1sj-472-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT No. 472 OF 2009 IN SUMMARY SUIT No. 2097 OF 2009. M/s Airlinks .. .. Plaintiffs. versus Mr Vishal Jajodia .. Defendant. Mr D.H. Shah for the Plaintiff. Ms Indrayani M. Koparkar for the Defendant. CORAM:- S.C.DHARMADHIKARI,J DATED:- 9th December, 2010. P.C.:- 1. Heard both sides. Perused the plaint and the annexures. The claim of the plaintiffs is based on an Invoice/Bill which he states is forwarded on account of service rendered as Freight Forwarding Agent of the defendant. It is submitted that as against the Airfreight, commission had to be paid, which was paid in part leaving the balance of Rs.1,30,000/- for which demands were raised but the same was not paid. 2. Response of the defendant is that the defendant has been utilizing services of the plaintiffs for shipments of their products to various overseas buyers world-over. The L 2sj-472-09 consignment entrusted to the plaintiff was a shipment of four cartons out of which one carton was damaged and destroyed at the destination airport and the claim was rejected by the Insurance Company. The negligent handling of the goods has resulted in losses. 3. The plaintiffs rejoinded by saying that M/s Alcon Biosciences Pvt Ltd had entrusted the shipment of four packages to M/s Airlinks Cargo Pvt Ltd as forwarding agents. M/s Alcon Biosciences Pvt Ltd and M/s Airlinks Cargo Pvt Ltd are two distinct companies and, therefore, one claim cannot be mixed with another. 4. In the affidavit, filed on record, this stand is reiterated. Having perused the same, I am of the opinion that the suit, as filed, for service rendered is not maintainable unless the written contract in that behalf is produced. Suit can be filed on the basis of a written contract, as envisaged, by Order XXXVII of the Code of Civil Procedure and not on the strength of same invoices simplicitor. This itself gives rise to a triable issue and in the light of stand taken in the affidavit in reply and rejoinder, in any event, triable issues arise. 5. For the aforesaid reasons, there will be unconditional leave to defend. The suit stands transferred to the commercial causes with usual directions to file written statement, discovery and inspection. Summons for Judgment is dismissed. (S.C.DHARMADHIKARI,J) L