Final Order 1

Order Details: Other
Pdf Text: :1: S.J. No.7/2018 in Summary Suit No.989/2017
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT NO. 7 OF 2018
CNR NO.: MHCC010003672018
IN
SUMMARY SUIT NO. 989 OF 2017
D. Jamnadas & Co,
A Proprietorship concern having its Office at
207, Samuel Street, Vadgadi, Masjid Bunder (West)
Mumbai 400 003, through its Proprietor
Mr. Dhirajlal Jamnadas Shanghvi, Age – 79 years ...Plaintiff
Versus
Kaiser Industries Limited
204, Shivam House, Commercial Complex
Karampura, New Delhi – 110015
Also at
Commercial Office at Kaiser Industries Limited
371C, M.I.E. Bahadurgarh, Haryana – 124507
Through its Director, Mr. Sanjeev Malhotra ...Defendant.
Appearances:
Advocate Manish Trivedi for the plaintiff.
None for the defendant.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 1st APRIL, 2019.
O R A L O R D E R
Story of plaintiff in short is as under :
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1. Plaintiff has stated that based on the business report created over
the years, the defendant, inter alia, requested them herein for its
Financial Quotation for supply of certain goods (Chemicals) so that the
defendant then could accordingly place a suitable Order on them for
supply of the said goods. As required they accordingly supplied its
Financial Quotation to the defendant, separately for 3 sets of Chemicals,
vide its three separate Emails dated 16.11.2015, 16.11.2015 and 17
18.11.2015. Plaintiff has further stated that based on the above stated
Purchase Orders, they supplied the relevant goods of the specified
technical particulars vide its 3 Tax Invoices (Commercial Invoices)
under Reference No.(1) 026823 dated 19.11.2015, (2) under Reference
No.026822 dated 19.11.2015 and (3) under Reference No.026828
dated 21.11.2015 respectively. Plaintiff has further stated that based on
these 3 Commercial (Tax) Invoices, 3 separate Excise Invoices bearing
411, 410, 414 dated 19.11.2015, 19.11.2015 and 21.11.2015
respectively were also raised by them. Plaintiff has further stated that
both the said Invoices (Commercial and Excise) so raised on the
defendant by them were subject to the jurisdiction of the Courts at
Mumbai.
2. Plaintiff has further stated that the particulars of the transaction
described herein above are briefly summarized as under:
Sr.
No.
Price of
Quote of
plaintiff
Purchase
Order of
Defendant
Purchase
Order
Date
Goods
Ordered
Tax
Invoice/
No Date
Value of
Goods
Delivered
1. EMail
dated
16.11.2015
KIL/RAJ/72 17.11.2015 AOS
Powder
1000 Kg
026823
dated
19.11.2015
Rs.140888/
through V.
Trans India
2. EMail
dated
16.11.2015
KIL/JAM/73 17.11.2015 AOS
Powder
1000 Kg
026822 dt.
19.11.2015
Rs.281775/
through
the Amritsar
Transport
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Co.
3. EMail
dated
18.11.2015
KIL/BG/74 18.11.2015 Linear
Alkyl
Benzene
Sulphonic
Acid 2000
Kg
026828 dt.
21.11.2015
Rs.217260/
through
ORW Okara
Roadways
TOTAL VALUE OF GOODS SUPPLIED TO DEFENDANT – Rs.639,923/
3. Plaintiff has further stated that the goods under the above stated
Invoices were dispatched to the defendant, at the place designated by
the defendant, through 3 separate consignments under Goods
Consignment Note (Lorry Receipt) issued by (1) V. Trans India Limited,
(2) the Amritsar Transport Company Pvt Limited and (3) ORW Okara
Roadways. Plaintiff has further stated that the said goods were duly
received by the defendant to complete satisfaction of the defendant.
Plaintiff has further stated that upon receipt of the said Goods, as
invoiced and dispatched by them, the defendant caused inspection of
the said Goods and were fully satisfied about the quality and quantity
thereof so supplied by them. Plaintiff has further stated that the
defendant till date has not made any complaint about the quality or any
other parameter of the said Goods. Plaintiff has further stated that the
defendant has already consumed the said goods so supplied by them.
4. Plaintiff has further stated that the value of the goods so supplied
by them to the defendant vide 3 different set of Invoices and Lorry
Receipts, was payable by the defendant after mutually agreed Credit
Period of 60 days of Invoice date. However, the defendant miserably
failed to honour its said commitment, for it failed to make any payment
to them whatsoever. Plaintiff has further stated that then they wrote
numerous Emails, letters and made numerous requests, phonecalls to
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the defendant for paying up its dues.
