Final Order 1

Order Details: Other
Pdf Text: MHCC010002522019 Presented on 07/01/2019
Registered on 07/01/2019
Decided on 12/11/2024
Duration 05Y: 10M: 05D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 10 OF 2019
IN
SUMMARY SUIT NO. 577 of 2014
Ravindra Poonamchand Angara ]... Plaintiff
V/s.
Titan Entineering Company Pvt. Ltd. ] .. Defendant
Appearance:-
Ld. advocate S. R. Maurya for plaintiff.
Ld. advocate Swati Sinha for defendant.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 12/11/2024.
ORDER
( Dictated and pronounced in open Court)
01] The plaintiff has filed this summons for judgment against
defendant on 19/01/2019. Defendant filed his reply to the summons
for judgment and resisted it and prayed for unconditional leave to
defend the suit.
02] As per the plaintiff, he is doing business in the name and
style of ‘Poonam Enterprises' at address mentioned in the title cause.
Defendant is a Company registered under Companies Act and carries on
-- 1 of 7 --
2 SJ No.10/2019 in
Sum SU No.577/2014
business at address mentioned in the title cause. Further, as per the
orders placed by defendant in the month of August-2011, November-
2011 and December-2011 placed at Mumbai for total value of
Rs.39,07,702/-, he had supplied and sold goods to the defendant.
Accordingly, he raised invoices against the defendant and as per terms
and conditions in the said invoices if there is delay in payment, plaintiff
is entitled for interest @ 24% p.a. Defendant made part payment of
Rs. 31,59,763/- however, defendant neglected and failed to pay balance
amount of Rs.7,47,939/-. Therefore, plaintiff issued notice dated
17/12/2012 to the defendant and called upon him to pay the balance
amount to which defendant has given false reply on 04/01/2013. As
per said letter, defendant has admitted that as per their record an
amount of Rs. 13,74,936.60 was due as on 01/01/2013. Further, it was
contended in the said letter that defendant will be clear said dues in
installments by January, February-2013. Further, defendant sent Ledger
Account of plaintiff with defendant and contended that he had to pay
an amount of Rs.3,60,000/- towards West Bengal Tax to release
materials of the plaintiff. Further, it is contended that due to default of
plaintiff for non generation of e-way bill in part II defendant had
incurred expenses. It is the contention of the plaintiff that as defendant
failed to pay amount of Rs. 7,47,939/- with interest, plaintiff had sent
notice dated 25/07/2013 to the defendant. Defendant had replied to
said notice on 26/08/2013 and reiterated the contention that plaintiff
has failed to generate e-way bill in Part II. Therefore, plaintiff sent
notice dated 11/09/2013 to defendant and denied allegations made by
the defendant. It is further contended that defendant had arranged for
transporter and also made payment of it. There was no fault on the part
of the plaintiff therefore, question of deducting an amount of
Rs. 3,60,000/- from balance amount due against defendant does not
-- 2 of 7 --
3 SJ No.10/2019 in
Sum SU No.577/2014
arise. It is further submitted that the case of the plaintiff is based on
invoices and defendant has not denied that he has received goods sent
by the plaintiff. It is further submitted that plaintiff has relied on the
invoices and the Ledger Account filed vide list Exh. 6. Defendant has
admitted his liability by making part payment and only defence of the
defendant is that plaintiff has not generated e-way bill in part II. It is
not the substantial defence. Therefore, defendant is not entitled for
leave to defend the suit. Hence, summons for judgment may be
allowed.
03] On the other hand, it is submitted by the defendant that
there is preliminary objection to the suit filed by the plaintiff, as the
defendant is carrying on business in the State of West Bengal and he is
also registered VAT Act, 2003 and Central Sales Tax Act, 1956. The
defendant had placed order with plaintiff to supply 12510 kgs. Iron and
Steel Ware at value of Rs. 37,29,743/-. Accordingly, defendant issued
e-way bill in part-I on 13/08/2011 and plaintiff was supposed to
generate e-way bill in part-II. It is further submitted that the said e-way
bill in part-II was required for entry of taxable goods in the State of
West Bengal as per Section 73 of the West Bengal Value Added Tax Act,
2003. On 21/11/2011, plaintiff engaged a transporter and handed over
the goods to the transporter and issued consignment note No. 2046
dated 21/11/2011. The transporter engaged Truck No. JH-12C-0861
and handed over goods, invoice, consignment note and e-way bill part-I
to the driver of the truck for transportation. On 27/11/2011, said Truck
reached at Duburdih Check Post and after making enquiry at Check Post
said Truck was detained on the ground that there is no e-way bill in
part-II. Therefore, due to the default of the plaintiff, defendant had to
pay penalty of Rs. 3,60,000/- on 07/12/2011 to release the goods. The
-- 3 of 7 --
4 SJ No.10/2019 in
Sum SU No.577/2014
said fact was intimated to the plaintiff by email dated 29/11/2011.
