1 mp t IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDEMENT NO.349 of 2007 IN SUMMARY SUIT NO. 103 of 2007 M/s.Eden Air Fresheners Pvt.Ltd. .. Plaintiff versus M/s.Khandelwal Laboratories Pvt.Ltd... Defendant ... Mr.C.N. Chavan for the plaintiff. None for the defendants. CORAM : D.G. KARNIK, J DATED : 21st April 2009 P.C.: 1. This Summons for Judgement is taken out by the plaintiff in a suit filed by it for recovery of the price of the goods supplied. By filing an affidavit in reply dated 28th September 2007, the defendant has opposed the Summons for Judgement and prayed for unconditional leave to defend the suit. 2 2. At the hearing of the Summons for Judgement, plaintiff through its counsel gives up the claim for interest prior to the date of filing of the suit. 3. The case of the plaintiff is that the defendant placed an order on the plaintiff for supply of 25,500 numbers of car air fresheners at the price of Rs.20/- per piece. A copy of the purchase order is filed by the plaintiff at Exhibit-A to the plaint. The goods were to be supplied in three lots. The first lot was supplied and the price thereof was paid by the defendant. The second lot of 8500 nos. was supplied by the plaintiff to the defendant along with an invoice dated 18th May 2004. Copy of the invoice is at Ex.I. Despite demand, defendant failed and neglected to pay the price. Hence, plaintiff has filed the present suit. 4. By filing an affidavit in reply, defendant has contended that the goods supplied were defective. Clips used to break down while fitting the air freshner to the car. Plaintiff therefore had agreed to accept only 25% of the value i.e. Rs.42,500/- in full and final settlement of the price of the second lot of the goods. By filing affidavit in rejoinder, 3 plaintiff has denied this contention. No evidence has been produced by the defendant about the alleged agreement between the plaintiff and defendant or about the alleged defects in the goods. 5. There is no dispute that the goods were supplied by the plaintiff to the defendant. The goods were accepted by the defendant and utilised by it. In the circumstances, the burden of proving that the goods were defective, is on the defendant. The defendant does not have any material prima facie to show that the goods were defective. The defendant has also not produced any material to show even prima facie taht the plaintiff had agreed to accept only 25% of the price in full settlement. In the circumstances, defendant cannot be granted unconditional leave to defend the suit. 6. However, only by way of a concession, I am inclined to grant conditional leave to defend the suit subject to the defendant depositing the entire principal sum in the court. Accordingly, I pass the following order:- 7. Defendant is granted conditional leave to defend the suit subject to deposit of Rs.1,70,000/- being the principal sum of the value of the goods in 4 the court within four weeks. The plaintiff is permitted to withdraw the amount, if deposited, by furnishing security to the satisfaction of the Prothonotary and Senior master. If the amount is deposited within four weeks, the suit shall stand transferred to the list of commercial causes. The defendant shall then file written statement within ten weeks. 8. On failure of the defendant to deposit the amount within four weeks, plaintiff shall be entitled to apply. (D.G. KARNIK, J)