1 30 sj 433.09.doc srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 433 OF 2009 IN SUMMARY SUIT NO. 2104 OF 2009 Ankit Jhaveri .. Plaintiff -versus Store One Retail India Ltd. .. Defendant. Mr. Sandeep Parikh a/w Ms. Punita Soni and Ms. Kunti Jhaveri i/b Bilawala & Co. for the Plaintiff. Mr. Rohan Kelkar i/b Kartikeya & Associates for the Defendant. CORAM: S.C.DHARMADHIKARI, J. DATED: 4TH OCTOBER, 2010 P.C. 1 The Plaintiff has filed the suit for claiming a decree in the sum of `3,82,664.17 paise as per particulars of claim Annexure ‘B’ to the plaint. 2 It is stated that the particulars point out the amount due and payable as principal sum for a period April 2007 to April 2008, and for the month of July 2008. 3 It is stated that the suit is filed on a written contract as evidenced by the purchase orders, delivery challans and invoices, details of which are listed at paragraph 4 and 5 of the plaint. 2 30 sj 433.09.doc 4 A separate compilation of each of the purchase order, delivery challan and bill is filed in court. 5 It is stated that the Plaintiff supplied, delivered and sold the goods covered by these documents to the defendant’s predecessor and later on the defendant. 6 The bills were raised and the defendant was reminded to pay the sum but there was no response, therefore, it is stated that when there is no dispute about the quality and quantity of goods nor the sum payable, then, there was no reason for withholding the payments. 7 The advocate’s notice had been sent. The details thereof are set out in the plaint para 8 and it is stated that the suit claim falls under Order XXXVII of the Code of Civil Procedure as it is based on a written contract evidenced by the above documents. 8 In the reply to the Summons for Judgment, firstly it is contended that this court has no jurisdiction to entertain and try the suit because the entire cause of action has arisen at Delhi. This defence need not detain me as much as the defendants do not 3 30 sj 433.09.doc dispute that although their registered office is at New Delhi, they have branch office at Mumbai. Further, the Plaintiffs have pointed out this aspect in the plaint in para 12 and have stated that the part payments are made from the office at Mumbai and the amounts due and payable under the invoices are also payable to the Plaintiffs at Mumbai. They have obtained leave under clause XII of the Letters Patent. This Court has territorial jurisdiction to entertain and try the suit. It is then contended that the payment of all invoices, post April, 2007 were made from different bank accounts maintained by the defendants with its bankers which include Yes Bank, Mumbai, HDFC Bank, Mumbai and CBP, Mumbai. The extract of the account with one of the banks has been set out. Therefore, it is contended that the entire sum allegedly due and payable has been paid in full. There is nothing due and payable. It is then contended that the Plaintiff has not shown any document nor placed anything on record to show as to how it is related to J.B. Manufacturing Company and how he is a sole proprietor thereof. 9 It is therefore, contended that triable issues have been raised and the defendant is entitled to unconditional leave to defend. 4 30 sj 433.09.doc 10 The Plaintiffs have clarified that they have received amounts from the defendants through their various banks and the payments are duly reflected in the Plaintiff’s account with Canara Bank. There is no question of therefore disputing the receipt of these amounts. However, the specific case is that the suit bills have remained unpaid. The bills as set out in paragraphs 4 and 5 of the plaint have not been paid and the statement Annexure ‘C’ to the affidavit in reply does not demonstrate as to how payments under these invoices have been made. 11 The Plaintiffs have pointed out in the rejoinder as to how each of the entries in Annexure ‘C’ do not relate to the transactions covered by the suit bills/invoices. 12 Further, in dealing with the plea that all documents namely, purchase orders and delivery challans are not produced, the Plaintiffs have pointed out in the rejoinder that they have in their possession and they rely upon purchase orders, delivery challans, invoices/bills and the compilation in that behalf is produced. 13 From a reading of the entire material with the assistance of the counsel appearing for parties it is demonstrated that this is 5 30 sj 433.09.doc not a suit, as projected by the defendant, on account. This is a suit based on a written contract as evidenced by specific purchase orders, delivery challans and invoices. The details thereof are set out in the plaint and the compilation of the documents produced by the plaintiffs. In relation thereto, despite the goods being received without any complaint, the payments have not been forthcoming. The attempt to show that the payments have been made in full and reliance on Annexure ‘C’ to the affidavit-in-reply would show that the payments are in relation to unspecified bills. In any event, from the same it is not even prima facie demonstrated that they are in connection with the suit bills/invoices. In such circumstances, if the Defendants are desirous of making good their case of having paid the amounts allegedly due and payable in full, then they must be put to some terms. Accordingly, there will be a conditional leave to defend the suit. On the Defendant depositing a sum of `3,80,000/- in this court within a period of eight weeks from today, the suit shall stand transferred to the list of commercial causes with usual leave to file written statement, discovery and inspection. In default, all consequences in law shall follow. 14 Summons for Judgment is allowed accordingly. (S.C.DHARMADHIKARI, J.)