Judgement ORDER :- The above application is taken out by the plaintiff in a money suit for pronouncing a final judgement and decree for a sum of Rs. 71,77,420.62p. The suit filed by the plaintiff for recovery of the sum of Rs. 71,77,420.62p. inclusive of interest for the goods sold and delivered. The case made out by the plaintiff in the affidavit in support of summons is that on diverse dates under the diverse invoices the plaintiff sold and delivered a large quantity of ball bearings to the defendant, the price of which was Rs. 1,73,80.127.81 p. Out of the aforesaid amount, a sum of Rs. 1,28,92,200.19p. has been paid by the defendant to the plaintiff leaving a balance amount of Rs. 44,87,927.62p. on account of principal. The amount of interest has been claimed on the aforesaid sum at an agreed rate which came to be of a sum of Rs. 26,89,493.00p. calculated upto 31st August, 2002. 2. Mr. Pratap Chatterjee, learned Senior Counsel appearing with Ms. Nadira Patherya in support of this application contends that in the affidavit-in-opposition no defence has been made out to contest the suit by filing written statement. The plea of limitation taken by the defendant is of no substance as there are part payments within the period of limitation and this will appear from Annexure-"C", at pages 16 and 17 and Annexure-"D" at page 18 of the affidavit-in-opposition of the affidavit affirmed on behalf of the plaintiff on 19th March, 2004. 3. It will appear from the pleadings and the documents annexed thereto, that there is continuous running account maintained between the parties and this will be evident from the payments made by the defendant to the plaintiff on ad hoc basis between 28th July, 1999 and 26th March, 2002. The scheme for allowance of 5% turnover discount and one Maruti 800 Car and one Maruti Esteem Car for sale of Rs. 1 crore was available during the period from 1st July, 1998 to 31st March, 1999 and was applicable only in the event of full outstanding amount has been paid. In the instant case, full outstanding amount has not been paid within 31st March, 1999 and this will be evident from the Annexure-"C" and Annexure-"D" and the plaintiffs affidavigt-in-opposition. As far as claim of 2% cash discount is concerned Mr. In the instant case, full outstanding amount has not been paid within 31st March, 1999 and this will be evident from the Annexure-"C" and Annexure-"D" and the plaintiffs affidavigt-in-opposition. As far as claim of 2% cash discount is concerned Mr. Chatterjee replies that such cash discount has been paid and it will appear from the affidavit of the defendant itself. 4. There has been no rejection of any of the goods. The defendant by its letter dated 15th April, 1999 only complained about all the ball bearings being noisy and rusty. By this letter, the defendant was asking for 5% turnover and 15% flat discount. By another letter defendant wanted discount and replacement of the goods. Inspite of the alleged defect the goods were not remaining unsold. The claim for 15% flat discount is an imaginary claim and it has been mentioned for the first time by his letter dated 15th April, 1999 and 11th May, 1999 and at no point of time discount was asked for prior thereto. As far as suffering of loss and damages on account of non-supply of the goods is concerned there is no occasion for such suffering of loss and damages as after 31st March, 1999 there has been no transaction of business between the parties. The letter of notice of demand of the plaintiff dated 18th December, 2002 was not replied to and this story of loss and damages is afterthought. 5. Mr. Das, learned Senior Advocate while resisting the present application, on behalf of the defendant contends firstly that the claim of the plaintiff is barred by limitation though it has been mentioned in the body of the plaint that the accounts of the dealings and transactions between the parties are mutual, open and continuous. This statement and averment has been specifically denied and disputed. No document has been disclosed far less to include the same in the affidavit to show that the account between the parties is having any mutuality or continuity. He further submits that the concept of mutuality in the accounting system between the plaintiff and the defendant does not arise unless there are cross dealings and transactions between the parties. But the dealings and transactions between the parties in this case only occurred in one way i.e. the plaintiffs supplied goods to the defendants, not the vice versa. As such, the element of the mutuality is lacking. But the dealings and transactions between the parties in this case only occurred in one way i.e. the plaintiffs supplied goods to the defendants, not the vice versa. As such, the element of the mutuality is lacking. Therefore, there is specific defence in the suit as to whether the plaintiffs claim is barred by limitation or not. On merit he contends that the defendant being an authorized stockist was entitled to various concessions and/or discounts i.e. turnover discount, one Maruti Car for purchases exceeding Rs. 50 lacs and another Maruti Esteem Car for purchases exceeding Rs. 100 lacs etc. No cash discount or turnover discount has been given to the defendant. It also does not appear that the relief on the list price and 10% deduction on certain items has been given although these are agreed terms and conditions. He contends that the claim made out in the plaint is inflated as it does not conform to the document annexed to the affidavit. In the body of the plaint the claim has been made for Rs. 173 lacs whereas the document shows that the claim would be around Rs. 159 lacs. Accordingly, an amount in excess of Rs. 14 lacs has been wrongfully claimed by the plaintiff. 