Judgment :- Soumen Sen, J. This is an application under Chapter XIIIA of the Original Side Rules of this Court for recovery of a sum of Rs.42,33,423/-. On 12th January, 2011, the plaintiff instituted a suit being CS No.7 of 2011 praying, inter alia, for a decree for a sum of Rs.42,33,423/- against the defendant along with interest. The case of the plaintiff in short is stated hereinafter. On 11th February, 2009, the defendant floated a tender for purchase of whet by bulk consumers pursuant to the said tender. The plaintiff participated in the bid for lifting 10,000 quintals of wheat under OMSS (D) at the rate of 1138.63p per quintal. The offer of the plaintiff was accepted and the plaintiff was directed to deposit a sum of Rs.1,14,43,232/- by 8th of March, 2009 being the total cost of food grains. On 4th March, 2009, the plaintiff deposited a sum of Rs.1,03,04,602/- being the price of 10,000 quintals of wheat at the rate of 1138.63p per quintal along with market fees at the rate of 0.5% less the earnest money deposit amounting to Rs.11,38,630/-. The plaintiff also paid the balance security deposit. The defendant issued two release orders dated 4th March, 2009 and 5th March, 2009 respectively allotting 7500 and 2500 quintals of wheat to be lifted by the plaintiff from its Cossipore godown by 8th March, 2009. On 6th March, 2009, the plaintiff requested for permission to lift the allotted wheat by 60 lorries per day. The defendant, however, allowed the plaintiff to deploy 20 trucks on its godown to lift the stock of wheat. Between 6th of March, 2009 and 7th March, 2009, the plaintiff lifted 2606.21 and 2509.29 quantities of wheat respectively aggregating to 5115.50 quintals of wheat from the Cossipore Depot. The Cossipore Depot, however, could not deliver the balance quantity of 4884.50 quintals of wheat due to exhaustion of stock. The plaintiff was directed to lift short-fall quantity in two branches, namely, 2384.50 quintals and 2500.00 quintals under the two release orders from the Doharia and Barasat Depot of the defendant after obtaining permission from the area Manager. The defendant did not instantly inform its area Manager of such release orders and such communication was made after five days later, i.e., on 12th March, 2009. The defendant did not instantly inform its area Manager of such release orders and such communication was made after five days later, i.e., on 12th March, 2009. The defendant claimed storage charges at the rate of .25 paise per bag per day from the plaintiff from 9th March, 2009 till 15th March, 2009 as a pre-condition for release of the balance material. The plaintiff paid the aforesaid storage charges under protest on 13th March, 2009. Between 13th March, 2009 and 14th March, 2009 the plaintiff was allowed to lift 702.29 and 497.65 quintals of wheat respectively from the Doharia Depot of the defendant. On 15th March, 2009, the plaintiff deployed 30 trucks for the purpose of lifting the balance 3684.56 quintals of wheat from the godown of the defendant. The trucks of the plaintiff were, however, not allowed to enter the godown of the defendant as it was a holiday. The said quantities of wheat could not be lifted due to operational difficulties of the defendant on 16th March, 2009. The plaintiff requested the defendant to extend the time for lifting the balance quantity of wheat. The plaintiff, thereafter, sent numerous reminders and from time to time called upon the defendant to restore the consideration for the unlifted quantity of 3684.56 quintals of wheat and to refund the storage charges wrongfully claimed from the plaintiff. In spite of such demands the defendant has failed to refund price of 3684.56 quintals of wheat. The plaintiff under such circumstances, filed the suit praying, inter alia, for a decree for a sum of Rs.42,33,423.00. The plaintiff has taken out this application for a final judgment. Mr. Samit Talukdar, learned Counsel appearing on behalf of the plaintiff submits that it is an admitted fact that the defendant has failed to deliver the required quantities of wheat from the designated depots of the defendant. The defendant had even failed to deliver the balance quantities from its Depot at Doharia and Barasat. It is submitted that due to exhaustion of stock at Cossipore the balance quantities could not be delivered to the defendant within 8th March, 2009. The defendant, however, had failed, neglected and refused to deliver the balance quantity of the wheat on 15th March, 2009, when the plaintiff deployed 30 trucks for the purpose of lifting the balance 3684.56 quintals of wheat. The defendant, however, had failed, neglected and refused to deliver the balance quantity of the wheat on 15th March, 2009, when the plaintiff deployed 30 trucks for the purpose of lifting the balance 3684.56 quintals of wheat. In the affidavit-in-opposition, the defendant has stated that there is no negligence on the part of the defendant in performing their obligation. It is stated on 8th March, 2009 being a Sunday and all offices being closed immediately on the following day, i.e., on 9th March, 2009, the fact of exhaustion of stocks at the Food and Storage Depot, Cossipore, was duly communicated and on such basis the superior authorities from the Regional Office of the defendant issued a notice on 12th March, 2009 instructing the Area Office (Kolkata North) of the defendant to advise the plaintiff to lift the short-fallen quantity of stocks from the Food Storage Depot, Doharia and Barasat. Pursuant to such direction, the Area Office by a letter dated 12th March, 2009 communicated such instructions to both the said Doharia and Barasat Depots with a copy thereof forwarded to the plaintiff on that date itself. It would, thus, be evident that there was no negligence on the part of the defendant in issuing the order for release of such stocks. It is stated that by a letter dated 16th March, 2009, the plaintiff has admitted that 8th, 10th and 11th March, 2009 were holidays and 15th March, 2009 again was a holiday. It was further stated that in order to facilitate lift of materials by the plaintiff in spite of 14th March, 2009 being a Second Saturday and a holiday the depot was kept open and the plaintiff was allowed to lift the materials on 14th March, 2009 under orders from the Regional Authorities. In a supplementary affidavit filed by the defendant has disclosed a communication dated 23rd April, 2009 from the Depot in which Doharia upon the Manager of Food Corporation of India stating that the plaintiff has failed to provide adequate number of trucks in spite of giving a written programme for providing 42 Trucks on 13th March, 2009 and 47 Trucks on 14th March, 2009. The plaintiff did not file any affidavit dealing with the allegations made in the supplementary affidavit, as would appear from the order dated March 10, 2013. The plaintiff did not file any affidavit dealing with the allegations made in the supplementary affidavit, as would appear from the order dated March 10, 2013. In this application for summary judgment, the petitioner has proceeded on the premise that there is a failure on the part of the defendant to supply the balance quantities of wheat. In the pleadings filed by the defendant, it has been categorically stated that there is no failure on the part of the defendant to supply the balance quantities and, in fact, it was by reason of failure on the part of the plaintiff to arrange for lifting of the materials, the defendant is not entitled to make a claim for the balance quantities. This issue can only be decided at the trial. This dispute cannot be decided in a summary jurisdiction. Having regard to the defence disclosed in the affidavit as well as in supplementary affidavit, it cannot be said that the defendant has failed to disclose a defence at this stage to resist a summary decree. Since the defendant has been able to raise a triable issue, in my view, the defendant is entitled to contest the suit. In view thereof, this application for summary judgment is dismissed. The urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.