1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIGINAL SIDE SUMMONS FOR JUDGMENT NO.122 OF 2008 IN SUMMARY SUIT NO.3037 OF 2007 Harilal & Co. a partnership firm duly registered under the provisions of the Indian Partnership Act, 1932, having their office at 18, Rohit Chambers, S.A. Brelvi Road, Fort, Mumbai-400 001. .... Plaintiffs - Versus - Gammon India Limited, a Public Limited Company duly incorporated under the provisions of the Companies Act I of 1956 having its registered office at Gammon House, Veer Savarkar Marg, Prabhadevi, Mumbai - 400 025. .... Defendants S/Shri Chirag Shah a/w A.A. Jain for the Plaintiffs. S/Shri Karl Shroff a/w Subodh Kurdukar for the Defendants. 2 CORAM: A.P. BHANGALE, J. RESERVED ON : MAY 03, 2010 PRONOUNCED ON: MAY 06, 2010 JUDGMENT: 1. This summons for judgment is taken out on 2-4-2008 in Summary Suit No.3037 of 2007 which was instituted on 12-10-2007 under Order XXXVII of the Civil Procedure Code. 2. The case of the plaintiffs, briefly stated, is that, during the period between October-December, 2004 the plaintiffs, a duly registered partnership firm, sold, supplied and delivered goods valued at Rs.4,31,377.98 under four different invoices which were received, acknowledged and utilised by the defendants. The defendants failed and defaulted to pay the price of the goods delivered. 3. On on about 23-3-2006, the plaintiffs demanded the dues but the defendants failed to pay the same. 4. Summons for judgment taken out by the plaintiffs on 2-4-2008 is resisted on the 3 ground that the suit is not maintainable as a summary suit under Order XXXVII of the Civil Procedure Code and that the plaintiffs have suppressed material facts from the Court. It is also contended that there was no agreement between the parties for payment of interest. The defendants, therefore, prayed for unconditional leave to defend, pleading that there is substantive defence to resist the suit as instituted. 5. Heard submissions at the bar. In support of his submissions, learned counsel for the plaintiffs has placed reliance on a Full Bench decision of this Court in Jyotsna K. Valia v. T.S. Parekh & Co. {2007 (3) Bom.C.R. 772 (FB)} as well as the decisions of learned single Judges in Maharashtra Paper Trading Company v. Packers India & Ors. {CDJ 1999 BHC 282}, Indian Rayon and Industries Ltd. v. Sirohya Enterprises {CDJ 1991 BHC 264 = AIR 1992 (Bom) 60}, Bombay Mercantile Co-operative Bank Limited v. Akberali & Sons and others {CDJ 1994 BHC 057 = 1996 (1) Mah.L.R. 77}} and Wolstenholme International Limited v. Twin Stars Industrial Corporation {CDJ 2001 BHC 1123 = 2001 (4) BCR 114}}. Further, both the learned counsel for the plaintiffs as well as for the 4 defendants have placed reliance on a decision of the Supreme Court in M/s. Mechalec Engineers & Manufacturers v. M/s. Basic Equipment Corporation {AIR 1977 SC 577} and more particularly the para 8 thereof. The para 8 of the said decision reads thus: 8. In Sm. Kiranmoyee Dassi v. Dr. J. Chatterjee, (1945) 49 Cal WN 246 at p.253, Das, J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by Order 37, C.P.C. in the form of the following propositions (at p.253): (a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend. (b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend. (c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and 5 immediately make it clear that he had a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff s claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security. (d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend. (e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence. 6. Considering the nature of the suit claim and rival contentions advanced at the bar 6 and so also the ruling by the Supreme Court in M/s. Mechalec Engineers case (supra), I think the contentions in defence prima facie appear bona fide and cannot be overlooked. The defendants have raised contentions attacking the plaintiffs case regarding overcharging of goods, suppression of facts, fraudulent approach, challenge to jurisdiction, limitation, non-obtaining leave under Clause 12 of the Letters Patent, etc.. In my view, the case of the defendants would fall in category (c) above as the defendants may be able to substantiate their defence and may successfully resist the suit claim. Defence, if accepted, may go to root of the suit. Hence, in the facts and circumstances of the case, I pass the following order: O R D E R (a) The summons for judgment is rejected. (b) Conditional leave to defend is granted. The defendants shall co-operate for early hearing and disposal of the suit by filing written statement, latest within eight weeks. The trial be heard as expeditiously as possible and in any event within three 7 months upon the date of framing issues. Sd/- (A.P. BHANGALE, J.)