1 sj297-09.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO.297 OF 2009 IN SUMMARY SUIT NO.2368 OF 2007 Modern Lace House (Pvt) Ltd. .. Plaintiffs Versus Pragathe International (EDS) & Anr. .. Defendants Ms.Kavita Lalwani for plaintiffs Ms.Swati Sawant for defendants CORAM : S.C.DHARMADHIKARI, J. DATE : 9th November 2011. P.C.: 1] This is a summary suit filed by the plaintiffs against the defendants seeking to recover a sum of Rs.1,70,000/- as per the particulars of claim. 2] The plaintiff is a company whereas the defendant is carrying on business as a sole proprietor of second defendant. It is stated that the suit is filed on the basis of written contract as evidenced by delivery challans and invoices, details of which are set out in the plaint and it is contended that all the invoices were duly received. 2 sj297-09.doc They have not been disputed nor is liability denied. On the other hand in part payment a sum of Rs.25,000/- was forwarded and thereupon a further cheque for Rs.1,55,540/- dated 30th March 2006 drawn on Union Bank of India, Andheri (West), Branch being the balance sum as per the invoices came to be forwarded by the defendants. That cheque on presentation was dishonoured and details of the dishonour are then set out in the plaint. It is, therefore, contended that a demand notice was raised to make payment of the oustanding sum under the invoices and particularly that covered by the cheque but despite receipt of the notice, the defendants have failed to make payment. In such circumstances, the amount covered by the cheque is claimed and it being under Negotiable Instruments Act, 1881 interest at 18% per annum in terms of the said Act has also been claimed. 3] It is in such circumstances that Order XXXVII of Code of Civil Procedure, 1908 has been invoked by the plaintiffs. On the institution of the suit a writ of summons was duly served on the defendants. Thereafter, they have filed appearance of an Advocate. 3 sj297-09.doc In these circumstances, the present summons for judgement has been moved seeking a decree against the defendants. On the other hands defendants applied for leave to defend by filing their affidavit and what has been essentially contended therein is that the cheque was not dishonoured but payment thereof was stopped. That was stopped on the ground that at the time of making payment it was pointed out that the goods were defective. It was agreed that cheque would be treated as security and issue of quality of goods will be resolved between the parties. Therefore, this is not a case where there is an admitted liability. On the other hand, the cheque has been forwarded as security. Once the cheque was forwarded as security, then, there is no question of the same being presented or encashed. 4] In the rejoinder affidavit it has been pointed out by the plaintiffs that the story now introduced for the first time, cannot be accepted. There is no question of linking any payment and particularly that made on 27th July 2006 and 28th September 2006 with the suit claim because these payments were made in respect of 4 sj297-09.doc distinct invoices. The invoices pertaining to these amounts are referred to in the rejoinder and it is pointed out that there is no question of any payment being accepted in full and final settlement of the suit claim. In other words, the defendants purchased further goods and made payments and that is how the matter needs to be segregated and de-linked from the suit transaction. 5] In sur-rejoinder once again the same version is reiterated viz., that a sum of Rs.45,000/- which has been paid in the month of July and September 2006 was accepted in full and final settlement of the claim arising from the suit invoices. 6] Ms.Lalwani learned Advocate appearing on behalf of the plaintiffs pointed out as to how the claim in the suit arises out of four invoices whereas the sum of Rs.45,000/- is not linked to the invoices which are subject matter of the instant suit. On the other hand, as far as the claim in the suit is concerned, a part payment of Rs.25,000/- was made and for the balance sum a cheque was drawn in favour of plaintiffs which on presentation was dishonoured. For 5 sj297-09.doc all these reasons, the defence raised is not bonafide but vexatious and false and, therefore, a decree be passed in favour of the plaintiffs and against the defendants. 7] On the other hand, learned Counsel appearing for defendants submitted that the issue of inferior quality of goods was already raised and, therefore, accepting part payment, it was agreed that the cheque was to be retained as security until the issue is resolved to the satisfaction of the defendants. Further, if cheques were stated to have been issued in the month of March 2006 and dishonoured on presentation, then, there is no explanation as to why plaintiffs accepted Rs.15,000/- on 27th July 2006 and Rs.30,000/- on 29th March 2006. If this is clear case of amounts due under running account, then, the claim is not crystalised in any manner. For all these reasons, the suit is not maintainable as a summary suit and triable issues arise for consideration. Therefore, the summons for judgement be dismissed and unconditional leave to defend be granted. 6 sj297-09.doc 8] After having perused the plaint and the annexures so also the affidavits on record, I am of the view that the defendants have not raised any dispute with regard to the receipt of goods. They have also not disputed the contents of the invoices and delivery challans. The alleged version of inferior quality of goods has now been raised in answer to the notice. It is being raised for the first time by filing an affidavit in reply. If that is the case, then, defendants cannot accuse the plaintiffs of suppressing material and relevant facts. On the other hand there is explanation given by the plaintiffs in para 8 of the affidavit in rejoinder that in March 2006, plaintiffs supplied goods worth Rs.1,80,540/- and part payment of Rs. 25,000/- was made on 10th March 2006 and a further sum by cheque drawn on Union Bank of India for the balance sum of Rs. 1,55,540/- was duly forwarded on 30th March 2006. Prima facie, if indeed there was any understanding and discussion on the issue of inferior quality of goods, some communication would have been received from a prudent businessman. On issuance of cheque there would have been some written intimation with regard to the 7 sj297-09.doc presentation/ retention of the same. On the other hand, when the cheque was duly presented and dishonoured, there appears to be no communication and until the institution of suit, defendants have not come forward with the version that a sum of Rs.45,000/- was accepted in full and final settlement. On the other hand what the plaintiffs have pointed out by filing their affidavit in rejoinder is that a sum of Rs.45,-000/- is towards distinct liability and pertaining to a distinct transaction. They have mentioned details of said invoices as well. In these circumstances, this is a fit case where atleast the cheque amount needs to be secured. Once the suit invoice has been duly received and the contents thereof being not disputed till the affidavit in reply, then, all the more, this is a fit case for conditional leave being granted to defend the suit. In the light of this discussion, the following order would serve ends of justice:- 1. On the defendants depositing in this Court a sum of Rs. 1,55,000/- within a period of 16 (sixteen) weeks from today, leave to defend the suit is granted. In that event, written 8 sj297-09.doc statement be filed within twelve weeks from the date of deposit of the aforesaid sum and discovery and inspection be completed within that period. 2. In default, consequences in law to follow such as plaintiffs will be at liberty to apply for a decree for the claim in the suit. (S.C.DHARMADHIKARI, J)