Final Order 1

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MHCC010003132019
Presented on : 09/01/2019
Registered on : 09/01/2019
Decided on : 06/10/2021
Duration : Y M D
02 08 27
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
SUMMONS FOR JUDGMENT NO.11 OF 2019
IN
COMMERCIAL SUIT NO.682 OF 2021
(SUMMARY SUIT NO.646 OF 2018)
Hitesh Khemchand Bhansali, Aged 38 years ]
Proprietor of M/s. Kamal Impex Fitting, ]
Having office at Shop No.G18, 89/91, ]
Durgadevi Street, Mumbai400 004. ] ..Plaintiff
Versus
Indotech Industrial Solutions Pvt.Ltd ]
A Company incorporated under Indian ]
Companies Act, 1956, Having its registered ]
office 2nd floor, Ankur Plaza, Near ]
Matruchaya Nursing Home, Warje Flyover, ]
Warje, Pune411 058, Maharashtra, And ]
also at: S.N.44, Shed No.09, NR Hemant ]
Dangat Shed, Near Bank of Maharashtra, ]
Near Abhiruchi Parisar, Next to Dhumas ]
Electricals, Narhe, Pune411041, ]
Maharashtra, India. ] ..Defendant
______________________________________________________
Ld. Advocate Ajit Shobhawat for plaintiff
Ld. Advocate M.V.Singhania for defendant
______________________________________________________
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ORAL ORDER
(Dated this 6th day of October, 2021)
1. Summary Suit is filed as per Order 37 Rule 2 of
C.P.C. for recovery of an amount of Rs.6,23,067/ alongwith
future interest.
2. Briefly stated, plaintiff's case, is as under:
In pursuance to the purchase order dated
08/09/2017 placed by defendant, plaintiff supplied goods of
worth Rs.6,08,054/ as per invoice Nos.304 and 307 to defendant
on 12/09/2017. Goods were sold to defendant on credit of 30
days. Defendant agreed to pay interest at the rate of 18% p.a. for
unpaid amount after expiry of 30 days. Plaintiff asked defendant
to pay the outstanding amount. Defendant made payment of
Rs.50,000/ on 12/03/2018 by IMPS, but, failed to make
payment of balance amount. Plaintiff send demand notice dated
13/04/2018 asking defendant to make payment of outstanding
amount. Defendant was served with said notice, but, failed to
make the payment. Therefore, summary suit is filed as per Order
37 Rule 2 of C.P.C.
3. After receipt of writ of summons, defendant tendered
his appearance. Thereafter, plaintiff has taken out this Summons
for Judgment.
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4. Summons for Judgment was duly served upon
defendant on 16/01/2019. Defendant applied leave to defend the
suit within stipulated period. Defendant submits that invoices
filed on record are fabricated. Defendant did not receive the
invoices. Defendant did not receive the goods alleged to be
supplied by plaintiff. Plaintiff did not file purchase order
deliberately along with plaint. There is no contract between the
parties and therefore Summary Suit u/o. 37 Rule 2 of C.P.C. is
not tenable. By making these submissions, defendant prayed
unconditional leave to defend the suit.
5. Plaintiff filed Reply Affidavit to defendant's
application for leave to defend the suit. Plaintiff has specifically
denied all the avernments in the application submitted by
defendant. Plaintiff submits that it has supplied goods under
invoice nos.304 and 307 to defendant through 'Kranti Transport'.
Defendant has made part payment of Rs.50,000/ by IMPS.
Defendant availed the set off facility of Goods and Service Tax in
respect of invoices raised by plaintiff. By making these
submissions, plaintiff prayed to reject the defendant's prayer
regarding unconditional leave to defend the suit.
6. Ld. Counsel for plaintiff urged that summary suit on
the basis of invoices is maintainable as per Order 37 Rule 2 of
C.P.C. as invoices can be construed as 'Written Contract'. Invoices
contain stipulation as to interest and therefore the rate of interest
mentioned in the invoices can be construed as interest agreed by
defendant. It is further submitted on behalf of plaintiff that
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defendant has taken out two defences i.e. invoices are bogus and
defendant did not receive the goods. But, there is no material on
record to substantiate these defences. Plaintiff further submits
that defendant received the demand notice dated 13/04/2018,
but, failed to reply the said notice. Defendant choose to keep
mum and therefore it can be presumed that plaintiff's claim is due
and payable.
