IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 577 OF 2009 IN SUMMONS FOR JUDGMENT NO. 77 OF 2008 IN SUMMARY SUIT NO. 2072 OF 2007 WITH NOTICE OF MOTION NO. 4217 OF 2009. The Tata Iron & Steel Co. Ltd. ..... ..... ...Appellant. V/s Sitara Shipping Ltd. ... ..... .....Respondent. Mr.I.M.Chagla, Sr. Adv. With Mr.K.Settalwad i/by M/s.Mulla Mulla CBC. Adv. for the appellant. Mr.P.S.Pratap with Mr.M.R.Khatri, Adv. for the respondent. CORAM: J.N.PATEL ACTING C.J. AND B.R.GAVAI, J. 21st January, 2010. PC: The present appeal challenges the judgment and decree passed by the learned Single Judge of this Court dated 31.8.09. 2. A suit was filed by the respondent-plaintiff for recovery of an amount of US $ 1,87,029.00 together with interest at the rate of 9% thereon. In the said suit summons for judgment came to be filed which was made absolute by the impugned judgment and the suit came to be decreed. Being aggrieved thereby the present appeal has been filed. 3. Shri Chagla, learned senior counsel appearing on behalf of the 1 appellant submits that the learned Single Judge has erred in decreeing the suit. He submits that there are triable issues and as such the learned Judge ought not to have refused the leave to defend. He submits that there is a serious dispute as to whether the plaintiff had refused to take goods back inspite of willingness on the part of defendant to return the same. He submits that the learned Single Judge has failed to take into consideration e.mail dated 2.3.2005 sent by the appellant to the plaintiff, in its correct prospective. He further submits that there is also a serious dispute as to at what rate the detention charges could be levied in the present case. He also submits that assuming without admitting that the plaintiff is entitled to claim detention charges, the same are required to be paid as per the circular issued by the Calcutta Liners Conference/Calcutta Continental Conference. He therefore submits that in view of all these aspects learned Single Judge ought to have granted leave to defend and the suit was required to be tried as long causes suit. 4. Shri Pratap, learned counsel appearing on behalf of the respondent submits that the learned Single Judge has rightly taken into consideration that the defendant had refused to make payment as per the contract executed between the parties. He further submits that the learned Single Judge has rightly held that under the bond dated 21.12.04 the defendant was bound to return the containers to the Calcutta Port Trust Shed/Dhobi Talao Containers Yard. He therefore submits that no interference is warranted in the facts of the present case. 5. On a perusal of the e.mail dated 2.3.05 it appears that the 2 present appellant has raised the dispute regarding the rates at which the payment was required to be made to the plaintiff-respondent. From the said e.mail it appears that the appellant has expressed its willingness to pay the charges at the rate charged by other liner. It has also been stated in the said e.mail that the defendant was willing to release the trailors by offloading the containers at their yard at Calcutta. The said e.mail also advises the plaintiff to take back the containers in their slot and that the bill issue could be resolved amicably. 6. In our considered view, in the present suit certain triable issues are raised. From the material on record it appears that the issues involved viz. as to whether the plaintiffs have failed to take delivery of the containers though the defendants were willing to give and as to whether where the delivery of the containers was to be made and as to what rates would be payable in the event it is found that the plaintiffs were entitled to detention charges, arise for consideration. We therefore find that in the interest of justice suit is required to be tried on merits. 7. The Apex Court in the case of Mrs.Raj Duggal v/s Ramesh Kumar Bansal, AIR 1990 SC 2218 has held that in a case where triable issue is involved leave to defend should be granted. 8. Appeal is therefore allowed. Impugned order dated 31.8.09 is set aside. The Summary Suit No.2072/07 is restored to file of learned Single Judge. Conditional leave is granted to the defendant to defend the suit on deposit of an amount of Rs.35 lacs within a period of four 3 weeks from today. After deposit of the said amount plaintiff can withdraw the amount after furnishing bank guarantee to the satisfaction of the Prothonotary & Senior Master. For further sum of Rs.70 lacs defendant to furnish bank guarantee to the satisfaction of the Prothonotary & Senior Master. Appellant to file written statement within a period of four weeks from today. Suit stands transferred to Long Causes. (ACTING C.J.) (B.R. GAVAI, J.) 4