1 sj80-09.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Summons for Judgment No.80 of 2009 in Summary Suit No. 3295 of 2008 Crescent Chemicals .. Plaintiffs v/s. V.F.C.Industries Pvt. Ltd. ..Defendants Mr.K.D.Shah for the Plaintiff. Mr.A.N.Nasarikar for the Defendants CORAM : R.Y.GANOO, J. DATED : 14th October , 2010 P.C. : 1. Plaintiffs have filed the suit for recover of Rs.72,988/- and interest as set out in the particulars of claim. Defendants have filed affidavit in reply. Perusal of the same goes to show that they have admitted receipt of the goods. It is the case of the defendants that the goods sent by the plaintiffs were of inferior quality and defective. It is to be noted that the grievance about defective goods was not communicated to the plaintiffs soon after the goods were received by the defendants. Plaintiffs by their letter dated 24.3.2008 called upon 2 sj80-09.sxw the defendants to make the payment. Similar request was made by another letter dated 27.3.2008 and 4.7.2008. By way of reply to these letters, defendants wrote to plaintiffs advocate through Advocate Mr. Majmudar and made grievance about the inferior quality of goods. This conduct on the part of the defendants is not keeping with a prudent business man. If at all the goods were defective, the defendants ought to have lodged protest soon after the goods were inspected by them. There is no explanation coming from the defendants as to what happened to the goods which in their opinion were defective. This defence on merits is required to be rejected. 2. Plaintiffs have instituted this suit through Power of Attorney by name Mr. M.B.Mane. The said Power of Attorney is dated 17.12.2005. Counsel for the defendants took me through the introductory recital of the Power of Attorney and also the main substance of the Power of Attorney and tried to submit that perusal of the introductory recitals would go to show that the plaintiffs were interested in appointing the Power of Attorney to attend to litigations which had ensued prior to the execution of the Power of Attorney. He, therefore, submitted that 3 sj80-09.sxw on the strength of this Power of Attorney, the present suit could not have been filed. Counsel for the defendants had relied upon the following judgments:: (1) AIR (39) 1952 Punjab 99 Atma Ram Sahni vs. Chitra Production Co., (2) A.I.R. 1938 Calcutta 4232 H. Ezekiel vs. Carew & Co. Ltd., (3) A.I.R. (38) 1951 Punjab 371 (C.N.103) D.H.M.Framji & Ors. vs. The Eastern Union Bank Ltd., (4) 2009 (4) MR 247 M/s. Hari Shree Enterprises vs. M/s. Vikas Housing Ltd. & Ors., to point out to the court as to how the Power of Attorney executed by a particular party is to be interpreted. 3. I have perused the said judgments. In the Power of Attorney dated 17.12.2005, in the operative part at item no.2, authority is given to the Power of Attorney to file suits. Question before the court is whether the Power of Attorney dated 17.12.2005 can be used by the plaintiffs. No doubt this can be treated as important issue as regards maintainability of the suit. However, the defendants have not been able to produce before the Court any defence on merits, namely as 4 sj80-09.sxw regards delivery of the goods, rate, quantity, quality etc. It is in these circumstances, I am inclined to put the defendants to terms as regards the deposit of monies. It was faintly argued by the Counsel for the defendants that the invoice speaks of interest at the rate of 15 % whereas the plaintiffs have claimed interest at the rate of 18 % per annum i.e. from the date of filing of the suit. In my view, claiming interest at the rate of 18% by itself would not entitle the defendants to get unconditional leave. Hence following order is passed to dispose of the Summons for Judgment. ORDER i) Upon defendants depositing in this Court Rs.72,988/- on or before 20.12.2010, defendants are granted leave to defend. ii) Defendants to file written statement directly in the court on or before 14.1.2011. Defendants to serve copy of the same upon Advocate for the plaintiffs within 10 days from the filing of the same. iii) If the amount is deposited, office shall invest the same in 5 sj80-09.sxw Fixed Deposit initially for a period of two years and continue to renew the same for like period till further orders. There shall be no order as to costs. [R.Y.GANOO, J.]