1 SJ.474.2009 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.474 OF 2009 IN SUMMARY SUIT NO.2407 OF 2009 Nareshkumar Shantilal Jain Plaintiff versus Deepak P. Rane Defendant Mr.Ramesh Jain for plaintff. Mr.Sagar Kasar for the defendant. CORAM : S.J.KATHAWALLA, J. DATE : 5th May 2011 PC : 1. By the above Summons for Judgment the plaintiff has prayed for a judgment against the defendant in the above summary suit for the sum of Rs.6,31,065=76 Ps. and for further interest on Rs.5,15,805/- @ 24% per annum or at such other and further rate as this Hon'ble Court may deem fit and proper from filing of the suit till payment and/or realization and for costs of the suit. 2. According to the plaintiff, he is carrying on the business as a sole proprietor of the firm named and styled as "M/s.Shubham Computers". As per the orders and instructions of the defendant, the plaintiff sold, supplied and delivered to the defendant various goods under four invoices/bills aggregating to Rs.7,15,805/- particulars of which are set out in paragraph no.2 of the plaint. The copies of the said four invoices/bills are annexed as Exhibits-A to D to the plaint. The plaintiff has in the said paragraph no. 2 sought leave to refer to and rely on the delivery challans/records in connection therewith. The plaintiff has also relied on the records pertaining to the delivery of the goods in the list of documents annexed to 2 SJ.474.2009 the plaint. 3. According to the plaintiff, the defendant duly received the bills and the goods covered thereunder. The defendant did not raise any dispute and/or controversy in respect of the quality, quantity and/or the rate thereof. According to the plaintiff, after making repeated requests and demands, the defendant issued a cheque in the sum of Rs.1,00,000/- drawn on State Bank of India, Nashik Branch in favour of the plaintiff. Upon presentation the said cheque was dishonoured on the ground "payment stopped by the drawer". 4. The plaintiff, therefore, by his advocate's letter dated 20th December 2008 recorded the aforesaid facts and called upon the defendant to pay the said amount of Rs.7,15,805/- along with accrued interest etc.. The defendant by his advocate's letter dated 3rd January 2009 replied to the plaintiff's advocate's letter dated 20.12.2008 wherein it was alleged that the defendant has not received goods under invoice/bill nos.254 and 259 but has received the goods under Invoice bill nos.233 and 234 aggregating to Rs.1,37,975/-. It is alleged that during the course of business, the plaintiff had demanded a cheque for the purpose of security of business. As per the said demand the said cheque of Rs.1.00 lakh "was handed over to the plaintiff without the due date signed by the defendant". It was also alleged that the defendant has deposited Rs.1.00 lakh in the bank account of the plaintiff and, therefore, only an amount of Rs.37,905/- was outstanding against the two bills. It is alleged that after it came to the knowledge of the defendant that the plaintiff has deposited the said cheque of Rs.1.00 lakh, the defendant was surprised and directed his bank to stop the payment of the said cheque. In the said reply it is further contended by the advocate for the defendant that after the receipt of the said notice dated 20.12.2008, the defendant came to Mumbai and met the plaintiff for settlement. As per the negotiations it was decided between the defendant and the plaintiff that "to clear the technicalities regarding the said cheque no.370704 my client agreed to 3 SJ.474.2009 clear the amount due on the said cheque. But the excess amount of Rs. 62,095/- which will be with you after clearing the cheque, you have agreed to pay back the said amount of Rs.62,095/- to my client". 5. The plaintiff by his advocate's letter dated 7th January 2009 addressed to the advocate for the defendant responded to the reply letter dated 3.1.2009 received by the plaintiff from the advocate for the defendant. By the said letter the advocate for the plaintiff reiterated what was stated by him in his letter dated 20th December 2008 and denied/ disputed the contents of the reply dated 3rd January 2009 including the alleged settlement. 