Case Note & Summary
The plaintiff, M/s. Bombay Trading Co., a partnership firm manufacturing Ayurvedic products, filed a summary suit against the defendant, M/s. Jai Santoshi Maa Enterprises, for recovery of Rs. 11,32,569.54 with interest, based on an invoice dated 26 January 2008 for supply of 'Noorani Tel (Oil)'. The plaintiff claimed that the defendant did not pay despite a legal notice. The defendant filed an affidavit in reply, raising several defences: (a) the suit was filed by an alleged authorised signatory without proper authority and partners were not joined; (b) the suit was barred by limitation; (c) the goods were replacements for earlier defective goods sold under promotional schemes and no payment was due. The court considered the submissions and held that the defendant had raised triable issues which could not be decided in a summary manner. The court granted unconditional leave to defend, allowing the defendant to contest the suit on merits. The summons for judgment was dismissed.
Headnote
A) Civil Procedure - Summary Suit - Leave to Defend - Order 37 Rule 3 CPC - Defendant raised triable issues including lack of authority of plaintiff's signatory, limitation, and that goods were replacements not requiring payment - Court held that such issues require trial and granted unconditional leave to defend (Paras 5-8).
Issue of Consideration
Whether the defendant has raised triable issues entitling them to unconditional leave to defend in a summary suit under Order 37 of the Code of Civil Procedure, 1908.
Final Decision
The Summons for Judgment is dismissed. The defendant is granted unconditional leave to defend the suit. The defendant shall file a written statement within four weeks from today. Suit to be placed on the list of commercial causes.
Law Points
- Summary suit
- leave to defend
- triable issues
- Order 37 CPC
- authority to sue
- limitation
- replacement goods
Case Details
2012 LawText (BOM) (08) 105
Summons for Judgment No. 86 of 2011 in Summary Suit No. 2900 of 2010
Mr. R.A. Shaikh i/b Mr. Mohd. Muquim Khan for Plaintiff; Mr. Pankaj Kawali i/b Mr. Manoj M. Kandekar for Defendant
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Nature of Litigation
Summary suit for recovery of price of goods sold and delivered.
Remedy Sought
Plaintiff sought judgment against defendant for Rs. 11,32,569.54 with interest and costs.
Filing Reason
Defendant failed to pay for goods supplied under invoice dated 26 January 2008.
Issues
Whether the suit is maintainable without joining partners as co-plaintiffs and without proper authority of the signatory.
Whether the suit is barred by limitation.
Whether the goods were replacements for earlier defective goods and thus no payment was due.
Submissions/Arguments
Plaintiff submitted that goods were supplied and payment was not made despite notice.
Defendant submitted that the suit was filed without authority, barred by limitation, and the goods were replacements not requiring payment.
Ratio Decidendi
In a summary suit under Order 37 CPC, if the defendant raises triable issues, unconditional leave to defend must be granted. The court found that the defendant's defences regarding authority to sue, limitation, and the nature of the goods as replacements raised triable issues.
Judgment Excerpts
By this Summons for Judgment, the Plaintiff seeks that judgment be entered for the Plaintiff in this suit against the Defendant for Rs.11,32,569.54 and for interest and costs.
The Defendant through the Learned Counsel made the following submissions :- (a) The suit has been filed by Mr.Shiv Prasad Shukla claiming to be an authorised signatory of the Plaintiff without any authority of law... (b) The suit is barred by limitation... (c) The suit has been filed for recovery of price for the goods alleged to have been sold to the Defendant which were given by way of replacement...
Procedural History
Plaintiff filed Summary Suit No. 2900 of 2010. Defendant filed affidavit in reply. Plaintiff took out Summons for Judgment No. 86 of 2011. After hearing, the court dismissed the summons and granted unconditional leave to defend.
Acts & Sections
- Code of Civil Procedure, 1908: Order 37 Rule 3
