MANU/MH/1363/2007

Equivalent Citation: 2008(3)ALLMR367, IV(2008)BC 330, 2008(2)BomC R155, 2007(2)C TLJ432(Bom)

IN THE HIGH COURT OF BOMBAY

Summons for Judgment No. 432 of 2006 in Summary Suit No. 2411 of 2006
Decided On: 13.12.2007
Appellants: Jatin Koticha
Vs.
Respondent: VFC Industries Pvt. Ltd.
Hon'ble Judges/Coram:
S.A. Bobde, J.
Counsels:
For Appellant/Petitioner/Plaintiff: K.B. Dighe, Adv.
For Respondents/Defendant: P. Punjabi, Adv., i/b., Prakash Punjabi and Co.
Case Note:
Contract - Recovery - Section 70 of Contract Act, 1872 - Plaintiff had filed
Summary Suit for recovery of unpaid price of goods in form of Impact
Modifier Kane Ace B-31 - Hence, this Suit - Held, goods were delivered by
Plaintiff to Defendants and Defendants enjoyed benefit of that, therefore
they were liable under Section 70 of the Act to pay compensation in respect
of such goods to Plaintiff - Further, Section 70 laid that obligation of person
enjoying benefit of non-gratuitous act where a person lawfully did anything
for another person, or delivers anything to him, not intending to do so
gratuitously - Such other person enjoyed benefit thereof, latter was bound
to make compensation to former in respect of, or to restore, thing so done
or delivered - Thus, suit must be treated as a summary suit since it was
based on an enactment - Hence, Defendants were liable to pay sum with
future interest to Plaintiff - Suit disposed of.
Ratio Decidendi
"It is obligation on a person enjoying benefit of non-gratuitous to pay price
of goods if enjoys benefit thereof."
JUDGMENT
S.A. Bobde, J.
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

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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:

According to the plaintiff the defendants are liable as follows:

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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: 2. Institution of summary 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;
(b) that no relief, which does not fall within the ambit of this Rule, has been
claimed in the plaint; and
(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 the plaint shall be deemed to be admitted and the plaintiff shall
be entitled to a decree for any sum, not exceeding the sum mentioned in the
summons, together with interest at the rate specified, if any, up to the date
of the decree and such sum for costs as may be determined by the High
Court from time to time by rules made in that behalf and such decree may be
executed forthwith.
5. Now it is clear that there is no written contract signed by both the parties relied on
by the plaintiff. It is not the requirement of the law that it should be a written
contract signed by both the parties. What is necessary is that the suit should be
based on a written contract. That, one can find in this case, in the form of invoices
which were raised on the defendants along with delivery of the goods in pursuance of
each purchase order. The invoices, as stated above, contained the terms and
conditions. There is a clear parole acceptance of the invoice on the part of the
defendants. The defendants accepted delivery of the goods along with the invoice
without any demur or suggestion that they do not accept any of the terms whether

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pertaining to the rate, price, quantity etc. It makes no difference therefore that the
invoices are not signed by both the parties. I am of view that the invoices must be
treated as a written contract and the suit based on such invoices is a suit based on
the written contract. This view is fortified by the Madras High Court reported in The
Madras Law Journal Reports 1988 page 187 (Lucky Electrical Stores, by partner
Mahendra Kumar Shah and Anr. v. Ramesh Steel House by Partner Babulal 1988
M.L.J.R. 187, where the Chief Justice M.N. Chandurkar, rejected the contention
similar to the one applied by the defendants in this case. The relevant observation
reads thus:
...What is necessary for the purposes of this case is that a liquidated demand
in money must arise on a written contract. A written contract or a contract in
writing need not always be a contract signed by both parties. The Court of
Appeal in (T.A. Ruf and Co. Ltd. v. Pauwels) (1919) 1 K.B. 660, was called
upon to construe the words "contract in writing". The facts of that case were
that by contract dated 28th February, 1918 Pauwels had sold to Ruf and and
Company a quantity of soap. The terms of the contract were contained in a
sold note signed only by Pauwels. At the foot of the sold note were the words
"Please confirm the above". A dispute arose under the contract as to non-
delivery of part of the soap and was referred to arbitration in accordance with
the Clause contained in the note. In the award made by the arbitrators there
was a recital that "by a contract in writing made by Alphonse Pauwels with
T.A. Ruf and Co. Ltd., dated the 28th day of February, 1918, Alphonse
Pauwels contracted to sell and deliver" a certain quantity of soap to Ruf and
Co. at a certain price and that a dispute had arisen which was referred to
arbitration. By the award which was against the purchasers the purchasers
were directed "to pay the costs of the reference, arbitration and award,
including 361.15s. our fees and expenses in regard to the said arbitration, as
we consider that their conduct in not confirming in writing the contract was
probably the cause of the dispute". This award was sought to be set aside on
the ground that "it is bad in law and shows error on its face and shows
further that there was no legal contract binding on the parties". The
Divisional Court ordered the award to be set aside on the ground that on the
face of the award the arbitrators had treated as a contract in writing binding
upon both parties that which was signed by one of the parties only and was
therefore not a contract in writing. Ruf and Company appealed against this
judgment. Warrington, L.J., in his judgment referred to the fact that though
written confirmation was not sent by the purchasers, the arbitrators had
come to the conclusion that there was a parol acceptance by Ruf & Co. of the
terms of the sold note, and observed as follows:
"Taken in conjunction with the rest of the award they seem to me to
indicate that the arbitrators found that Ruf and Co." had confirmed
the contract though not in writing, and if so they may quite properly
refer to the contract as a "contract in writing". Although the
memorandum of it was signed by one party only.
Duke, L.J. in a separate judgment observed at page 670:
As to the suggestion which was made that the words "contract in writing"
import a contract made by means of a writing or writings signed by both
parties, 1 do not think the words necessarily have that meaning. A document
purporting to be an agreement may be an agreement in writing sufficient to