6. That apart, the defendant rejected a certain quantity of the goods. The aggregate value of the same is Rs. 20.23 lacs and this will appear from the letter dated 15th April, 1999 annexed to the affidavit-in-opposition and there is no denial of this letter. The defendant is entitled to 15% flat discount as per the letter dated 15th April, 1999 and 11th May, 1999 which are annexed to the affidavit-in-opposition and the same has not been denied and disputed. The claim of interest in the plaint is denied. There has been no agreement to pay interest at the rate of 18% or any other rate. The notice of the Learned Advocate on record served upon the defendant only few days before the filing of the suit, cannot be termed to be a notice under the Interest Act. If the entire case made out by the defendant is considered it will appear that the plaintiff has no claim at all. On the contrary, the defendant has a counter-claim of a sum of Rs. 14.72 lacs. 7. Mr. If the entire case made out by the defendant is considered it will appear that the plaintiff has no claim at all. On the contrary, the defendant has a counter-claim of a sum of Rs. 14.72 lacs. 7. Mr. Das, therefore, concludes that his client has been able to argue a strong defence to contest the suit by filing a written statement as the following issues are to be tried : 1(a). Was the defendant an authorized stockist of the plaintiff ? (b) If so, is the defendant entitled to all the benefits which an authorized stockist gets from the plaintiff i.e. turnover discount at the rate of 5% on invoice value. A cash discount @ 2% on bills/invoices value of Rs. 1,21,00,000/-, the value of two further monetary amounts in lieu of the two motor cars and other benefits mentioned in the first affidavit filed on behalf of the defendant dated 29th September, 2003 and his supplementary affidavit dated 16th February, 2004 ? 2(a) Did the defendant lawfully reject a portion of the goods mentioned in his letter dated 15th April, 1999 enclosed to his first affidavit which was not contradicted nor replied to by the plaintiff ? (b) If so, is the defendant entitled to be given credit for the sum of Rs. 20,23,973/- being the value of such rejected goods ? 3(a) Is the defendant entitled to 15% flat discount claimed as per his letters dated 15th April, 1999 and 11th May, 1999 annexed to the affidavit-in-opposition ? (b) If so, is the claim of the plaintiff liable to be reduced by such discount ? 4(a) Was the plaintiff deliberately suppressed the facts relating to appointment of the defendant as an authorized stockist, the credit notes which the plaintiff issued in favour of the defendant, each of them bearing the plaintiffs endorcement to the effect that party made payment within stipulated period, hence 2% cash discount passed, on to the party with "no loss to the company"? (b) If so, is the application for summary judgement liable to be rejected on this ground alone ? 5(a) Does the plaintiff have a liquidated claim against the defendant since the claim made as per the invoices annexed to the plaint is different from the chart annexed by the plaintiff ? (b) If so, is the plaintiff entitled to Rs. 14,1,177/- claimed in excess by the plaintiff ? 6. 5(a) Does the plaintiff have a liquidated claim against the defendant since the claim made as per the invoices annexed to the plaint is different from the chart annexed by the plaintiff ? (b) If so, is the plaintiff entitled to Rs. 14,1,177/- claimed in excess by the plaintiff ? 6. Is the plaintiff liable to pay to the defendant Rs. 14,72,042/- or alternatively Rs. 1,40,823/- as mentioned in Annexure-"C" of the defendants supplementary affiavit dated 16th February, 2004 ? 7. Is the defendant entitled to make the counter-claim set out in Annexure-"D" to the affidavit-in-opposition filed on behalf of the defendant ? 8(a) Was there a mutual current and continuous account between the parties as alleged in paragraph 9 of the plaint ? (b) If so, is the plaintiff bound to disclose such account with particulars before claiming final judgement ? 9. Does the defendant have a valid bona fide and genuine defence to the false and inflated claim of the plaintiff ? 10. Can a suit involving disputed accounts beween the parties be the subject-matter of an application for final judgement under Chapter 13-A of the Original Side Rules ? 8. It is well-settled, he urges, that where there are triable issues as has been indicated hereinabove a summary judgement under Chapter 13-A cannot be passed and in support of his submission he has relied on following decisions, AIR 2002 SC 1993 , AIR 1926 Cal 713, AIR 1998 SC 2317 , AIR 1958 SC 321 . 9. Having heard the respective contentions of the learned counsels I am of the opinion that the pronouncement of a final judgement under Chapter 13-A of the application and under Order 37 of the Code of Civil Procedure depends upon the case made out by the plaintiff at the first instance and thereafter the nature of the defence made out by the defendant. The authorities cited by Mr. Das and also the other authorities on the subject though not cited, have already firmly settled the guidelines in general to be followed for dealing with this nature of application. Mr. Chatterjee does not dispute the proposition laid down by the authorities cited by Mr. Das and he says that those are not applicable in the facts and circumstances of this case. I think without looking into the precedents the Court should do its primary duty viz. Mr. Chatterjee does not dispute the proposition laid down by the authorities cited by Mr. Das and he says that those are not applicable in the facts and circumstances of this case. I think without looking into the precedents the Court should do its primary duty viz. to examine the claim of the plaintiff first and while doing so it has to be examined how far the plaintiff has been able to make out a case in the summary procedure to get a final judgement. At this stage, the Court is supposed to look into the affidavit