MAHARASHTRA PAPER TRADING COMPANY Vs. PACKERS INDIA

JUDGEMENT

(1.) THE Plaintiffs have filed a suit against Defendant No.1 which is a partnership firm. Plaintiffs have averred that Defendant Nos.2, 3 and 4 are partners of the 1st Defendant. It is the case of the Plaintiffs that the Defendants placed orders on them for goods. The said goods were supplied by the Plaintiffs to the Defendants. The Plaintiffs have relied on the Challans. The first bill is dated 12th May, 1988 and other is dated 5th June, 1988 in so far as the subject matter of the present suit is concerned. The first bill was payable on 24th June, 1988 and second on 18th July, 1988. The Plaintiffs issued to the Defendants 'C' Forms on 8th October, 1988 in respect of both the bills. The number of the bill is referred to in the 'C' Form as also the value of the material supplied. The Defendants apart from the said two bills were also owing to the Plaintiffs monies in respect of other bills in respect of which Plaintiffs have not filed any suit. It is the case of the Plaintiffs that the oral order coupled with the bills, Challans and the 'C' Forms would constitute agreement and as such the Plaintiffs are entitled to maintain the summary suit. In particulars of claim apart from the principal amount. Plaintiffs have claimed interest at 21% p a.

(2.) THE Plaintiffs have taken out Summons for Judgment. Defendants have been served. The Defendants have appeared. The Defendants have filed their reply to the Summons for Judgment. Various contentions have been raised by the Defendants. The Defendant No.2 has taken a contention that he is not a partner of the Defendant No.1 firm. That it is the HUF of which he is a Karta which is the partner. It is, therefore contended that the suit against Defendant No.2 is not maintainable. It is then contended that the suit is numbered in the year 1993. Summons for Judgment has been taken out in 1997 and consequently the Defendants are entitled to unconditional leave to defend under Rule 227 of the Original Side Rules. Thirdly, it is contended that there is no written agreement and consequently the suit cannot be treated as a summary suit and for that reason also the Defendants are entitled to unconditional leave to defend. It is also contended that the bills are dated 12th May, 1988 and 6th June, 1988 and in that light of the matter the suit is barred by limitation. At any rate it is contended that there was no agreement in writing in so far as the interest is concerned and even otherwise if the claim of the Plaintiffs is accepted that the commencement of limitation commenced from 24th June, 1988 and 18th July, 1988 than interest as claimed for anterior period would be barred by limitation. In addition on behalf of the Defendant Nos.1, 3 and 4 it is contended that Defendant No.2 not being a Partner could not have signed the 'C' Form on behalf of the partnership. It is then contended that some of the partners have not been joined for all these reasons, it is contended that the Defendants should be entitled to unconditional leave to defend the suit. Defendants have relied on the Judgment of a learned Single Judge in Central Bank of India v/s Femme Pharma Limited and Ors. AIR 1982 Bombay 67 to point out that if Summons for Judgment is taken out after such delay, the Defendants are entitled to unconditional leave to defend. Following this Judgment reliance is also placed on some other Judgments including Nijjar, J. in Summons for Judgment No 748 of 1996 in Summary Suit No.4283 of 1995 which has followed the Judgment in the case of Central Bank of India (Supra).

(3.) THE next contention is that there is no concluded contract. It is true that for a suit to be maintained as a summary suit it must fall within Order XXXVII rule 2 as amended by this Court. The question is whether the Challans and issuance of 'C' Forms would constitute a contract and/or agreement in writing. Various Judgments of this Court have taken a view that exchange of correspondence between the parties and/or orders placed and bills submitted and accepted would amount to an agreement based on which a summary suit would lie. In the instant no doubt the contract for goods was orally made. However, the goods were despatched and a Challan issued. That by itself could not have constituted an agreement in writing. However, what is relevant is that thereafter the Defendants have issued 'C' Form in favour of the Plaintiffs on 8th October, 1988 wherein they have referred to the Invoice number and the amount. The invoice coupled with the 'C' Form to my mind would constitute a contract. The Defendants have accepted the terms as contained in the invoice pursuant to the issuing of said invoice to the Defendants. There would therefore be a concluded contract and as such a summary suit would be maintainable. The said contention must therefore be rejected.