( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.337 OF 2008 SUMMONS FOR JUDGMENT NO.337 OF 2008 SUMMONS FOR JUDGMENT NO.337 OF 2008 IN IN IN SUMMARY SUIT NO.104 OF 2006 SUMMARY SUIT NO.104 OF 2006 SUMMARY SUIT NO.104 OF 2006 Ratan Umesh Sanil ...Plaintiff V/s. Holistic Remedies Pvt. Ltd. ...Defendants Mr.K.H. Modi i/b. M/s.G.C. Poojary & Co. for the Plaintiff. Mr.Sandip S. Jinsiwale for the Defendants. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 24th November, 2008. DATED : 24th November, 2008. DATED : 24th November, 2008. P.C.: P.C.: P.C.: 1. The Suit is filed for recovery of monies for goods sold and delivered. The amount unpaid is to the extent of 25% of the invoice cost. The defendants have by letter dated 4th May, 2005 indicated to the plaintiff that 25% amount is deducted from the invoice cost pursuant to the discussion in person with Mr.Umesh Sanil. Defendants expected plaintiff to issue credit note to the extent of Rs.1,70,000 and odd amount being 25% of the invoice value. 3. According to the defendants it was agreed that ( 2 ) the plaintiff would give them discount of 25% and that is how the lesser amount was sent by the defendants by various cheques (23 Nos.) and therefore there was no reason for the plaintiff to file this suit for recovery of Rs.1,70,000 and odd amount calculated with interest thereon. 4. In the course of argument, the learned Counsel Mr.Jinsiwale appearing on behalf of the defendants submitted that the conduct of the plaintiff, consistently if seen, goes to show that the plaintiff accepted the various cheques for lesser amounts and those amounts sent were 25% less than respective invoice value which goes to confirm the stand of the defendants that it was agreed that discount of 25% would be offered by the plaintiff. According to the defendants, if the defendants had paid lesser amount it was necessary for the plaintiff to lodge protest at the respective dates and then claim the full amount and according to the learned Counsel as plaintiff has not done so, the case of the defendants is required to be accepted as regards the discount. 5. I have tested this argument with reference to the affidavit-in-reply filed on behalf of the defendants. In the first place if it was the case of the defendants that an agreement was arrived at ( 3 ) between the plaintiff on one hand and the defendants on the other, it was necessary for the defendants to plead a specific defence giving therein the particulars such as the parties who were present at the time of negotiations, the date and the place and then give enough particulars to show that between the plaintiff and the defendants, which are limited companies / proprietorship, agreement was arrived at. No such pleadings are found in the affidavit-in-reply except stating that an agreement has taken place. It is seen that the plaintiff is a proprietorship firm whereas defendants is a limited company. If this be so, it was necessary for the defendants to specifically plead in the affidavit-in-reply as to which employee has on behalf of the defendants met the proprietor of the plaintiff and entered into the negotiations. In my view, in the absence of these particulars, it is difficult to accept the case of the defendants that it was agreed between the plaintiff on one hand and the defendants on the other that the discount of 25% was agreed to be given. It is true that the plaintiff went on accepting cheques as and when they were sent and that the said cheques appear to be of a lesser amounts. It is true that the plaintiff has not protested by writing to the defendants as to why the cheques of lesser amounts have been sent. In my view, even if this is the ( 4 ) conduct of the plaintiff, that by itself does not, in my view, raise a triable issue between the plaintiff and the defendants on the question of granting of discount by the plaintiff because the defendants have failed to bring on record the reasonable material that the agreement was arrived at between the parties as regards discount of 25% by giving specific price. It was argued by the learned Advocate for the defendants that the plaintiff never claimed interest on the amount namely Rs.1,70,000/- and odd. Hence the defendants should be granted unconditional leave as according to them, there is no provision for interest. This argument cannot be accepted because invoices do specifically mention that the interest would be charged @18% if payments are followed 30 days after the date of the invoice. In my view, this clause appearing on the invoice is a justification for claiming interest. To that extent also, this argument is required to be rejected. 6. In view of the above, defendants have to be put to terms. Considering the amount involved in the matter and the point in question, I am of the view that the defendants can be called upon to deposit a sum of Rs.1,50,000/- to enable them to defend the suit. Hence the order :- ( 5 ) O R D E R O R D E R O R D E R i) Upon defendants depositing in this court a sum of Rs.1,50,000/- on or before 7.1.2009, defendants are permitted to defend the suit. ii) Defendants to file written statement on or before 12.1.2009 after depositing the amount. iii) After defendants deposit the aforesaid amount of Rs.1,50,000/-, the Prothonotary and Senior Master is directed to invest the amount in any nationalised bank in the fixed deposit, initially for a period of one year and, thereafter, continue to renew the same from time to time till further orders from this court. 5. Suit set down for directions on 12.1.2009. Summons for judgement stands disposed off in above terms with no order as to costs. (R.Y. GANOO,J.) (R.Y. GANOO,J.) (R.Y. GANOO,J.)