-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDNARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 5 OF 2009 IN SUMMARY SUIT NO. 3168 OF 2008. SVD Resins and Plastics Pvt. Ltd. ..Plaintiffs. Versus Vishal Commercial Corporation. ..Defendants. Mr. Sanjay Jain a/w Ms. Sapna Rachure i/b M/s. T. N. Tripathi & Co., for the plaintiff. Mr. Jaydeep Mitra i/b Munir Merchant for the defendant. Coram : R. V. MORE, J. Date : January 5, 2010. P. C. : 1. Heard the learned counsel for the respective parties. The plaintiff filed above suit under the provisions of Order-XXXVII, Rule-2 of the Code of Civil Procedure, 1908 for recovery of an amount of Rs.3,99,290/- along with interest on the principal amount of Rs. 3,70,132/- at the rate of 18% per annum from the date of the filing of the suit. 2. The plaintiff is a limited company trading in various chemicals and allied products. The defendant is a firm carrying on business in chemicals. It is the case of the plaintiff that in or about February/March 2008, the defendant through their broker Mr. Bharat Seth approached the Plaintiff for purchase of certain chemicals, i.e., Gum Rosin. After negotiations the plaintiff agreed to sell and the defendant agreed to purchase the said -: 2 :- chemicals. Accordingly, the defendant issued purchase orders of the above said goods, namely, Purchase Orders dated 1st March 2008, 5th March 2008, 6th March 2008 and 18th March 2008. As per the Purchase Orders, the plaintiff sold, supplied and delivered to the defendants the aforesaid chemicals of the agreed quality and quantity and for such supply the plaintiff raised four invoices dated 1st March 2008, 5th March 2008, 6th March 2008 and 18th March 2008 for the payment of Rs.3,70,132/-. 3. The defendants lifted the goods and in token of acknowledgment have signed delivery orders. It is further case of the plaintiff that as per the terms of sale of goods, the defendants were liable to pay to the plaintiff invoice amount within a period of 60 days from the date of respective invoice, failing which the defendants are liable to pay interest @ 18% per annum from the respective date of each invoice till payment. The defendants failed and neglected to pay the amount covered under the said invoices despite repeated requests and, therefore, the plaintiff was constrained to give notice dated 23rd September 2008 requesting the defendant to release the payment. This notice was also not replied by the defendant nor the payment was made, and therefore, the present suit for recovery of the amount mentioned above is filed. 4. Exhibit “A-1”, “A-2” “A-3” and “A-4” are the copies of the Purchase Orders given by the defendant to the Plaintiff through broker Mr. Bharath Seth. Exhibit “B-1”, “B-2”,“B-3” and “B-4” are the copies of the tax invoices raised by the plaintiff. Exhibit “C-1”, “C-2”,“C-3” and “C-4” are -: 3 :- the copies of the Delivery Orders and Challans of the Plaintiff’s Warehouse Keeper. 5. The defendants have acknowledged the delivery by making endorsement on delivery orders at page 27. 6. It is not even the case of the defendant that the chemical Gum Rosin is not supplied by the plaintiff to it as mentioned in the plaint, more particularly in paragraph no.4 thereof. 7. The defendant, however, has filed the affidavit opposing the summons for judgment. It is pointed out in the affidavit that the plaintiff – firm is run by one Vivek Shyamsunder Dujodwala, son of Mr. Shyamsunder V. Dujodwala. Said Shyamsunder Dujodwala is the director in another company by name Dujodwala Udyog Limited. It is further stated that the defendant has a sister concern by name M/s Synthetic Colour Chem Industries. It is also stated that Vivek Shyamsunder Dujodwala and Shyamsunder Dujodwala were interested to purchase chemical Gum Rosin for their factory at Faridabad and requested M/s Synthetic Colour Chem Industries to place orders for the same. On this request, M/s. Synthetic Colour Chem Industries placed an order with M/s. Himachal Pradesh State Forest Corporation Limited, who delivered and supplied 27,000 kgs of Gum Rosin worth Rs.11,02,558/-. It is the case of the defendant that M/s. Synthetic Colour Chem Industries made advance payment to M/s Himachal Pradesh State Forest Corporation