Chandka 1 SJ-129-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 129 OF 2010 IN SUMMARY SUIT NO. 37 OF 2010 Kamlaben G. Sanghvi ..Plaintiff versus Prima Steels Private Limited ..Defendant Mr. K. S. Tripathi for Plaintiff. None for Defendant. CORAM : DR. D. Y. CHANDRACHUD, J. 22 March 2011. P.C. : The Summons for Judgment has been taken out in a Summary Suit instituted under Order XXXVII of the Code of Civil Procedure 1908. The claim of the Plaintiff is in the amount of Rs.2,72,613.72. Interest has been claimed on the principal amount of Rs.1,96,000/- from the date of institution of the suit until payment. The Plaintiff sold, supplied and delivered goods to the Defendant under two invoices dated 12 and 16 July 2008. The invoices are annexed at Exhibits ‘A-1’ and ‘B-1’. The delivery challans in proof of delivery of the material were duly endorsed by the Defendant and Chandka 2 SJ-129-10 are annexed at Exhibits ‘A-2’ and ‘B-2’. The Plaintiff addressed notices dated 12 December 2008, 28 May 2009 and 30 September 2009 to which there was no reply. 2. In the affidavit in reply, the defence that is sought to be urged is that the goods which were supplied were defective and that the sheets were found to have scratches / black strips and waviness. The contention that there was a defect in the goods sold, supplied and delivered is completely untenable and lacking in substance. For one thing, no reply was addressed by the Defendant to any of the three notices of demand of the Plaintiff. Moreover as has been stated by the Plaintiff in rejoinder the material was sold and delivered to the Defendant between 9 and 16 July 2008. The Defendant made a part payment of Rs.4,00,000/- on 1 November 2008, of Rs.5,00,000/- on 17 February 2009 and Rs.1,00,000/- on 24 February 2009. These part payments were made respectively after 3 and 7 months of delivery. It is inconceivable that the Defendant would have made part payment in the face of the supplies being defective. The contention of the Defendant in paragraph 17 of the reply that the payment of Rs.1,00,000/- was made in full and final settlement is obviously an after thought because it is against the common course of events that the Defendant would make a payment which he now claims was in full and final settlement without a Chandka 3 SJ-129-10 receipt in that regard. The defence which is set forth is therefore clearly untenable. However, in order to furnish the Defendant an opportunity to set forth the defence at trial and to file a written statement, it would be appropriate to grant conditional leave to defend the suit. The invoices provide for the payment of interest at the rate of 24% per annum. Leave to defend the suit is accordingly granted, subject to the deposit of an amount of Rs.1,96,000/- within a period of four weeks from today. The Summons for Judgment is accordingly disposed of. (Dr. D. Y. Chandrachud, J.)