1 sj106-11 vai IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.106 OF 2011 IN SUMMARY SUIT NO.44 OF 2011 M/s.Pacific Exim ....Plaintiff V/s. Sadaf Steel (I) Pvt. Ltd. & Anr. ....Defendants Mr.Dipen Furia i/b Niranjan & Co. for the Plaintiff. Mr.R.A. Shah i/b Mansukhlal Hiralal & Co. for the Defendants. CORAM : S.J. VAZIFDAR, J. DATE : 18TH JULY, 2011. P.C. :- 1. The suit is filed to recover a sum of Rs.4,73,580/- together with interest at 24% p.a. on Rs.4,17,136/-. 2. Defendant No.2 is only the director of defendant No.1 and therefore, is not liable for the claim in the suit. The reference hereafter to the defendant is to defendant No.1. Defendant No.1 admits having executed an agreement dated 1.5.2010 for the sale of melting scrap by the plaintiff to the defendant for a sum of US $ 32,500/-. The plaintiff contends that it delivered the said goods and raised a commercial invoice dated 12.5.2010, the receipt whereof is accepted by the defendants. The defendant made part payment between 15.5.2010 and 2 sj106-11 6.7.2010 leaving the amount claimed outstanding. 3. The plaintiff by a letter dated 31.8.2010 set out the facts and demanded the payment with interest at 24% p.a. There was no reply from the defendant. 4. The defendant therefore admits the transaction and that the amount claimed has not been paid to the plaintiff. 5. The defence is that there was a short supply in respect whereof two debit notes were raised. It is further contended that the quality and the quantity in respect of a part of the consignment was not as stipulated in the agreement. A debit note for the same had also been raised. The aggregate value of the two debit notes in respect of the alleged short supply is Rs.1,27,627/-.The debit note regarding the difference in quantity is in the sum of Rs.1,66,692/-. 6. The plaintiff denied having received the debit notes. It is doubtful that the debit notes were sent. There is no acknowledgment in respect of the three debit notes. Even after the debit notes dated 3.7.2010 were allegedly delivered to the plaintiff, part payments were made, the last being on 6.7.2010. There was no reply to the plaintiff’s advocate notice demanding payment. This, he stated, was inadvertent. 7. In so far as the debit note regarding the difference of quantity is concerned, there is no defence. Admittedly, defendant No.1 approved the goods and never rejected the same or offered to return the same. Defendant No.1 was not entitled to retain the goods and 3 sj106-11 refuse payment. The principal sum claimed is Rs.4,17,136/-. I will give credit in respect of the debit notes for the difference in quantity. Even so, the plaintiff is entitled to the difference between the balance payment of Rs.4,17,137/- and the value of the two debit notes aggregating to Rs.1,27,627/- i.e. Rs.2,89,509/-. 8. The agreement does not provide for interest. However, interest was demanded by the plaintiff’s advocates notice dated 31.8.2010. The plaintiff is therefore, entitled to interest from that date. I however, intend restricting interest to 15% p.a. till the date of filing of the suit and thereafter at 12% p.a. 9. In the circumstances, the summons for judgment is made absolute and the suit is decreed in the sum of Rs.2,89,509/- together with interest at 15% p.a. from 31.8.2010 till the filing of the suit and thereafter at 12% p.a. till payment and/or realization. 10. Unconditional leave in respect of balance dues. The plaintiff shall be entitled to claim higher interest than fixed by me even on the principal sum decreed by me.