1 mp t IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO.269 OF 2008 IN SUMMARY SUIT NO. 1844 OF 2008 Vinod Thakkar .. Plaintiff versus Rashmi Vinay Mathapati .. Defendant ... Mr.C.A. Athani with Ms.Sonali Kunekar i/b Vikas Mahangare for the plaintiff. Mr.Mukesh V. Aiya for the defendant. CORAM : D.G. KARNIK, J DATED : 1st April 2009 P.C.: 1. Heard learned counsel for the parties. 2. The suit has ben filed by the plaintiff for recovery of Rs.13,01,750/- as the principal sum and interest thereon totalling to Rs.15,66,833.90. 2 3. Though Summons for Judgement was served on the defendant on 27th August 2008, no application for leave to defend has been filed nor has the defendant filed any affidavit in reply. Counsel for the plaintiff undertakes to file affidavit of service of Summons for Judgement. Undertaking is recorded and accepted. 4. In the absence of any application for leave to defend, plaintiff is entitled to a decree under Order 37 Rule 3(6) of the Code of Civil Procedure read with Rule 221 of the Bombay High Court (Original Side) Rules. 5. I have however heard the learned counsel for the defendant as a demurer though no application for leave to defend has been filed. Counsel for the defendant submitted that the goods were not delivered by the plaintiff to the defendant and therefore, the money is not due. He secondly submitted that details such as order number, challan number and invoices number have not been mentioned in the invoice and therefore, suit is not maintainable. He further submitted that the invoices do not contain the signature of the defendant and therefore also the 3 suit is not maintainable as a summary suit. 6. In my view, these contentions have no merit. Plaintiff has averred on affidavit that the goods were supplied as per the order and invoices were issued. This fact has not been denied by the defendant by filing any affidavit in reply. Plaintiff by its advocates notice dated 1st November 2007 addressed to the defendant demanded the payment. The defendant sent the reply dated 14th November 2007. In the said reply, the defendant pleaded the financial difficulties arising out of the delayed loan by its bankers. In the next paragraph, the defendant stated that he would start releasing the payment to all the suppliers including the plaintiff. By that reply he further agreed to pay interest at 15% p.a. on the outstanding amount from the that month i.e. from November 2007. This clearly belies the submission that goods were not delivered to the defendant. Learned counsel for the defendant faintly argued that the letter was not written by the defendant. The defendant has not filed any affidavit denying the writing of this letter. Only on the basis of oral submissions of the counsel, it cannot be held that the letter was not written by the defendant or on the instructions of the defendant especially when the letter is written on the letter 4 head of the defendant. This letter constitutes a written agreement to pay and hence the suit is maintainable as a summary suit. 7. In my view, therefore, the plaintiff has no defence so far as principal sum is concerned. As regards the claim of interest, learned counsel for the plaintiff fairly stated that the plaintiff is giving up the claim of interest prior to the date of the filing of the suit. He however claims interest at 18% p.a. from the date of suit till payment. 8. For the reasons stated above, Summons for Judgement is made absolute and the suit of the plaintiff be decreed as follows:- 9. The defendant shall pay to the plaintiff sum of Rs.13,01,750/- together with interest thereon at 15% p.a. from the date of the suit till payment and all costs of the suit. 10. Learned counsel for the plaintiff prays for stay of execution of the decree. The execution of the decree is stayed for a period of two weeks. 5 (D.G. KARNIK, J)