: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.315 OF 2009 IN SUMMARY SUIT NO.1578 OF 2009 Technocrafts Plasma System Pvt. Ltd. .. Plaintiffs v/s. Vijay Brito .. Defendant Proprietor of M/s. Pure Water System ......... Mr. Moni Cinmoy i/by Cinmoy & Associates for the plaintiffs Mr. A.J. Almeida for the defendant ......... CORAM : R.Y.GANOO, J. DATE : 14th JUNE, 2010. P.C. : 1. The plaintiffs have instituted this suit for recovery of sale of machinery of the defendants. Defendants have paid a sum of Rs. 38,250/- at the time of placing of the order and leaving balance of Rs.57,375/-. The plaintiffs have instituted this suit for recovery of this amount of Rs.57,375/- along with interest. The parties have completed the pleadings. 2. I have heard learned advocates on both sides. The plaintiffs : 2 : have came out with the case that the defendants failed to pay the amount though machinery of good quality was delivered to the defendants. As against this, defendants have categorically stated in affidavit in reply that after seeing the performance of the machine, supplied at the first instance i.e. machine delivered in June, 2006, the plaintiffs were satisfied that the said machine is defective, new machine is to be delivered as and by way of replacement. The defendants have specifically pleaded such replacement. According to the defendants, the new machine so delivered also did not work and to that extent defendants’ claim that defective machinery was supplied and, therefore, they are not liable to pay the amount. 3. I have considered the service reports relied upon by the defendants, which are enclosed to the affidavit in reply. It is suggested by learned Counsel for plaintiffs that this service report relate to other machine and not to the suit machine. Despite giving reasonable opportunity to the plaintiffs to support this stand, no material could be produced in support of this stand. It is not the case of the plaintiffs that plaintiffs had supplied to the defendants various : 3 : machines of different descriptions. If this is so, chance of service report in regard to some other machine is being used is ruled out. Fact remains that the defendants have taken specific defence that defective machinery was delivered in the first place and even replaced machine did not work properly. In my view, defendants have made out a case that defective machinery was supplied and hence they could be granted unconditional leave to defend the suit as this defence goes to the root of the matter. Hence, the following order is passed. ORDER (i) Defendants are granted unconditional leave to defend. (ii) Defendants to file written statement directly in the Court on 2nd August, 2010. (iii) Adjourned to 2nd August, 2010 for Written Statement. (iv) Summons for Judgment disposed of in the above terms with no order as to costs. (R.Y.GANOO, J.)