1 sj204-09.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Summons for Judgment No.204 of 2009 . in Summary Suit No.741 of 2009 Mita Fasterners Pvt. Ltd. .. Plaintiffs v/s. Shri Ghanshyam Auto Parts Pvt. Ltd ..Defendants Mr.Nilesh S. Das for the Plaintiffs. Mrs.Seema S.Singh for the Defendants CORAM : R.Y.GANOO, J. DATED : 19th July, 2010 P.C. : 1. Heard learned counsels on both sides. The Plaintiffs supplied to the defendants goods covered by invoices which are set out in the particulars of claim at page 42. Cost of the said goods turns out to be Rs.9,00,659/-. The defendants have come out with the stand that the goods supplied by the plaintiffs were of inferior quality i.e. according to the defendants the goods ordered were of Boron Steel Grade, whereas the goods supplied were of M.S.Grade. The defendants have by their letter dated 3.2.2007 categorically arrived at figure namely Rs.1,56,676.20 towards the rate difference due to the difference in 2 sj204-09.sxw grade of material supplied during the said period and accordingly debit note no.116 dated 01.02.2007 has been raised. If this aspect is considered, it will clearly go to show that the defendants accepted the goods sent by the plaintiffs, however, agreed to pay to plaintiffs amount lesser than Rs.9 lakhs and odd amount and that is why the debit note to the extent of Rs.1,56,676/- was given. Rs.9,00,659/- less Rs.1,56,676/- , the difference turns out to be Rs.7,43,983/- being the amount payable by the defendants to the plaintiffs. 2. The plaintiffs had filed company petition and in the said company petition. Defendants were ultimately directed to deposit the sum of Rs.5,00,000/-. 3. Defendants have claimed that they returned to the plaintiffs goods worth Rs.2,05,233.94 by roadways. The affidavit in reply filed by the defendants in the endorsement issued by the transporter clearly goes to show that the plaintiffs did not receive the goods and therefore the goods were not re-delivered to the plaintiffs. In substance, the stand of the defendants that the goods worth Rs. 2,05,233,94 were returned to the plaintiffs can’t be accepted. 3 sj204-09.sxw 4. It has been the contention of the defendants that the defendants have paid in all the sum of Rs.3,38,990/-. The table is prepared and is mentioned at page 70 exhibit 6 of the affidavit in reply. In reply to the court’s question the learned Counsel for the defendants could not point out that these payments were as against all invoices raised in the present suit. If this be so, payments if any made by the defendants to the tune of Rs.3,38,990/- are in respect of other transaction and the court cannot look into these payments for the purpose of arriving at decision in the matter. On consideration of the entire record it is clear that defendants received the goods, treated them as of inferior quality, raised a debit note and that is how the defendants had the benefit of the same. 5. The defendants have not been able to put up the defence for the purpose of getting unconditional leave. The defendants have already deposited the sum of Rs.5 lakhs in the company petition. Taking the note of above calculation the Defendants will have to be put to terms to deposit Rs.2,43,000/- to defend the suit. 4 sj204-09.sxw 6. In view of the above, the summons for judgment is disposed of by passing the following order: ORDER i. Defendants to deposit in this Court the sum of Rs.2,43,000/- on or before 13.9.2010 as a condition to defend the suit. Defendants to file written statement in the court directly on 20.9.2010. Adjourned to 20.9.2010 for written statement. [R.Y.GANOO, J.]