on behalf of M/s. Dujodwala Udyog Limited. It is further case of the defendant that out of Rs. 11,02,558/-, an -: 4 :- amount of Rs. 3,00,000/- was paid by M/s. Dujodawala Udyog Limited, leaving behind balance amount of Rs. 8,02,558/-. Lastly, it is averred that the plaintiff agreed to supply the material to the defendant equivalent of 50% of the outstanding amount due and payable by M/s. Dujodwala Udyog Limited to Synthetic Colour Chem Limited and it was assured by Mr. Vivek Dujodwala and Shaymsunder Dujodwala that balance amount will be paid within 2 to 3 months. It is also stated that the chemical Gum Rosin which was supplied by the plaintiff to the defendant was of inferior quality. The defendant relied upon the affidavit of Vinodkumar Roshanlal Mehendra, who according to them has witnessed the above transactions. In the above facts and circumstances it was claimed that summons for judgment is liable to be dismissed. 8. A perusal of the documents annexed to the plaint, particularly the purchase orders, tax invoices and delivery challans do show that the chemical – Gum Rosin worth Rs. 3,70,132 was supplied by the plaintiff to the defendant as contended in the plaint. The defendant also does not dispute this position. The contention of the defendant in this regard is that the supply of the above chemicals was towards the adjustment of 50% dues of the sister concern of the plaintiff to the sister concern of the defendant. Secondly, it is the contention of the defendant that the quality of the material supplied was inferior. 9. The purchase orders placed with the plaintiff by the defendant do show that the same were placed through broker – Bharat Seth, whose -: 5 :- name is appearing in the purchase orders. The instructions at Serial no.3 in the purchase orders reveal that the payment is to be made within a period of 60 days from the date of receipt of goods. The case of the defendant is that the supply of chemicals was towards the adjustment of payment of the sister concern of the plaintiff. In that event there was no necessity to place the orders through broker – Bharat Seth. Instruction that the payment is to be made within a period of 60 days also weakens the case of the defendant that the supply of the chemicals was by way of adjustment. 10. Plaintiff from time to time requested the defendant for the payment of the amount due to the supply of the chemical – Gum Rosin. However, the defendant neglected the requests and therefore the plaintiff issued notice dated 23rd September 2008 to the defendant. Notice is annexed at Exhibit-“D”. There was no dispute that this notice is received by the defendant. Inspite of the receipt of notice, the defendant not only failed to comply with the demand but also neglected to reply the notice. The defence of the defendant that the supply of the above goods was by way of adjustment came for the first time in the reply to the present summons for judgment. I do not find any substance in the defence inasmuch as from the year 1999 till filing of the suit, the defendant has never taken any action for recovery of the alleged dues of Rs.8,02,558/- from the plaintiff’s sister concern, nor the defendant has placed on record any documentary evidence in that regard. Reliance of the defendant on the affidavit of one -: 6 :- Vinodkumar Roshanlal Mehendra, in view of the above facts, does not take the defendant’s case any further. 11. Taking overall view of the facts and circumstances of the case into consideration, I am satisfied that the defence of the defendant is frivolous and it cannot be given unconditional leave to defend the suit. The present Chamber Summons is accordingly disposed of by passing the following order. : O R D E R : (1) Leave is granted to the defendant to file written statement subject to deposit of an amount of Rs.3,70,132/- in this Court within 60 days from the date of this order. (2) If the said amount is deposited within the stipulated time, suit shall stand transferred to the list of Commercial Causes Suit. The defendant shall thereafter within a period of two weeks file written statement. (4) If the amount is not deposited within the stipulated period, suit shall stand decreed in terms of prayer clause (a). (R.V. MORE, J.)