affirmed and filed in support of the summons, which is based on the copy of the plaint and then document of unimpeachable character to support the claim. While examining a copy of the plaint together with the documents I find the case is made out in the plaint the substance of which is as follows : In usual course of business the defendant (respondent) placed orders on the petitioner for supply of diverse quantities of ball bearings of diverse specifications. It is pertinent to note that no dates of placement of order have been mentioned. The averments, therefore, in my view, are vague and devoid of particulars, particularly in an action for recovery of price of the goods, sold and delivered. Then it is averred (paragraph 4) that plaintiff supplied the said goods on terms and conditions contained in the invoice. Under diverse invoices for the supplies made a sum of Rs. 1,73,80,127.81p. towards the principal became due and payable by the defendant to the plaintiff. Out of the aforesaid sum the defendant paid a sum of Rs. 1,28,92,200.19p. towards principal to the plaintiff thereby leaving an outstanding balance of a sum of Rs. 44,87,927.62p. on account of principal. Last of such payments was made by the defendant to the plaintiff on 26th March, 2002. There has been no date of supply of the goods or receipts thereof. This averment is absolutely vague and devoid of material particulars relating to the date of supply. While examining the invoices annexed to the plaint I find large number of invoices were issued for supply of the goods commencing from November, 1998 till 1999. So, prima facie in absence of any averment each and every despatch of the goods is to be treated as separate and different transaction, of course, between the same parties. While examining the invoices annexed to the plaint I find large number of invoices were issued for supply of the goods commencing from November, 1998 till 1999. So, prima facie in absence of any averment each and every despatch of the goods is to be treated as separate and different transaction, of course, between the same parties. Suit has been filed, as it appears from the verification of the plaint, on 24th February, 2003. In the affidavit in support of the summons as also the plaint it is vaguely stated that such part payment was made by the respondent to the plaintiff on 26th March, 2002 to save the limitation. In paragraph 9 it has also been stated that the plaintiff and defendant maintained a mutual current and continuous account in respect of dealings and transactions. This statement and averment have been specifically denied and disputed. Apparently when the transaction is for the period beyond three years before filing of the suit and further there has been no cogent evidence to suggest that the account is of mutual, current and continuous one it is very unsafe for the Court to overlook the plea of limitation at this stage. 10. I have already noted that the Court is to go by the affidavit in support of the summons and the other accompanying documents. I feel that the defendant has been able to make out a case on a preliminary point of the triable issue on the question of limitation and the fact of part payment. Prima facie, I do not find as rightly pointed out by Mr. Das that there can be any mutuality in the accounts here, as mutuality will appear when there has been bilateral transaction and not unilateral. In this case all the times without any departure the plaintiff supplied the goods and the defendant used to receive the same and to make payment not vice-a-versa. The claim is based at the highest on accounts viz. how much quality of the goods were received by the defendant and how much payment has been made are the primary issues to be resolved. Moreover, on merit it has been claimed that the discount has not been paid and the other dues are also not paid off.These are the disputes, I thknk the same need to be tried on evidence. 11. Moreover, on merit it has been claimed that the discount has not been paid and the other dues are also not paid off.These are the disputes, I thknk the same need to be tried on evidence. 11. I have already noted that the case made out in the plaint is absolutely half-hearted and devoid of particulars as to the date of despatch and delivery of the goods. Only vague mention of the delivery is there. It could not be ascertained from the pleading and it has to be gathered from the evidence. Whatever evidence is addued in the pleading could not be accepted at the face value as the same is seriously denied and disputed by the defendant. In a Division Bench judgement of this Court Cycle Corporation of India Ltd. v. Biswanath Dhandhania, reported in AIR 1990 Cal 405 the summary judgement was not allowed as there has been a serious triable issue including question of limitation. 12. Judging by the case made out by the defendant in the affidavit and examining the claim of the plaintiff I do not think the issues raised by the defendant are sham or weak one. If the question of limitation sustains, at the time of the trial of the suit then the claim of the plaintiff will automatically fail. Therefore, it would be grossly unjust if the final judgement is passed on the basis of the claim made out in the plaint and affidavit in support of summons. There might or might not be documents which might be relevant and appropriate to substantiate the claim, but unless the claim is made out accurately and appropriately at least to get a judgement in the summary procedure with the evidence such case may be termed to be untrue. Thereforem, the decision cited by Mr. Das as above is applicable in this case. I have no hesitation to hold that the defendant is entitled to file written statement, if not filed already and to defend the suit unconditionally. As such the application is dismissed. However, no order as to costs. Application dismissed.