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 satisfy the requirements of an Act of Parliament though it is only verified by
the signature of one of the parties: (In Re Jones) (1895) 2 Ch. 719. Here the
question is one of a bargain for the sale of goods. I doubt whether the
objection which is here set up to avoid a business transaction would have
been sufficient to support a special demurrer before the passing of the
Common Law Procedure Acts".
The appeal was allowed and the award was restored. There is, therefore,
sufficient authority to indicate that even though the invoice of the bill is not
signed by the other party to the contract, as a result of the acceptance of the
goods delivered in pursuance of the invoice the demand for the price of
goods admittedly received by the purchaser on the basis of the invoice must
be held to arise on "written contract".
6. Besides above, the facts of the present case indicate that the suit must be treated
as a summary suit since it is based on an enactment. In this case the facts clearly
show that the goods were delivered by the plaintiff to the defendants and the
defendants enjoyed the benefit of that, therefore they are liable under Section 70 of
the Contract Act to pay compensation in respect of such goods to the plaintiff.
Section 70 reads as follows:
Obligation of person enjoying benefit of non-gratuitous act.- Where a person
lawfully does anything for another person, or delivers anything to him, not
intending to do so gratuitously, and such other person enjoys the benefit
thereof, the latter is bound to make compensation to the former in respect of,
or to restore, the thing so done or delivered.
A similar view was taken by this Court in an unreported judgment of this Court in
(Summons for Judgment No. 23 of 1976 in Suit No. 1405 of 1975) decided on
9.4.1976. This view is followed by another Single Judge of this Court in (J.K.
Enterprise v. Prithviraj Ratanchand Mehta and Anr.) MANU/MH/0030/1991 :
AIR1991Bom162 .
7 . Mr. Punjabi, the learned Counsel for the Defendants submitted that there are no
specific averments in the plaint that the suit is based on invoices. This submission is
not correct in view of the specific averments in the plaint that the suit is based on
unpaid invoices vide paragraph 13 of the plaint. It is not necessary, as contended by
the learned Counsel, that there should be pleadings that the terms and conditions of
the invoices were applicable to the transaction.
8. Mr. Punjabi, learned Counsel for the defendants further relied on the judgment of
the Delhi High Court in the case of (S.V. Electricals Ltd. v. Sylvania and Lakshman
Ltd.) MANU/DE/0870/2000 : AIR2000Delhi156 for the proposition that the bill or
invoice cannot be construed as a written contract and a summary suit cannot be filed
for recovery of amounts due under such invoice. In my view, the judgment does not
lay down such a broad proposition. On the contrary, it appears from the observation
in paragraph 8-A that the Court rejected the plaintiffs plea because it was found that
the invoices and lorry receipts were not even directly or indirectly received by the
defendants.
9. It was also contended on behalf of the defendants that there is a difference in the
rate for the goods mentioned in one invoice and the rate mentioned in the
corresponding purchase order. The purchase order is annexed at Exhibit 'D' to the
plaint. According to Mr. Punjabi the rate mentioned in the purchase order which is

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lesser than the rate mentioned in the invoice should prevail. However, there is no
pleading whatsoever to this effect and this plea cannot be even otherwise accepted in
view of the fact that the rate mentioned in the invoice and in the corresponding
invoices is similar to the rate mentioned in other invoices and there is no difference
between the purchase order and the invoices pertaining to other consignments.
10. It was next contended on behalf of the defendants that there is no stipulation as
to the interest in the contract. Having held that the written contract in this case are
the invoices, it must be held that there is a stipulation for interest in view of the
specific term in the invoice that interest at the rate of 21% p.a. will be charged on
over due payments.
11. Hence, the suit is decreed in the sum of Rs. 4,39,585/- i.e. the principal amount
plus interest at the rate of 21% p.a. till the filing of the suit. The defendants are
liable to pay future interest however at the rate of 18% per annum on the principal
sum of Rs. 3,82,096/- from the date of filing of the suit till realisation and/or
payment and costs. Decree be drawn up accordingly. Summons for judgment and the
suit stands disposed of accordingly.

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