1 sj245.10.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 245 OF 2010 IN SUMMARY SUIT NO. 1890 OF 2009 M/s. Kimpex Auto Corporation ......Plaintiff. Vs. M/s. Olive Drive and Ors. ......Defendant. Mr. K.H. Holambe Patil a/w Mr. B.V. Holambe Patil for the Plaintiff. Mr. Sahil Mahajan i/by Ms. Shalak Ganesh for the Defendant. CORAM :- ANOOP V. MOHTA, J. DATE :- 9 DECEMBER 2011. P.C.:- The Plaintiff has taken out this Summons for Judgment in a Summary Suit for recovery of an amount on a foundation of non- payment, though the goods were delivered to Defendant No.1. 2 Defendant No.1, as alleged, is a partnership firm of which Defendant Nos. 2 and 3 are the partners. The goods were delivered, as averred, to Defendant No.1 on the given address i.e. 444, Sakhsaria 2 sj245.10.sxw ssm Building, Prarthana Samaj, Mumbai. The documents relied upon are in the name of Defendant No.1. The alleged acknowledgment of the goods on those documents are of the employees and/or staff of Defendant No.1. Those documents are ranging for the period from January 2006 to July 2006. 3 To the demand notice sent by the Plaintiff, Defendant No.3 denied the liability and specifically replied that he has no concerned with Defendant Nos. 1 and 2 though the reply was addressed from the address in question. There is nothing on record to show that Defendant No. 3 has any connection and/or was partner of the firm- Defendant No.1. There is a reply filed by Defendant Nos.1 and 2 also. They resisted the averments of the plaint, basically on the foundation that the firm/the place of business was changed some time in the year 2002 itself. So there were no business, at the relevant time, as contended by the Plaintiff in the premises in question. There are material placed on record by Defendant Nos. 1 and 2 to show that they have already shifted the business. Therefore, the question remains of supply of goods, if any, by the Plaintiff to Defendant Nos. 1 and 2 and/or 3. If there are no documents to show that Defendant No. 3 is also a partner of the firm, then at this stage the case based 3 sj245.10.sxw ssm upon the reply sent from the same address needs to be considered as one of the defence to oppose the Summons for Judgment. 4 So far as Defendant Nos. 1 and 2 are concerned, in my view, though there are affidavit and material on record through the Bailiffs report/affidavit to show that the business was in the same premises of Defendants, but as for Summons for Judgment the requirement is of clear acknowledgment of liability, as well as, the receipt of the goods, and as the same are missing, that cannot be the foundation to accept the Plaintiff's case to grant the Summons for Judgment as prayed. There is a heavy burden lies upon the Plaintiff to show that the goods were sent and received by Defendant Nos. 1 and 2 and they have acknowledged the liability. In view of above and after considering the rival contentions and the documents placed on record, at this stage, it is difficult to accept the case of the Plaintiff to grant Summons for Judgment. There are questions of facts in view of the rival contentions itself, which need to be adjudicated during the trial. The Defendants, therefore, in my view has raised a good defence on merits and cannot be stated to be bogus or sham. 5 Resultantly, unconditional leave is granted. The Defendants to 4 sj245.10.sxw ssm file written statement within 30 days. The Suit be transferred to the list of Commercial Causes. 6 The Summons for Judgment is disposed of. There shall be no order as to costs. (ANOOP V. MOHTA, J.)