1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 474 PF 2007 IN SUMMARY SUIT NO. 2425 OF 2007 Yash Enterprises .. Plaintiff V/s Prashanth Projects Ltd. .. Defendant Mr.H.V. Chande for the plaintiff. Mr.R.A. Shaikh for the defendant. CORAM : D.G. KARNIK, J. DATE : 5th MAY 2009 P.C. : 1. Heard the learned counsel for the parties. 2. This summons for judgment is taken out by the plaintiff for recovery of the price of the goods sold, supplied and delivered to the defendant. 2 3. Though the summons for judgment was served on the defendant on 2nd November 2009, which the learned counsel for the defendant admits, the defendant has not filed any application for leave to defend nor has he filed affidavit in reply. Under sub-rule (1) of Rule 6 of Order 7 of the Code of Civil Procedure, the averments in the plaint are deemed to be admitted and the plaintiff is entitled to a decree for the claim in the suit. 4. Learned counsel for the defendant, however, submitted that he may be permitted to show that even on the plaintiff’s own pleadings the plaintiff is not entitled to a decree. He is allowed to do so. 5. Counsel for the defendant firstly submitted that there was no agreement to pay interest and as such the claim for interest is not covered under Order 37 of the Code of Civil Procedure. In response, the learned counsel for the plaintiff forthwith gives up the claim for interest prior to the date of filing of the suit. In view of a judgment of the Full Bench, the plaintiff is allowed to do so. 6. There is no dispute that the defendant placed the purchase orders on the plaintiff. Copies of the purchase order are produced at Exhibits B- 1 to B-11. As per the purchase orders, the plaintiff supplied the goods and sent invoices to the defendant. Copies of the invoices are produced at Exhibits C-1 to C-12. The plaintiff has also produced on record the lorry 3 receipts of dispatch. The plaintiff demanded the payment by its advocate’s notice dated 29th September 2006. By its reply dated 3rd October 2006, the defendant admitted receipt of 10 out of 13 supplies made by the plaintiff. It however contended that it had not received the goods to the extent of Rs.1,04,362/- covered by invoices. The defendant has clearly admitted receipt of the goods under 10 invoices. Regarding 3 dispatched invoices, the defendant has not filed any affidavit in reply denying receipt of the goods. Hence the receipt of the goods in respect of the 3 invoices deemed to be accepted. 7. The claim of the plaintiff includes the claim for sales tax as Form-C was not supplied. In the plaint, the plaintiff has averred that the defendant has not supplied the Form-C. Hence, the plaintiff was required to pay sales tax. Those averments are not denied by the defendant. 8. For the reasons stated above, in my view, the plaintiff is entitled to a decree in respect of the entire principal sum claimed. The plaintiff has given the claim for interest prior to the suit. The plaintiff is entitled to the interest from the date of the suit under section 34 of the Code of Civil Procedure. Hence, I pass the following order: ORDER (a) The summons for judgment is partly allowed. The suit is decreed with costs. The defendant shall pay to the plaintiff a sum of 4 Rs.19,75,749.74 p. together with interest thereon at the rate of 12% per annum from the date of the suit till payment within 6 weeks from today. (D.G. KARNIK, J.)