Final Order 1

Order Details: Other
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MHCC010002522020
Presented on : 07/01/2020
Registered on : 07/01/2020
Decided on : 21/09/2021
Duration : Y M D
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BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
SUMMONS FOR JUDGMENT NO.03 OF 2020
IN
COMMERCIAL SUIT NO.347 OF 2021
(SUMMARY SUIT NO.476 OF 2019)
Mr.Dhiren Gosalia, age 54 years ]
Indian Inhabitant carrying on his ]
Business in the name and style of M/s]
Eastern Traders, as its proprietor, at ]
Shreeji Bhuvan,1st floor, 51, ]
Mangaldas Road, Near Lohar Chawl ]
Mumbai400 002. ] ..Plaintiff
Versus
Mr.Sanjay Desai, adult ]
Indian Inhabitant, carrying on his ]
Business in the name and style of M/s]
Bhavi Electric Control, as its ]
proprietor at Plot No.75, Varsha ]
Apartment, Opp. Jain Mandir, ]
Jawahar Nagar, Goregaon(West), ]
Mumbai400 062 ] ..Defendant
_____________________________________________________
Ld. Advocate V.K.Gupta with Ld. Advocate Lalita Avhad for
plaintiff
Ld. Advocate Ashish Dubey for defendant
______________________________________________________
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ORAL ORDER
(Dated this 21st day of September 2021)
1. Summons for Judgment is taken out by plaintiff for
decree of suit for the sum of Rs.4,07,695/ alongwith future
interest.
2. Shorn of unnecessary details, plaintiff's case may
be summarized as under:
Plaintiff does the business of supplying electrical
goods. Defendant also deals with business of electric goods.
Plaintiff supplied the goods and received the price of such goods
from time to time. During the period from 10/06/2016 to
01/02/2017, plaintiff supplied goods to defendant in accordance
with purchase orders placed by defendant. However, defendant
failed to make payment of supplied goods. Plaintiff has given
details of invoices. Plaintiff has supplied goods of worth
Rs.5,47,839/. Towards invoice dated 20/09/2016, defendants
issued cheque of Rs.95,454/. However, said cheque was
dishonoured on the ground of insufficient funds in the defendant's
account. Plaintiff issued legal notice dated 22/08/2014 through
RPAD. Defendant by reply of 10/05/2017, falsely denied
plaintiff's claim. Defendant has no defence. By making these
submissions, plaintiff prayed for making Summons for Judgment
absolute.
3. Defendant appeared as per O.37 R.2(3) of C.P.C.
Plaintiff applied for Summons for Judgment. After service of
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Summons for Judgment, defendant by filing reply affidavit prayed
for unconditional leave to defend the suit.
Defendant's case.
4. Defendant and plaintiff were having multiple
transactions. They were having running account and therefore,
transaction does not fall within the ambit of Order 37 of C.P.C.
5. There is no agreement between the parties regarding
interest. Defendant never agreed to pay interest claimed by
plaintiff.
6. Goods supplied by plaintiff were of inferior quality
and due to which defendant suffered the losses. Said fact was
informed to plaintiff on telephone. Therefore, plaintiff is not
entitled to claim any amount.
7. Cheque dated 16/01/2017 was given as a security
against supply of goods. Plaintiff deposited the cheque with
malafide intention. Dishonour of cheque cannot be considered as
an admission of liability.
8. Defendant further submits that he has good case on
merits. He has made out triable issues and prayed for
unconditional leave to defend the suit.
9. Heard both the sides.
10. Ld. Counsel appearing for plaintiff submitted that
defendant has not disputed receipt of the goods. Defendant has
merely denied the liability. Defendant has accepted the goods
and therefore he cannot again take the defence of inferior quality
of the goods. If the goods were of inferior quality, the defendant
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ought to have return the goods. There is no communication in
writing to show that defendant has communicated plaintiff
regarding quality of goods. Therefore, the defence of inferior
quality of goods is not sustainable in law.