7. It is further submitted on behalf of plaintiff that
defendant made part payment of Rs.50,000/ on 12/03/2018 by
IMPS. If defendant did not receive the goods, there is no question
of making payment of Rs.50,000/. By making all these
submissions, plaintiff urged that defendant did not raise any
triable issue and therefore Summons for Judgment be made
absolute. In the alternative, it is submitted that defendant be
directed to pay suit amount and on depositing of suit amount,
leave to defend the suit may be granted.
8. Ld. Counsel appearing for defendant controverted
above submissions. It is submitted that list of documents filed
alongwith plaint mentions Purchase order at Sr. No.1, but, said
Purchase order is not filed alongwith plaint. So also list of
documents contain document delivery challan/receipt at Sr.No.3,
but said document is not filed alongwith list. Copy of invoices
filed alongwith plaint are not signed by plaintiff. There is no
material on record to show that invoices filed on record are
served upon defendant. There is no contract between the parties
and therefore Summary Suit is not maintainable as per Order 37
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Rule 2 of C.P.C.
9. Considered the submissions advanced on behalf of
both sides. It is not in dispute that suit is based upon invoices.
Plaintiff has filed on record copy of invoices alongwith plaint.
These copies do not bear signatures of authorized signatory of
plaintiff. So also, from copies filed on record, it cannot be
inferred that defendant received these invoices. Alongwith Reply
Affidavit also, plaintiff filed invoices Nos.304 and 307. These
invoices bear signatures of authorized signatory of plaintiff. But,
from these invoices also, it cannot be inferred that these invoices
were served upon defendant.
10. Defendant has challenged receipt of goods under
invoice Nos.304 and 307. Plaintiff relied upon copy of transport
receipt issued by Kranti Transport. On 09/02/2021, Court
directed plaintiff to file original documents in his possession.
Plaintiff has filed on record carbon copy of receipt issued by
Kranti transport. As per said receipt, goods of invoice no.304
weighing 300 KG were sent to consignee Indotech Industrial i.e.
defendant. On perusal of invoice No.307, it is evident that total
weight of the goods under invoice no.307 is 2470 kg. Invoice
no.307 is not mentioned in the receipt of Kranti transport. The
weight of the goods under invoice no.307 is 2470 KG and weight
of goods mentioned in the transport receipt is 300 KG. Thus,
from the receipt of Kranti Transport filed on record, it cannot be
inferred that goods under invoice No.307 were supplied to
defendant under said receipt.
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11. Defendant is disputing the factum of receipt of
goods. As discussed above, there is no material on record to show
that invoice no.304 and 307 were served upon defendant. From
the transport receipt filed on record, it cannot be inferred that
goods mentioned in invoice nos.304 and 307 were received by
defendant. On the basis of part payment of Rs.50,000/ it cannot
be concluded that plaintiff supplied goods under invoice nos.304
and 307 to defendant. Defendant has raised issue of non receipt
of goods mentioned in invoice Nos.304 and 307 and said issue
requires trial. It is well settled that if defendant raises a triable
issue indicating that he has a fair or bonafide or reasonable
defence although not a possibly good defence, the defendant is
entitled to unconditional leave to defend the suit. Defendant has
raised a triable issue, therefore, he is entitled for unconditional
leave to defend the suit. In the result, following order:
ORDER
1. Unconditional leave to defend the suit is granted to
defendant.
2. Defendant shall file Written Statement within 30 days
from today.
3. No order as to costs
4. Summons for Judgment No.11 of 2019 is disposed of
accordingly.
06/10/2021 S.U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 06/10/2021
Transcribed on : 06/10/2021
Signed on : 08/10/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
08/10/21 at 05.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
06/10/21
Judgment and order signed by P.O. 08/10/21
Judgment/order uploaded on 08/10/21
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