: 1 : sj-352-08=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 352 OF 2008 IN SUMMARY SUIT NO. 2662 OF 2008 Arihant Chemicals & Resins (I) Pvt. Ltd. .. Plaintiffs v/s. Mr. Ramesh Jaisingh, Proprietor of M/s. Lakshmi Agencies .. Defendant ......... Mr. A.R. Bamne for the plaintiff Mr. Sudarshan Shinghrani for the defendant ......... CORAM : R.Y.GANOO, J. DATE : 8th DECEMBER, 2010 P.C. : 1. The plaintiff, a limited company has filed this suit to recover Rs.55,673/- along with interest in regard to goods sold and delivered to the defendant in terms of suit invoice. In the plaint, there is specific mention that total cost of two invoices was Rs.73,673/-. However, defendant has paid a part of the amount and that is how the claim is made for unpaid amount of Rs.55,673/-. 2. Defendant has come out with the defence that defendant was acting as Commission Agent and that is how the affidavit-in-reply proceeds. At one stage, defendant had raised the dispute as regards : 2 : sj-352-08=.sxw delivery of the goods. Plaintiffs have produced the delivery challan signed by person by name Vijay on behalf of the defendant. According to the defendant, as stated in the affidavit dated 22nd July, 2009, no employee by name Vijay was employed by the defendant at the relevant time. Hence, delivery of goods is not proved by the plaintiffs. 3. Having read affidavit-in-reply dated 26th November, 2008, it is clear that the defendant has admitted receipt of the suit goods. It is possible that Vijay is the employee of the defendant who has received the goods. Two questions arise for determination. The first question is as regards the stand of the defendant that he is the commission agent. Except the bare word, the defendant has not been able to produce any material to show that defendant is a commission agent for plaintiffs. Since the plaintiffs is a limited company, in the normal course, if defendant is to be appointed as a commission agent, plaintiffs would issue a letter appointing to the defendant as a commission agent. In the absence of appropriate material, the stand of the defendant that he was appointed as commission agent, cannot be accepted. The defendant has paid a sum of Rs.18,000/-. No explanation is given by the defendants as to why sum of Rs.18,000/- has been paid. If the defendant was the commission agent, he could have given necessary calculation as to the costs of the goods and commission, he was : 3 : sj-352-08=.sxw entitled to receive. No such exercise has been done. On the basis of these observation, case of the defendant that defendant was the commission agent cannot be accepted. So far as the question of delivery of goods is concerned, the case of the defendant that he had not employed Vijay as an employee, is after though because the defendant could have taken this defence at the first available opportunity. In view of the above, defendant has failed to make a case for securing unconditional leave. Looking to the nature of the defence, it would be proper to direct the defendant to deposit sum of Rs.55,673/- being the unpaid costs of the goods. Hence, following order is passed to dispose of the summons for judgment. ORDER (i) Upon defendant depositing in this Court a sum of Rs.55,673/-, defendant is granted leave to defend the suit. (ii) Defendant to file written statement in the office on or before 8th February, 2011. Defendant to serve copy of the written statement upon advocate for the plaintiffs within 10 days from filing of the written statement in the office. There shall be no order as to costs. (R.Y.GANOO, J.)