-: 1 :- HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 227 OF 2009 IN SUMMARY SUIT NO. 3479 OF 2009 Transolutions Pvt. Ltd. ..Plaintiff. Versus Pankaj Chheda, proprietor of Mangalam Cargo Movers. ..Defendant. Mr. Ditendra Mishra for the plaintiff. Mr. Vishal Kanade a/w Mr. Mayank Pandya i/b U. S. Jain for defendant. Coram : R. V. MORE, J. Date : March 10, 2010. P. C. : 1. The plaintiff has filed the above suit for recovery of an amount of Rs. 29,37,800/- against the defendant. It is the specific case of the plaintiff that by an agreement dated 16th September 2007 entered into between the plaintiff and the defendant the plaintiff agreed to transport 55 trailers of the defendant from Khopoli to Kalpkam in Tamilnadu for the agreed sum of Rs.60 lacs. It is the further case of the plaintiff that at the time of consignment the plaintiff found that details of size and weight of the goods shown in packing list was bigger and heavier than the list given to the plaintiff and as a result of which there was increase of 22- to 25% in the cost of operation. The plaintiff thereafter raised 3 bills for the total sum of Rs.87,87,800/- and out of the said amount the defendant paid an amount of Rs.58,50,000/- only and balance amount of Rs.29,37,800/- was not -: 2 :- paid. Despite demand, the balance amount was not paid and therefore the present suit under the provisions of Order-XXXVII Rule-2 of the Code of Civil Procedure, 1908 is filed for recovery of that amount along with interest @ 36% p.a. from the date of the suit till its realisation. After service of the writ of summons alongwith true copy of the plaint on the defendant, the filed summons for judgment. 2. The defendant by filing affidavit-in-reply opposed the summons for judgment and claimed unconditional leave to defend the suit. Mr. Kanade, learned counsel for the defendant submitted that the suit is not maintainable under Order-XXXVII Rule-2 of the Code of Civil Procedure, 1908 as there was no written contract between the parties. He further submitted that the dispute between the parties is already settled and the plaintiff has accepted an amount of Rs.16 lacs towards the full and final settlement of his claim. He further submitted that there are triable issues and disputed questions of fact involved in the suit and therefore unconditional leave to defend the suit deserves to be granted to the defendant. 3. It is the specific case of the defendant that on 24th March 2008 Mr. Dilip Yadav and Mr. Ganesh Sanwal from the plaintiff company visited the office of the defendant and after due negotiations as and by way of final payment, the defendant issued a cheque of Rs.16 lacs in favour of the plaintiff. The defendant has annexed at Exhibit-10 to their affidavit-in-reply copy of the voucher. Perusal of the said document discloses that a cheque bearing No. 457826 dated 26th March 2008 for an amount of Rs.16 lacs was issued by the defendant towards the full and final payment of the plaintiff. In acknowledgment of the cheque, Mr. -: 3 :- Dilip Yadav has signed the said voucher. Said Mr. Dilip Yadav is admittedly the plaintiff’s cashier. At Exhibit-4 to his affidavit-in-reply the defendant has annexed detailed statement of his account as issued by the plaintiff company. The said statement of account discloses that the plaintiff company has given credit to the defendant for aforestated cheque for an amount of Rs.16. It is important to note that in the affidavit-in-rejoinder filed by the plaintiff, there is no specific denial of the facts that the plaintiff has received an amount of Rs.16 lacs over and above the earlier payment of Rs.59,50,000/- towards the full and final payment of its dues. 4. In the light of the above facts and circumstances, I am of the opinion that there are triable issues and disputed questions of fact involved in the suit, and therefore the defendant is entitled to grant of unconditional leave to defend the suit. Hence, I proceed to pass following order. : O R D E R: (1)The defendant is granted unconditional leave to defend the suit. (2)The suit is transferred to the list of “commercial causes suits”. (3)The defendant shall file its written statement within the period of eight weeks from today. (4)Summons for Judgment stands disposed of. (R.V. MORE, J.)