Bobde S.A, J.:— 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. 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. No.
Date
Invoice No.
Quantity supp lied in kg.
Corr. Purchase Order No.
Del. Chalan No.
D. Chalan Date
1.
3.11.2004
670/04-05
500
R-2004 06003 12
662
3.11.04
2.
9.11.04
695/04-05
1000
R-2004 11007 76
687
9.11.04
3.
13.5.05
175/05-06
500
R-2005 04000 94
173
13.5.05
4.
28.5.06
227/05-50
300
R-2005 05002 00
225
28.5.05
3. According to the plaintiff the defendants are liable as follows:
Sr. No.
Invoice No.
Amount
Due date
No. of days old as on 19.11.05
Interest @21% p.a for delayed period (19.11.05)
1.
670/04-05 3.11.04
79040.00
18.12.04
336
15280.00
2.
695/04-05 9.11.04
163280.00
24.12.04
330
31001.00
3.
175/05-06 13.5.05
87360.00
27.6.05
145
7288.00
4.
227/05/06
52416.00
12.7.05
130
3920.00
Total
382096.00
57489.00
Principal Amount + Interest Amount
Rs. 3,82,096.00
till 19.11.2005
Rs. 57,489.00
Total amount
Rs. 4,39,585.00
4. 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.
5. 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).”
6. 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 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 v. Ramesh Steel House by Partner Babulat)1 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 Rufand Company Ltd. v. Pauwels)2, (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 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 Pauwela 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”.
7. 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, I do not think the words necessarily have that meaning. A document purporting to be an agreement may be an agreement in writing sufficient to satisfy the requirements of an Act of Parliament though it is only verified by the signature of one of the parties: (In Re Jones)3, (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”.
8. 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.”
9. 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)5, 1991 (1) Bom. C.R 480 : A.I.R 1991 Bombay 162.
10. 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.
11. Mr. Punjabi, learned Counsel for the defendants further relied on the judgment of the Delhi High Court in the case of (M/S S.V Electricals Ltd.…Plaintiff v. M/S Sylvania & Lakshman Ltd.…Defendant)6, A.I.R 2000 Delhi 156 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.
12. 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 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 other wise 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.
13. 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. 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.
14. Order accordingly.