Interim Order 2

Order Details: Other
Pdf Text: SJ No.100023 / 2022,
Laxmi - Rachana
Order (Exh.13) 1 of 5
City Civil and Sessions Court, Mazgaon, Greater Mumbai
Court Room No. 31 – Commercial Court
(Additional District Judge : Vijay S. Hingne, LL. M.)
MHCC010002382020
SJ Filed : 12.10.2022
Arguments Heard : 22.02.2024
Decided on : 22.03.2024
Duration : 1 Y, 5 M, 11 Days
Exhibit No.13
Summary Judgment No. 100023 / 2022
in
Commercial Suit No. 100375 / 2020
Plaintiff : Laxmi Interchem
VERSUS
Defendant : Rachana Chemicals
Appearances
Plaintiff
: Adv. Ms. Geeta Gyanchandlala
Defendant
: Adv. Ms. Purva Lamba
Summary Judgment
****************************************************
ORDER
(Pronounced on this 22nd Day of March 2024)
Plaintiff has preferred Summary Judgment.
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SJ No.100023 / 2022,
Laxmi - Rachana
Order (Exh.13) 2 of 5
Points for determination :
2) Perused record. Heard the Learned Counsels. Points for
determination, findings and reasons :
Points
Findings
1. Whether plaintiff is entitled for
Summary Judgment?.................... In the Negative.
2. What Order? …………………… As per final order.
R E A S O N S
Case of plaintiff :
3) Plaintiff Laxmi Interchem, is Sole Proprietorship Firm
of Mr. Darshak Shah, carrying on business of chemicals
(hereinafter,
Plaintiff).
Defendant Rachana Chemicals is Partnership Firm
(hereinafter,
defendant).
4) Defendant had placed two Purchase Orders of Fully
Refined Paraffin Wax (hereinafter,
goods), as follows :
Sr. Order No. Date Kgs. Amount
1 03 / 18-19 10.04.2018 2550 2,79,838/-
2 03 / 18-19 10.04.2018 2850 3,12,760/-
Accordingly, plaintiff supplied goods of .	₹ 5,92,598/-. Defendant
received said goods at its Taloja factory.
5) Towards repayment, defendant issued Post-dated
Cheques and requested plaintiff not to deposit the same. Despite
requests by e-mails, telephone, defendant failed to make
payment. Hence, on 21.05.2019, plaintiff issued recovery-notice
and the preferred present Commercial Suit No. 100375 / 2020, for
recovery of
.	₹ 8,13,639.72/-, with interest @ 36 % p. a.
Written Statement (Exh.7, Dt. 08.12.2021) :
6) Defendant opposed the Suit on numerous grounds and
prayed for its dismissal on exemplary costs.
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SJ No.100023 / 2022,
Laxmi - Rachana
Order (Exh.13) 3 of 5
Issues :
7) Considering rival pleadings, my Learned Predecessor,
on 25.08.2022, framed Issues at Exh. 9 and adjourned the Suit for
arguments on Case Management Hearing on 12.10.2022.
Summary Judgment No. 100023 / 2022 (Dt. 12.10.2022) :
8) Plaintiff has provided goods worth .	₹ 5,92,598/- to
defendant. Defendant has accepted said goods without grievance
about quality. Defendant has also issued Post-dated Cheques,
which signify their admission against outstanding amount.
Plaintiff has filed all relevant documents relating to transaction.
Against it, defendant do not have any substantial defense.
Therefore, before recording of oral evidence, plaintiff
be made entitled for decree under Order 13-A.
Reply by defendant (Exh.11) :
9) Defendant opposed Summary Judgment on grounds as :
1. Defendant has paid amount against Order Dt.
15.07.2017, 20.03.2018 and 10.04.2018.
2. Defendant had placed order of goods manufactured by
Fushun Petro Chemical Company.
However, plaintiff supplied said goods manufactured by
Petro China Company Limited.
As both raw materials have same physical appearance,
defendant did not noticed change of manufacturer.
Thereby, plaintiff misused trust and deliberately
supplied faulty goods against Orders Dt. 10.04.2018 and
18.04.2018.
Defendant subjected said goods to final product. When
final product was supplied by defendant, its buyer
returned consignment for reasons of faulty final goods.
Said defect arose because of defective goods / raw
material of plaintiff. It caused loss to defendant.
3. Suit is not maintainable even under Order 13-A. Hence,
Summary Judgment be dismissed with exemplary cost.
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SJ No.100023 / 2022,
Laxmi - Rachana
Order (Exh.13) 4 of 5
Reasons as to Point No. 1 to No. 2 :
10) All points being interconnected, are taken for common
discussion.
11) Plaintiff has preferred the Summary Judgment under
Order 13-A. Said provision is specifically applicable to
Commercial disputes. Order 13-A, Rule 2 reads as follows :
2. Stage for application for summary judgment.
An applicant may apply for summary judgment at any
time after summons has been served on the defendant:
Provided that, no application for summary judgment
may be made by such applicant after the Court has
framed the issues in respect of the suit.
Thus, Order 13-A Rule 2 mandates that, applicant may apply for
Summary Judgment, but,
after summons is served on the
defendant and
before the Court has framed the Issues in respect
of the Suit.
12) In present Suit, my Learned Predecessor has framed the
issues on
25.08.2022 (Exh.9).
Roznama shows that, it is thereafter on
12.10.2022, the
plaintiff tendered application for Summary Judgment.
As per Order 13-A, Rule 2, plaintiff was having right to
file application for Summary Judgment on or before 25.08.2022.
Having failed to do so, provision of Order 13-A Rule 2 prevents
the plaintiff from filing any such application after 25.08.2022.
Said application being filed on 12.10.2022, cannot be
considered at this stage.
Therefore, the Point No. 1 is answered in Negative.
Consequently, Summary Judgment is disposed off, by following
Order :
ORDER
1. Summary Judgment No. 100023 / 2022, is rejected.
2. In view of Issues framed on 25.08.2022 at Exh.9, the
Suit is adjourned for Case Management Hearing.
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SJ No.100023 / 2022,
Laxmi - Rachana
Order (Exh.13) 5 of 5
3. Proceeding of Summary Judgment No. 100023 / 2022,
is closed.
4. Order dictated and pronounced in Open Court.
5. Parties be informed about their right to challenge this
Order and limitation for same.
6. Record of Summary Judgment shall be part of
Commercial Suit No. 100375 / 2020.
Mumbai
Dated : 22.03.2024 (Vijay S. Hingne)
Additional District Judge,
Court Room No.31 - Commercial Court,
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
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