1. Heard.

2. This is a Summary Suit for recovery of a sum of Rs.4,39,585/- with further interest at the rate of 21% p.a. on the principal sum of Rs.3,82,096/- from the date of filing of the suit till realisation and the costs.

3. The plaintiff has filed suit for unpaid price of goods in the form of Impact Modifier Kane Ace B-31. In pursuance of the purchase order placed by the defendants, the goods were delivered along with invoices, whose receipt is not disputed by the defendants. The suit is filed as a Summary Suit on the basis that the invoices are in the form of a written contract as contemplated by Order XXXVII of the Code of Civil Procedure. The goods were delivered as follows :

Sr. Date Invoice No. Quant- Corr. Del. D.Chalan

No. -ity Purchase Chalan Date

supplied Order No. No.

in kg.

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1. 3.11.04 670/04-05 500 R-2004060 662 3.11.04

0312

2. 9.11.04 695/04-05 1000 R-2004110 687 9.11.04

0746

3. 13.5.05 175/05-06 500 R-2005040 173 13.5.05

0094

4. 28.5.05 227/05-06 300 R-2005050 225 28.5.05

0200

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According to the plaintiff the Defendants are liable as follows :

Sr. Invoice No. Amount Due date No. of Interest @ 21%

No. & date days p.a. for

old as delayed

on period

19.11.05 (19.11.05)

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1. 670/04-05 79040.00 18.12.04 336 15280.00

3.11.04

2. 695/04-05 163280.00 24.12.04 330 31001.00

9.11.04

3. 175/05-06 87360.00 27.6.05 145 7288.00

13.5.05

4. 227/05/06 52416.00 12.7.05 130 3920.00

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Total 382096.00 57489.00

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Principal Amount Rs.3,82,096.00

+ Interest Amount

(till 19.11.2005 Rs. 57,489.00

----------------------

Total amount Rs.4,39,585.00

==============

The plaintiff has filed the purchase order and the corresponding invoices and the delivery challan of the consignor for the aforesaid amount. The said documents are on record and are not in dispute. The original documents have been filed by the plaintiff along with the List of Documents, and the same are on record. At the foot of each of the invoice, the

following terms and conditions are produced:

(1) Our risk and responsibility are over after goods leaves our premises.

(2) Goods once sold will not be accepted back.

(3) Interest @ 21% will be charged on overdue payments.

(4) Any complaints regarding supplies should be notified within three days.

(5) Subject to Mumbai Jurisdiction.

4. The main submission of Mr. Punjabi, learned counsel for the defendants is that the summons for judgment cannot be granted since the suit cannot be treated as a summary suit under Order XXXVII. According to Mr. Punjabi, the suit is not based on any written contract and cannot be therefore termed as the summary suit. Order XXXVII Rule 2 reads as follows:

suits.-(1) A suit, to which this Order applies, may, if the plaintiff desires to proceed hereunder, be instituted by presenting a plaint which

shall contain,-

(a) a specific averment to the effect that the suit is filed under this Order;

(c) the following inscription, immediately below the number of the suit in the title of

the suit, namely:-

“(Under Order XXXVII of the Code of Civil Procedure, 1908)"

(2) The summons of the suit shall be in Form No.4 in Appendix B or in such other Form as may, from time to time, be prescribed.

(3) The defendant shall not defend the suit referred to in sky-blue (1) unless he enters

an appearance and in default of his entering an appearance the allegations in t