1 sj429-09.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.429 OF 2009 IN SUMMARY SUIT NO.1072 OF 2009 Satish Tarachand Mehta .. Plaintiff versus Autotech Industries .. Defendant Mr.H.V.Chande for the plaintiff. CORAM : S.C.DHARMADHIKARI, J. 13th October 2011. P.C.: . Heard Mr.Chande appearing on behalf of the plaintiff. The suit is filed as a summary suit under Order XXXVII of the Code of Civil Procedure, 1908 seeking a decree in the sum of Rs.5,19,660/- with further interest on the principal amount at 24% per annum or such other rate as this Court deems fit and proper from the date of filing of the suit till payment of realisation. 2] It is sated by the plaintiff in the plaint that he is a Proprietor of one Reliance Industrial Corporation carrying on business as stated in the 2 sj429-09.doc plaint. The defendant is a Firm carrying on business at Pune. However, certain orders were placed by the defendants at Mumbai pursuant to which goods worth Rs.30,91,008/- were sold, supplied and delivered on twelve occasions. The 12 bills/invoices between the period 7th December 2005 and 10th June 2006 were forwarded. All these invoices were duly received and no dispute or complaint was raised with regard to the rates charged by the plaintiffs and the amount stated to be recoverable. Further, none of the goods have been stated to be not received or if received were of inferior quality or short in quantity. In fact, out of 12 bills, 7 were paid. In so far as the amount outstanding is concerned, that was stated to be Rs.30,98,008/-.Out of this sum, by way of part payments, Rs.27,90,182/- were forwarded and as far as balance sum of Rs.3,07,824/- is concerned, that was not remitted and, therefore, the details of the said invoices which are stated to be outstanding, have been mentioned in the plaint. The notice prior to the institution of the suit was duly given, which has been received. In such circumstances, when the admitted liability is not discharged and in fact all part payments having duly accounted, that the balance sum is due and payable and since that was not paid in time, the interest overdue has been charged in terms of the contract between parties. 3 sj429-09.doc 3] Upon the institution of this summary suit, the Registry issued a writ of summons, which came to be duly served. After the service was effected, the defendant entered appearance through Mr.S.S.Kulkarni, Advocate who filed his vakalatnama. The defendant sought leave to defend by filing an affidavit in reply. 4] What has been stated in the affidavit in reply is that the supply is admitted. The affidavit proceeds on technical defences and apart therefrom it is stated that it is true that the plaintiff approached the defendant and offered to supply stainless sheets but that was at concessional rate. When the copies of the invoices, delivery challans and lorry receipts and octroi receipts were produced and have been carefully scrutinised, what has been revealed is that the plaintiff has not supplied the stated quantity and even the rate charged is not what was agreed between the parties. The defendant, therefore, raised an objection and the plaintiff was requested to send an invoice as per the discounted and agreed rate. It is stated that the defendant enquired with the plaintiff telephonically as also personally but he failed, neglected and avoided to send correct invoices. 4 sj429-09.doc 5] Mr.Kulkarni for defendant, therefore, contended that in para 9 of this affidavit in reply what has been summarised is the set of transactions from 1st April 2005 to 31st march 2007. A scrutiny of the accounts which are on the basis of the supplies effected and invoices raised by the plaintiffs would show that instead of plaintiffs having any outstanding in his account, the defendant has to recover from the plaintiff a sum of Rs.65,780/-. Therefore, this is clearly a dispute relating to reconciliation of accounts. The amount at the foot of the account has been claimed by the plaintiff but there is no agreement to pay the same nor that is an admitted sum. If such is the case, then, on the pleadings itself triable issues arise and Mr.Kulkarni places strong reliance upon the contents of para 13 of this affidavit in reply and the affidavit in sur-rejoinder. 6] After hearing both sides at some length, I am of the opinion that the suit is filed on the basis of a written contract as evidenced by the delivery challans and invoices and prior thereto, the orders have been placed by the defendant on the plaintiff. What has been set out in the plaint is that over a passage of time the goods, came to be supplied and 5 sj429-09.doc they were worth Rs.30,98,008/-. An amount of Rs.27,90,782/- has been paid and the balance remains unpaid. It is clear that there was correspondence between parties and even Advocate's notice has been duly received. The defendant, therefore, had an occasion to dispute the claim and it would have ordinarily been brought to the notice of the plaintiff that the claim is highly inflated and in any event, nothing is due and payable. If the defendant was to recover any sum, he would have definitely taken necessary legal steps. In fact, the transactions are going on for a period and claim is in relation to the four bills which are stated to be of 22nd March 2006, 14th April 2006, 28th April 2006 so also of 10th June 2006. The suit is filed in this Court on 20th March 2009. It is in the reply affidavit for the first time that several pleas are raised and some short delivery is the projected defence. Therefore, on the basis of the accounts maintained in the books of the defendant, it is stated that the defendant has over paid the plaintiffs. At the same time, a careful scrutiny of the defence would indicate that in paras 8 and 9 of the affidavit in reply, the defendant does not dispute the transactions. The defendant does not dispute that what he was seeking was an invoice as per the discounted and corrected rate. Thereafter, if there was any agreement relating to discount, that is a distinct issue than the agreed 6 sj429-09.doc rate. What has been stated through out is that the defendant has been charged at the agreed rate and if there was any error, as a prudent businessman, the defendant would not have maintained silence for all these years and raked up this issue by filing an affidavit in reply to this summons for judgement. The affidavit has been filed by the defendant on 23rd November 2009. In that affidavit and in the sur-rejoinder all these issues are raised. However, there is no dispute with regard to the transaction, documents and their receipt. In such circumstances and when the amount stated is to the tune of Rs.3,07,824/- with interest as claimed under the particulars of claim, ends of justice would be met if this summons for judgement is disposed of by imposing conditions for granting leave to defend. 7] The defendant would have an opportunity to substantiate the defence by producing such materials as are permissible in law. However, finding that the claim of the plaintiff is within limitation and that this Court has jurisdiction to entertain and try the suit so also the dispute is being raised for the first time by filing an affidavit on 23rd November 2009, that imposition of condition of deposit of a sum of Rs.3 lakhs will serve ends of justice. Accordingly following order:- 7 sj429-09.doc 1. On the defendant depositing in this Court a sum of Rs.3 lakhs within 12 (twelve) weeks from today, leave to defend the suit is granted to the defendants. Thereupon the suit shall stand transferred to the list of commercial causes. Written statement be filed within eight weeks from the date of such deposit. The suit would then be listed for directions. 2. In the event of default, all consequences in law shall follow, including a decree as prayed. (S.C.DHARMADHIKARI, J)