1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. SUMMONS FOR JUDGMENT NO.487 OF 2007 IN SUMMARY SUIT NO.1397 OF 2007 Radhaballabh Silk Mills Ltd. ...Plaintiff. Vs. G. Fabs Automotive (India) Pvt.Ltd. ...Defendant. .... Ms.Manorama Mohanty i/b. S.K. Srivastava & Co. for the Plaintiff. Mr. S.D. Mogre with Mr. U.G. Jaguste for the Defendant. ..... CORAM :DR.D.Y.CHANDRACHUD, J. March 11, 2008. P.C.: The suit has been instituted under Order 37 of the Code of Civil Procedure, 1908, for the recovery of the price of goods sold, supplied and delivered under 51 invoices. The invoices are between 10th July 2004 and 7th June 2005. The suit was instituted on 22nd March 2007 within limitation. The total amount due under the 51 invoices is Rs.11,55,187/-. Interest has been claimed by the Plaintiff at the rate of 18% per annum thereon. In paragraph 7 of the affidavit in reply, the defence is that 2 the goods which were supplied were sub-standard; some were on approval basis; and that the Defendant was not liable to pay in respect of the material delivered. It is important to note that the goods were supplied in 2004 and 2005. This defence in paragraph 7 of the reply has come for the first time in November 2007. There is no complaint in regard to the quality of the goods at any stage prior thereto. The next aspect of the defence which needs to be mentioned is that according to the Defendant, the payment of Rs.3,82,595/- was made in respect of the invoices at Sr. Nos.1 to 21. In paragraph 5 of the Plaint, it has been averred that a payment of Rs.1 lakh was effected by three cheques. In so far as the invoices between Sr. Nos.21 to 37 are concerned, the Defendant claims that an amount of Rs.3.57 lakhs was settled/adjusted against an amount which was payable by a third party, M/s.Autobags. At Exhibit 2A to the reply, is an e-mail of the Defendant's Officer to M/s.Autobags stating that the money which was due to the Defendant by the aforesaid third party would be adjusted against the dues of the 3 Defendant to the Plaintiff. In fact, the e.mail at Exhibit 'A' would show that there is an admission that there are dues outstanding by the Defendant to the Plaintiff. The third defence is that against the invoices at Sr. Nos.37 to 51, the goods which were supplied were of a sub-standard quality and parts of the goods were received on an approval basis. The goods, according to the Defendant, remained to b sold. According to the Defendant goods worth Rs.1,38,148/- and Rs.1,54,799/- respectively are to be returned to the Plaintiff. Now, it is significant that this defence has not been raised prior to the filing of the reply on 30th November 2007. The goods were supplied between 10th July 2004 and 7th June 2005. In the ordinary course of things if the goods were to be returned for the reasons as alleged, the Defendant would have immediately called upon the Plaintiff to take back the goods. This was not done. Therefore, it would appear that the defence which has been raised, is prima facie, an after thought. The Defendant has contended that the Plaintiff is not entitled to interest. On the other hand, in the rejoinder, the Plaintiff has relied upon a letter dated 10th September 2005 of the Defendant remitting interest at 13% per annum. The Plaintiff has claimed interest at the 4 rate of 15% per annum. This aspect of the matter would have to be borne in mind at the time of the final order to be passed in the Summons for Judgment. The Defendant accepted the delivery between July 2004 and June 2005. The defence which is sought to be urged at this stage is merely an excuse to avoid the payment of outstanding dues of the Plaintiff. However, in order to furnish the Defendant an opportunity of leading its defence at the trial of the suit, it would be appropriate to grant leave to defend the suit subject to a condition of deposit. The principal amount which is due under the invoices is Rs.11,55,187/-. Leave to defend is granted to the Defendant subject to the deposit of an amount of Rs.10 lakhs within a period of four weeks from today. The amount on deposit shall be invested in a fixed deposit of a Nationalised Bank by the Prothonotary & Senior Master to be renewed periodically thereafter during the pendency of the suit. The Summons for Judgment is accordingly disposed of. ......