6. In the mean time, at the request of the defendant, the plaintiff once again deposited the cheque dated 8.12.2008 which was honoured by the defendant's bank on or about 7.1.2009. In the mean time, the defendant also paid Rs.1.00 lakh to the plaintiff. Since the balance payment was not forthcoming from the defendant, the advocate for the plaintiff once again by his letter dated 25th April 2009 called upon the defendant to pay the amount of Rs.5,15,805/- along with interest thereon within a period of 15 days from the receipt of the notice. The said letter was replied by the advocate for the defendant only on 3rd June 2009. In the said reply the advocate for the defendant for the first time alleged that the plaintiff has charged higher rate for the materials supplied to the defendant and has also indulged in the theft of certain patents. Again for the first time it was alleged on behalf of the defendant that the defendant had purchased material worth Rs.80,000/- from M/s.Thin P.C.Pvt.Ltd., Andheri which was worth Rs.2.00 lakh after sale and that the said material was taken away by the plaintiff to his shop. The said Rs.80,000/- was not given by the plaintiff to the defendant till date. By the said notice the learned advocate for the defendant also alleged that the defendant has never met the plaintiff after his notice which allegation per se contradicts what is recorded by the earlier advocate of the defendant in paragraph 6 of his reply notice dated 3rd January 2009. The advocate for the defendant now 4 SJ.474.2009 called upon the plaintiff to return Rs.1,42,095/- to the defendant within eight days failing which the defendant would take appropriate legal action for recovery of the said amount. The advocate for the plaintiff by his reply dated 15.6.2009 denied and disputed the contentions/allegations made in the letter dated 3rd January 2009 by the advocate for the defendant. The plaintiff thereafter filed the present summary suit and took out the above Summons for Judgment. 7. The defendant filed his affidavit-in-reply dated 14th December 2009 to the Summons for Judgment wherein the defendant has denied and disputed having received the goods under bill nos.254 and 259. The defendant contended that the plaintiff has to pay him Rs.1,42,095/-. The defendant submitted that he is therefore entitled to unconditional leave to defend the suit. The plaintiff in his affidavit-in-rejoinder has annexed delivery challans-cum-installation notes (which were relied upon in the plaint) showing that the defendant has received goods for which invoice nos.254 and 259 were raised. He has pointed out from the said delivery challans that the goods under invoice no.254 was received by the representative of the defendant Mr.Kishor Kumawat on 17.1.2008 on approval basis and the goods under the invoice no.259 was received by the defendant himself. He submits that the invoices cum delivery challans which are annexed as Exhibits-A and B to the plaint were signed by the defendant since the goods were supplied on the same day when the invoices were raised. In case of the invoices which are annexed as Exhibits-C and D to the plaint, the same are not signed by the defendant since the invoices were forwarded to the defendant much after the supply of the goods which were on approval basis. The defendant has tried to take advantage of the same by alleging that since he has not signed the invoice nos.254 and 259, he has not received the goods as set out therein forgetting that he and his representative have already signed the delivery challans at the time of receipt of the said goods on approval basis. 8. The defendant has not filed any sur-rejoinder dealing with the 5 SJ.474.2009 delivery challans produced by the plaintiff bearing acknowledgement of receipt of goods mentioned in Invoice Nos.254 and 259 by the representative of the defendant as well as the defendant. However, the learned advocate for the defendant has tried to submit across the bar that the representative of the defendant was working with the defendant for a very short period and that his signature may have been wrongly obtained and that the defendant is disputing his signature on the delivery challan in respect of invoice no.259. 9. I have considered the submissions advanced on behalf of the plaintiff and the defendant. The invoices cum delivery challans at Exhibits-A and B are admitted by the defendant because the same bear his signatures. The said invoices cum delivery challans bear the signature of the defendant because the defendant himself has taken the delivery of the said goods from the plaintiff on the very day when the invoices-cum-delivery challans were prepared. The invoice at Exhibits-C to the plaint i.e. Invoice No.254 shows that the goods were dispatched to the defendant on 17.1.2008 at ex-works site through Kishore Kumawat. In view thereof, the signature of Mr.Kishore Kumawat was obtained by the