1 mss SS1454 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO. 1454 OF 2009 BURHAN M. MOTIWALA .. PLAINTIFF Vs. GKW LTD. .. DEFENDANTS Mr. D. B. Benerjee i/b U. L. Shah for the plaintiff CORAM: S.C.DHARMADHIKARI, J. DATED: 5/12/2011 P.C. This suit is filed as a summary suit on the basis of a written contract as evidenced by the purchase order and the acceptance thereof by the defendant. 2. It is stated in the plaint that by a purchase order of the date specified in the plaint, certain goods were ordered by the plaintiff from the defendants. The advance amount for the delivery and sale of the goods was also forwarded which was duly received and encashed. As agreed only part goods were forwarded and delivered, so also sold. The balance part was 2 mss SS1454 not forwarded, therefore, the plaintiff took up the issue with the defendants and called upon the defendants to refund the proportionate sum of advance as the agreed goods were not supplied, sold and delivered. The claims were forwarded by advocate’s letter which also state that a petition for winding up of the defendants would be filed, if the amount is not paid. 3. Finding that there was no response to any of these notices though they were received and acknowledged, the instant suit is filed as summary suit evidenced by a written contract under which the amounts have been paid for sale, supply and delivery of goods. Writ of summons was duly served and in response thereto a letter dated 10th of August, 2009 has been addressed by the defendant to the plaintiff which reads as under: “We are in receipt of Summary Suit No. 1454 of 2009 filed in the Hon’ble High Court of Judicature at Bombay Ordinary Civil Jurisdiction. As informed you earlier that due to acute financial crisis and persistent labour problem/gherao/go slow tactics etc. by the workmen, the Company had to declare lock out with effect from 16.10.2007. The Company has remained practically closed since then. That you had placed an order for supply of Steel Safety Pin 3 mss SS1454 alongwith an advance of Rs.3,18,398/-. Your order had been fulfilled to a large extent i.e., out of total advance of Rs.3,18,398/- material worth Rs.2,61,087/- i.e. 82% had been supplied to you before the production was stopped due to lock out. The Company was under B.I.F.R. at the time of the said lock out. Due to acute financial problem, we could not return your advance i.e. Rs.57,311/- earlier. However, we have arranged to return you the balance amount i.e. Rs.57,311/- to you. Kindly confirm that refund of Rs.57,311/- will be treated as full and final settlement on receipt of the payment from our end. Further that you will arrange to withdraw the above Summary Suit immediately. Please inform us urgently otherwise, we may have to deposit the above said amount of Rs.57,311/- to the Hon’ble High Court.” 4. The original letter is produced along with the compilation of documents. The affidavit of evidence of the plaintiff has been filed only to demonstrate and prove the written contract as admitted by the contents of the aforementioned letter. 5. From a perusal of the above, I am satisfied that the suit is 4 mss SS1454 maintainable as a summary suit under Order XXXVII of the Code of Civil Procedure, 1908 that this court has territorial jurisdiction to entertain and try the suit and that the claim of the plaintiff/s is not barred by limitation. 6. In the light of the acknowledgment of the liability to the extent indicated in the aforementioned letter, it is apparent that the defendants have failed to raise any dispute about the liability or the claim of the plaintiff in the suit. Rather they have admitted it. 7. In such circumstances writ of summons is taken on record. The original writ of summons with the acknowledgment is marked “X” for identification. The original documents are marked “X-1 collectively”. 8. There will be a decree as prayed in favour of the plaintiffs and against the defendants. 9. Refund of court fees shall be granted as per rules. Advocate’s cost also will be computed as per the rule. Decree be drawn up accordingly. (S. C. DHARMADHIKARI, J.)