J K ENTERPRISE Vs. PRITHVIRAJ RATANCHAND MEHTA

JUDGEMENT

(1.) THE short point raised in the present civil revision application is regarding the correctness or otherwise of the order dated 30th January 1989 granting conditional leave to defendant No. 1 in Summary Suit No. 1785 of 1988. The said Summary Suit No. 1785 of 1988 was instituted by the first respondent/plaintiff in the City Civil Court, Bombay, claiming a sum of Rs. 45,410/- due under three bills as under :--- (1) Bill No. 101, dated 09-01-85 = Rs. 19,482. 00. (2) Bill No. 105, dated 16-01-85 = Rs. 09,702. 00. (3) Bill No. 108, dated 18-01-85 = Rs. 09,714. 00. The contention of the plaintiff is that the goods were delivered for processing on a date earlier than the date mentioned on the bill as the date of the receipt of the goods by the defendant No. 1. The plaintiff himself had sent the first notice on 16th April 1985, followed by the second notice, sent through his Advocate, on 5th September 1985. Unfortunately, it appears that there was no response from the first defendant to either of these two notices. The suit was filed on 8th January 1988. Then summons for judgment was taken out on 8th July 1988. The first defendant raised certain contentions, some of which were technical, which need not be gone into at this stage. As far as the merits are concerned, the contentions sought to be raised were that the goods were found to be of an inferior quality and suffered from some weaving defects and hence, the defendants were either not liable to pay the amount claimed or were liable to pay the lesser amount. The fact that the goods were initially delivered to the defendants as per the details mentioned in the 3 bills, referred to above, were not disputed. The fact that the goods were supplied for processing at the particular place, as per the instructions of the defendants, could also not be seriously disputed. What was disputed was the fact that the goods supplied were of inferior quality which necessitated certain adjustment.

(2.) RELYING upon these pleas, the learned trial Judge came to the conclusion that as far as the first defendant was concerned, the defence appeared to be illusory, sham and moonshine and hence, under the circumstances it was not a case for grant of unconditional leave. The learned trial Judge, therefore, directed the defendant No. 1 to deposit a sum of Rs. 25,000/- as also to further deposit the admitted claim of Rs. 5718/-, with liberty to the plaintiff to withdraw the said amount of Rs. 5718/- only. Being aggrieved by this order dated 30th January 1989, the present C. R. A. is filed by the 1st defendant.

(3.) MR. Shah, the learned Counsel appearing for the petitioner, has raised two principal contentions. In the first place, Mr. Shahs contention is that this is a case falling under Order 37, Rule 2, sub-rule (2 ). There has therefore, necessarily to be a written contract or an enactment, as indicated in the opening para of sub-rule (1) of Rule 2 of Order 37. According to the learned Counsel inasmuch as the claim in the present suit is to recover the price of the goods supplied to the defendants, it would not be a claim under a written contract or an enactment. On the contrary, Mr. Parekh, the learned Counsel appearing for the plaintiff, has invited my attention to an un-reported judgment of this Court in Summons for Judgement No. 23 of 1976, in Suit No. 1405 of 1975, decided on 9th April 1976. The facts in the said case of (Jayshree Chemicals) decided on 9th April 1976, were somewhat similar to the facts in this case; where in respect of goods supplied to the defendants, the plaintiffs had relied upon the challans, receipt at the foot there of acknowledging the receipt of the goods and the bills subsequently sent by the plaintiffs mentioning the price, the receipt whereof was not denied, as also the subsequent conduct of the parties. A perusal of the said judgment would show that the words "arising on a written contract or on an enactment" have been given an extended meaning as under :---