1 IN THE HIGH COURT OF JDICATURE AT BOMBAY ORDINARY ORIGINA CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 52 OF 2009 IN SUMMARY SUIT NO. 3521 OF 2008 Kishor J. Thakkar ......Plaintiff V. M/s Micro Mechanical Works & Ors .......Defendants Mr. D.M. Tailor for the plaintiff Mr. K.K. V. Kurup for the defendant s CORAM : A.A. SAYED, J. DATE : 7TH JULY, 2009. P.C. 1 The Summons for Judgment is taken out by the Plaintiff to enter the judgment in favour of the plaintiff against the defendants for a sum of Rs. 12,30,926.19 along with interest on the principal sum of Rs. 7,94,606.19 and further interest as per the particulars of claim annexed to the plaint. 2 The suit is based on 78 invoices and delivery challans for the supply of goods from 17-1-2006 to 10-3-2007. The delivery challans bear the signature of the defendants. The amount due have remained to be paid by the defendants to the plaintiff. The plaintiff had also addressed a notice through his Advocate dated 7-8-2008. According to the plaintiff the same has the same has not replied. This fact is disputed by the defendants and a 2 copy of the Advocate's reply dated 8-09-2008 is annexed to the affidavit-in- reply of the defendants. 3 In so far as receipt of the goods are concerned, the same are admitted. However, it is only in the defendant's Advocate's letter dated 8.9.2008 and in the affidavit-in-reply, it is stated that the goods were defective. In the said letter dated 8th September, 2008, it is stated that out of the amount of Rs. 7,94,606.19, goods to the extent of Rs. 5,47,637.99 were defective and that the defendants were ready and willing to pay the balance amount (Rs. 2,46,968.20). The learned Counsel for the defendant had pointed out that there is no agreement in respect of the interest and that in the plaint in some places interest at the rate of 24% p. a. is claimed and in some places interest at the rate of 18% p. a. is claimed and that in any event there was no interest agreed to be paid. 4 In view of the fact that the receipt of the goods supplied from January, 2006 to March,2007 has been admitted and that the case of the defendants that goods were defective has come out only belatedly and as afterthought in Advocate's notice in the year 2008 and in the affidavit-in- reply, prima facie the defence appears to be moonshine. Considering the facts and circumstances of the case, however, I am not inclined to completely shut out the Defendants from defending the suit. 5 Taking an over all view of the matter, in my opinion, the following order would meet the ends of justice. (i) The defendants are granted leave to defend the suit on the 3 condition that they shall deposit in this Court an amount of Rs. 5 lacs within a period of 8 weeks from today. (ii) The plaintiff shall be entitled to withdraw a sum of Rs. 2.5 lacs from the said deposit without any security. (iii) The balance amount shall be deposited by the Prothonotary and Sr. Master in a term deposit of a Nationalized Bank. (iv) In the event the aforesaid amount is deposited the suit would stand transferred to the list of commercial causes. The written statement be filed within a period of 30 days of the deposit being made. Affidavit of documents be filed within a period of 8 weeks. Discovery and Inspection of the documents within a period of 8 weeks thereafter. (v) In the event the amount is not deposited liberty to Plaintiffs to apply for further orders. 6 The Summons for Judgment to stand disposed of accordingly. A.A. SAYED J.