IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.323 OF 2007 IN SUMMARY SUIT NO.878 OF 2007 M/s. B.D. Enterprises ...Plaintiffs Vs. Ashvinkumar Vadilal Shah ...Defendant Mr.Manoj Bhatt for the Plaintiff Mr. A.M.Saraogi for the Defendant CORAM: SMT.ROSHAN DALVI, J. DATED: 16 TH OCTOBER, 2008 P.C. 1. The Suit is filed on confirmation of account of the Plaintiffs signed by the Defendant showing the closing balance on the account to be Rs.24,86,778 /- Exhibit- E to the Plaint. The Summary Suit is maintainable under the Confirmation of Account as held by the Full Bench of this Court in paragraph 29 of the case of Jyotsna K. Valia Vs. T .S.Parekh & Company 2007(3) BCR 772 . The Plaintiff has claimed interest at the rate of 18% p.a., thereon. The Plaintiff has not shown any agreement for the interest at that rate in any contract between the parties. The Summary Suit is strictly speaking not maintainable for the claim of such interest. 2. It is the Plaintiffs' case that they are Del-credere Agents of Reliance Industries Ltd. (RIL). Certain yarn was supplied by RIL, to the Defendant. The Plaintiffs are required to make payment to RIL, initially. The buyers can purchase the yarn only through the Del-Credere agents such as the Plaintiffs. The buyers, such as the Defendant, had to make payments to the Plaintiffs. The invoice- cum- challan produced at Exhibit- A to the Plaint are issued by RIL in this invoice, the Defendant is shown as buyer. Since yarn would be a raw- material required for production of finished goods to be made by the Defendant, the goods would have to be supplied either to the Defendant himself or to his order. If the Defendant orders the Defendant's goods to be supplied to another party, such party would be the Consignee. The invoice Exhibit- A to to the Plaint show some other consignee though the Defendant is shown as the buyer. 3. Based upon such transactions the Plaintiff issued certain debit notes upon the Defendant. The Defendant made payments from time to time. The Plaintiff's Advocate argued that such debit notes were issued also towards interest and they have been paid by the Defendant. No specific debit notes showing payment of interest has been shown to Court. Even if interest is paid at the rate claimed in the plaint under debit notes it would only be circumstantial evidence to show the agreement of the parties for payment of such interest. Such payment would not constitute a written contract between parties upon which the Summary Suit would be maintainable. However the account of the transactions is maintained by the parties. 4. The Defendant has confirmed in the Confirmation of Account the amount payable by him as the closing balance. The Defendant has sought to raise the defence that he has not signed the Confirmation Account. That defence is dishonest. I have seen the original Confirmation of Account signed by the Defendant. The signature thereon is identical to the signature on the affidavit in reply of the Defendant. There is, therefore, no defence with regard to the Confirmation of Account. The Defendant has to show substantial defence. No such substantial defence is shown. The Defendant would be required to deposit the amount claimed in the suit to be able to defend this suit as a Summary Suit based upon the Confirmation of Account Exhibit- E to the plaint. 5. Prior to taking up the Summons for Judgment, the Plaintiff took out an application for attachment before judgment. The Defendant offered and has deposited the entire amount claimed in the suit at the time of the hearing of the attachment before judgment. 6. The only equitable order that can be passed only in the Summons for Judgment would be to get the said amount deposited and invested in the Court pending the Suit. Hence the following order: 1. The amount of Rs.33,63,367/- deposited by the Defendant in the Court shall remain deposited pending the Suit. 2. The Prothonotary and Sr. Master shall invest the said amount in any Nationalised Bank initially for a period of 37 months. 3. The Plaintiff applies for withdrawal of the amount or part thereof. In view of the order of investment in Nationalised Bank, the Plaintiff is not allowed withdrawal of the amount. 4. Summons for Judgment is disposed off accordingly. 5. Defendant to file written statement within 8 weeks. UODI. (SMT. ROSHAN DALVI, J.)