11. Ld. Counsel appearing for defendant urged that suit
is based upon multiple invoices. Documents filed alongwith plaint
shows that plaintiff has maintained running account regarding
multiple transactions with defendant. Suit under order 37 of
C.P.C. would not be maintainable for running account of multiple
transactions. Defendant has come with the specific case of
inferior quality of goods. The cheque was issued as a security.
There is no written contract regarding rate of interest. As
defendant raised the issues which require trial, he is entitled for
unconditional leave to defend the suit.
12. Considered the submissions advanced on behalf of
both sides.
13. Defendant contend that Summary suit under Order
37 of C.P.C. is not maintainable for the running account based
upon multiple transactions. But, suit is not based upon running
account. Merely, maintaining running account for multiple
transactions, does not disentitle plaintiff from filing suit under
Order 37 of C.P.C. Suit is filed under Order 37 of C.P.C. on the
basis of the invoices which are in the form of written contract.
The invoices are further supported by delivery chalans signed by
defendant. The material on record shows that invoices are raised
on the defendant alongwith delivery of the goods in pursuance to
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the purchase orders. The defendant accepted delivery of the
goods alongwith invoices. There is no material on record to show
that defendant disputed the invoices. Considering the fact that,
invoices are supported by delivery chalans signed by defendant, it
must be treated as a written contract and the suit under Order 37
of C.P.C. based upon written contract is maintainable. Thus, I do
not found substance in the submission of defendant that present
dispute does not cover within the scope of Order 37 of C.P.C.
14. The next submission is regarding receipt of inferior
quality of goods. Before institution of suit, plaintiff issued notice
dated 03/05/2017 to defendant asking for outstanding amount.
Defendant replied said notice through advocate on 10/05/2017.
In reply dated 10/05/2017, defendant has merely denied the
liability. Nowhere he contends that goods supplied by plaintiff
were of inferior quality. Thus, in reply, defendant did not
ventilate the grievance regarding quality of goods. On the
contrary, it was told that defendant will check his stock and
invoices mentioned in the notice and if any amount is due,
defendant would pay it. The goods were supplied during the
period 10/06/2016 to 01/02/2017. There is no material on
record to show that defendant has communicated with plaintiff
regarding inferior quality of goods. If the goods were of inferior
quality, defendant was entitled to return the goods. In the
natural course of business, if the goods supplied were of inferior
quality, defendant would not have made further purchase orders.
Considering all these aspects, while deciding this application, I do
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not find substance in the defendant's submission regarding supply
of inferior quality of goods.
15. Defendant further submits that there is no written
contract regarding interest. It is true that invoices filed on record
do not contain stipulation regarding rate of interest. A Court can
always grant an interest on equity basis to a party entitled for the
same and therefore there is nothing wrong in law for a plaintiff to
claim an interest in a summary suit. From all above discussion, it
is held that defendant has failed to raise triable issue. In the facts
and circumstances referred above, the Court would be fully
justified in allowing summons for judgment and directing
defendant to pay the suit amount. However, purely out of mercy
and to allow defendant to contest the suit on merits, conditional
leave to defend the suit can be granted to defendant. In the
result, following order:
ORDER
1. Defendant shall deposit a sum of Rs.4,07,695/ (Rs.
Four Lacs Seven Thousand Six Hundred Ninety Five
only) in Court within a period of 12 weeks from today.
If this condition is complied with, leave to defend the
suit is granted to defendant and he shall file Written
Statement within a period of 8 weeks from the date of
deposit.
2. If aforesaid condition of the deposit is not followed by
defendant within stipulated time, plaintiff shall be at
liberty to apply for exparte decree.
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3. There shall be no order as to costs.
4. S/J No.03/2020 is accordingly disposed of.
21`/09/2021 SUNIL U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 21/09/2021
Transcribed on : 22/09/2021
Signed on : 22/09/2021
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
22/09/21 at 05.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
21/09/21
Judgment and order signed by P.O. 22/09/21
Judgment/order uploaded on 22/09/21
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