plaintiff on a separate delivery challan which was issued on 17.1.2008 and obviously the signature of Mr.Kumawat or the defendant is not on the invoice which was subsequently raised only on 8th August 2008. Similarly invoice no.259, dated 11th August 2008 records that the goods set out therein were already dispatched to the defendant at ex-works site on 8.2.2008. For the said goods a separate delivery challan was issued and receipt of the goods was acknowledged by the defendant himself. All the details pertaining to the goods dispatched are set out in the invoices annexed at Exhibits-C and D to the plaint. The plaintiff has also relied on the delivery challans/records, in paragraph 2 of the plaint as well as in the list of documents annexed to the plaint. However, the defendant did not seek inspection of the same and in his reply alleged that he has not received the goods under invoice nos.254 and 259. Though the plaintiff produced the delivery challans, one bearing the signature of the 6 SJ.474.2009 representative of the defendant Mr.Kishore Kumawat and the other bearing the signature of the defendant himself, the defendant has not filed any sur-rejoinder dealing with the same. The contention now advanced on behalf of the defendant is that the said Kishore Kumawat was for a very short period working with the defendant and his signature appears to have been obtained by the plaintiff and that the defendant's own signature on the delivery challan pertaining to invoice no.259 is disputed by him, appears to be totally false and dishonest to the knowledge of the defendant. On a visual comparison undertaken by this Court, the signature of the defendant on the said delivery challan with his admitted signatures on invoices annexed as Exhibits-`A' and `B' to the plaint, his Vakalatnama and his affidavit-in-reply, this Court is satisfied that the signature on the delivery challan is that of the defendant. Again from the replies to the notices sent by the advocates for the plaintiff it appears that the defendant right from the inception is taking up defences which are false to his knowledge. Though in the first reply of his advocate dated 3.1.2009 the only stand taken by the defendant was that he admits having received the goods under the invoices annexed as Exhibits-A and B to the plaint and has denied having received the goods set out under Exhibits-C and D to the plaint, in the reply which is sent to the subsequent notice by the advocate for the plaintiff, the defendant has for the first time taken a stand that he was cheated by the plaintiff by charging higher rate for the materials and that the plaintiff was indulging in the theft of patents and further that the material of Rs.80,000/- purchased by the defendant from M/s.Thin P.C. Pvt.Ltd., Andheri was taken away from his shop by the plaintiff. No particulars of the alleged goods or as to when the same were taken away are provided by the defendant. Though the plaintiff was called upon by the advocate for the defendant to pay Rs.1,42,095/- allegedly payable by the plaintiff to the defendant within eight days from the receipt of notice from the defendant's advocate failing which appropriate legal action would be initiated by the defendant, no such action has been taken by the defendant despite a period of approximately two years having lapsed. Though in reply to the first notice of the Advocate for the plaintiff, 7 SJ.474.2009 the advocate for the defendant has expressly stated that after the receipt of the notice the defendant had met the plaintiff to discuss settlement, in the subsequent correspondence the advocate for the defendant has alleged that the defendant did not had any meeting with the plaintiff after receipt of the said first notice from the plaintiff's advocate. 10. In the circumstances, I am of the view that the defences raised by the defendant are mere moonshine. The said defences are false, incorrect and dishonest to the knowledge of the defendant. However, the defendant is given an opportunity to defend the suit on the condition of his depositing a sum of Rs.5.00 lakhs with the Prothonotary & Senior Master of this Court within a period of eight weeks from today. In the event of the defendant depositing the said amount, as directed, the suit shall be transferred to the list of commercial causes and the defendant shall be entitled to file his written statement within a period of four weeks from the date of deposit of the said amount of Rs.5.00 lakhs. The Summons for Judgment is accordingly disposed of. (S.J.KATHAWALLA, J.)