Defendant has filed said documents on record as Annexure A to D to the
said reply. It is further submitted that plaintiff himself has admitted
that an amount Rs. 35,34,699/- received from defendant against goods
supplied worth Rs. 37,29,742/-. As defendant has to pay the penalty of
Rs. 3,60,000/- due to negligence on the part of the plaintiff and if that
amount is added then it can be said that plaintiff has received an
amount of Rs. 39,04,699/-. Therefore, plaintiff is not entitled for any
amount from the defendant, as defendant has paid entire amount to the
plaintiff. It is further submitted that defendant has raised substantial
defence and triable issue that plaintiff failed to generate e-way bill in
part-II. Therefore, defendant is entitled for unconditional leave to
defend the suit. Hence, summons for judgment may be dismissed.
04] Perused summons for judgment, reply of the defendant,
and documents on record. Heard both the parties. On perusing
pleadings of both the parties, it appears that plaintiff has filed suit
against defendant for recovery of balance amount. It is not disputed
that defendant had placed order with the plaintiff at Mumbai and
plaintiff had sold and supplied goods to the defendant. As per the
plaintiff, he has supplied goods to the tune of Rs. 39,07,702/- and to
support his contention, he has filed office copy of bill vide list Exh. 6/1
to 6/3. On the contrary, it is the contention of defendant that plaintiff
has supplied goods to the tune of Rs. 37,29,743/-. Further, plaintiff has
contended that defendant has made part payment of Rs.31,59,763/-.
However, plaintiff has filed particulars of part payment vide list
Exh.6/4. On perusing said statement, it appears that plaintiff has
received an amount of Rs. 35,34,699.90/-. It is pertinent to note that
plaintiff had issued notice dated 17/12/2012 to the defendant and
-- 4 of 7 --
5 SJ No.10/2019 in
Sum SU No.577/2014
called upon him to make the balance payment of Rs.31,12,475.57. said
notice is filed on record vide list Exh. 6/5. Further, it appears that
defendant had replied to the said notice on 04/01/2013 filed on record
vide list Exh. 6/6. On perusing said reply, it appears that defendant has
contended that as per their record an amount of Rs. 13,74,936.90 was
due as on 01/01/2013. Further, defendant has contended that they are
ready to clear the said dues by January/February 2013 in installments
and further to pay interest in the month of March, 2013.
05] As per the plaintiff, principal amount of Rs. 7,47,939/- is
due against defendant. However, as per the defendant plaintiff was
supposed to generate e-way bill in part-II to supply and deliver the
goods at the address of defendant in the State of West Bengal.
However, as plaintiff failed to generate said e-way bill in part II the
truck in which goods were sent was detained and to release said goods
defendant has to pay penalty of Rs. 3,60,000/-. The defendant has filed
photo copies of concerned documents as Annexures A to C. Further, it
is the contention of defendant that he had informed said fact to the
plaintiff by email filed along with reply at Annexure C. Thus, it appears
that plaintiff has raised triable issue as to who was supposed to
generate e-way bill in part-II. Therefore, question arises whether
defendant is entitled to deduct an amount of Rs.3,60,000/- from
balance, if any, due against him. However, as discussed above, the
defendant has admitted that plaintiff has supplied goods to the
defendant. However, it is necessary to lead evidence by both the parties
to decide whether any amount is balance against defendant and
whether it was necessary on the part of the plaintiff to generate e-way
bill in part-II. Therefore, I am of the view that defendant is entitled for
leave to defend the suit however, it is necessary to impose condition to
-- 5 of 7 --
6 SJ No.10/2019 in
Sum SU No.577/2014
deposit 50% amount of the principal amount claimed by the plaintiff.
Thus, defendant is entitled for condition leave to defend the suit.
Hence, I proceed to pass following order.
ORDER
1) Summons for judgment No.10/2019 in Summary Suit
No. 577/2014 is disposed off as follows:
(a) Leave to defend the suit is granted to the defendant subject
to condition that he shall deposit 50% of principal amount
within 60 days from the date of this order.
(b) The defendant will be at liberty to file his written
statement on record within 30 days after depositing amount.
2) After depositing amount by the defendant, it be deposited in fixed
deposits in any Nationalized bank as per law till further orders.
3) No order to costs.
4) Summons for judgment No.10/2019 is disposed off
accordingly.
(Sangram S.Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date: 12/11/2024 Court Room No.81
Dictated on : 12/11/2024
Corrected & signed on : 13/11/2024
-- 6 of 7 --
7 SJ No.10/2019 in
Sum SU No.577/2014
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
14/11/2024 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 12/11/2024
JUDGMENT/ORDER signed by P. O. on 13/11/2024
JUDGMENT/ORDER uploaded on 14/11/2024
-- 7 of 7 --