deliver the balance goods as the payment for the first delivery was - 2 - not made. As the defendant failed and neglected to pay for the goods received, the plaintiff filed this suit for recovery of its dues. 3. There is no dispute between the parties that the goods worth Rs.8,64,768/- were delivered by the plaintiff to the defendant. In para 9 of the reply to the suit notice, the defendant has stated:- "9. My client states and needless to add that right from inception you were irregular in delivery of the said goods. My client from time to time repeatedly requested you to delivery the goods so that the same could be delivered to its dealer in the market and ultimately to the customers. However for the reason best known to you, you delivered only 12240 Quantity of Sports Bag and 2716 Quantity of Clock both amounting to Rs.8,64,768/- and failed and neglected to deliver the pair of Wrist Watch with key chain with the brand name Louis Renee." The defendant has thus admitted receipt of the goods to the extent of Rs.8,64,768/-. 4. Counsel for the defendant submitted that the plaintiff was required to deliver all the goods - 3 - mentioned in the purchase order dated 9th August 2006. The defendant delivered only part of the goods and therefore the plaintiff was not entitled to payment. Counsel for the defendant further submitted that the defendant therefore has a good defence for non-payment. I am unable to agree. 5. Firstly, the purchase order clearly discloses that the defendant was to make payment in five equated weekly instalments from 21st day of the date of delivery of the material. The defendant did not make the payment within the stipulated period. The delivery of the first consignment was made on 4th September 2006 and therefore the defendant ought to have started making the payment from 25th September 2006. This was admittedly not done. A party to the contract is entitled to withhold delivery of further consignment unless the other party is ready and willing to pay for the first instalment (see section 51 of the Contract Act). The defendant cannot withhold the payment for which he has already received delivery and appropriated the goods for its own use. If the supply is partial and not in accordance with the contract, the defendant could have rejected the goods received. Instead of that, it has appropriated the goods. After having appropriated the goods, the defendant cannot refuse to pay its price. In the circumstances, the defence of the defendant is not - 4 - genuine or bonafidebut is a moonshine. However, by way of a concession, I am inclined to grant conditional leave to the defendant to defend the suit subject to deposit of the principal amount in Court. 6. In the circumstances, the summons for judgment is disposed of by granting to the defendant conditional leave to defend the suit subject to its depositing in court the principal sum amounting to Rs.8,64,768/- within 4 weeks. On such deposit, the plaintiff is permitted to withdraw the said sum by furnishing security to the satisfaction of the Prothonotary & Senior Master. On failure of the defendant to deposit the said sum within 4 weeks, the plaintiff would be at liberty to apply. On deposit of the said sum, the suit shall stand transferred to the list of commercial causes. In that event, the defendant shall file its written statement within 8 weeks thereafter. 7. Summons for judgment is disposed of. (D.G. KARNIK, J.)