5. Plaintiff has further stated that on or around 17.01.2016, and in
discharge of its payment liability, the defendant issued 3 cheques in
favour of them as per the following details :
Sr. No. Cheque No. Cheque Date
1. 168222 17.01.2016
2. 168223 17.01.2016
3. 168224 17.01.2016
6. Plaintiff has further stated that the defendant however requested
them not to present the above Cheques, for it would pay through
RTGS. Plaintiff has further stated that they relied upon the
representation of the defendant and waited for defendant's instructions
to deposit the above 3 cheques. Plaintiff has further stated that various
communications were exchanged by and between them and the
defendant in this regard. Each time, however, the defendant promised
to pay, but neglected to pay the same. At no point of time did the
defendant refuse to pay any part of its liability under the above stated 3
invoices. Plaintiff has further stated that it is on record that vide its
Email dated 03.03.2016, the defendant promised to pay via RTGS the
value of the Goods (Rs.1,40,888/) under Invoice No. 26823 dated
19.11.2015 and informed them that the corresponding Cheque against
the said Invoice was being Stopped for Payment. Plaintiff has further
stated that they in good faith, honestly thought that it shall receive the
payment and did not object to any such Stop Payment instructions
being issued by the defendant to its banker. However, the defendant
failed to send any payment via RTGS as promised. It is again on record
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that vide Email dated 28.03.2016, the defendant apologised for its
delay in paying and promised once again to pay by 15.04.2016.
However, vide its Email dated 04.04.2016, the defendant informed
them that it was interested in a LongTerm Business Relationship with
them and would pay up its dues shortly, before the end of month (April
2016).
7. Plaintiff has further stated that on 13.05.2016, vide its Email of
like date, the defendant offered them to buy out certain Chemicals from
it and to accordingly adjust the cost thereof towards its overdue
payment. On 19.05.2016, the defendant marked a mail requesting them
to raise a Purchase Order to buy the said Chemical from the defendant.
Again, on 01.06.2016, the defendant, vide its Email of like date,
reminded them to issue a Purchase Order to buy out its said Chemical
to adjust its overdue payment liability. Plaintiff has further stated that
since they had no customers for such Chemical, they vide itsEmail
dated 02.06.2016 refused the defendant's offer of buying out its
Chemical. Plaintiff has further stated that instead, it asked the
defendant to pay up for the goods so supplied by them. Plaintiff has
further stated that upon receipt of the said Legal Notice dated
22.03.2017, the defendant replied vide its letter dated 29.03.2017
wherein it has feigned ignorance of the entire transaction, but has not
refused to pay. However, it admitted having received the said goods,
but stated falsely and frivolously that the quality thereof was poor. This
statement was made in March2017 for the first time, after the goods
were supplied in 2015 and when the defendant had already used up the
said goods. Plaintiff has further stated that the defendant, in fact, had
resold the goods so supplied by them at premium, and made huge
profits on the deal, but has been wanting to avoid its payment liability
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to them and was thus acting in a malafide and frivolous manner.
Plaintiff has further stated that aggrieved by the nonpayment of its
overdue amount, they have now filed the present Summary Suit before
this Court for recovery of the principal amount of Rs.6,39,923/
together interest at the rate of 21% p.a. due and payable on the said
amount from the respective dates of the Invoices, till the date of filing of
this suit, amounting in all to Rs.8,41,499/. Plaintiff has further stated
that the defendant herein also claims interest pendent lite at 6% or at
any such higher rate as this Court may deem appropriate. Plaintiff has
further stated that the net amount due to them as on date of filing of
this Suit is Rs.8,41,499/. Therefore, plaintiff filed the present suit.
8. Plaintiff has stated in affidavit in support of Summons for
Judgment that the above suit is filed against the defendant inter alia
praying for a Decree and Order for recovering a sum of Rs.6,39,923/
being the principal amount payable by defendant to them together with
interest @ 21% from the date of demand viz. 26.11.2016 till the date of
filing of the Suit amounting in all to Rs.8,41,499/ and further praying
that the defendant be decreed to pay interest pendente lite at the rate of
18% per annum on the Suit amount of Rs.8,41,499/ from date of filing
the Suit till the date of payment. Plaintiff has stated that they are
entitled to get sum of Rs.8,41,499/ from defendant.
9. Defendant appeared in the suit. Thereafter, plaintiff taken out
this Summons for Judgment. It appears defendant failed to file reply or
file application for leave to defend to Summons for Judgment.
Therefore, plaintiff is entitled to get judgment and decree as per Order
XXXVII Rule (3) subrule 6, sub rule (a) of the Code of Civil Procedure,
1908. Plaintiff has produced alongwith plaint copy of emails, copy of
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purchase Order, Copy of Lorry receipt and copy of legal notice on
record. In view of the circumstances defendant failed to apply for leave
to defend or file reply to Summons for Judgment and the allegations in
the plaint are corroborated by documentary evidence, plaintiff has
shown that he is entitled to get amount of Rs.8,41,499/ from the
defendant.
10. It appears that as per Section 34 of the Code of Civil Procedure, it
will be proper to direct defendant to give interest @ 9% p.a. on the
amount of Rs.6,39,923/ from the date of filing of the suit till its
realisation. Hence, following Order:
ORDER
1. Summons for Judgment No.7/2018 is made absolute.
2. It is hereby ordered and decreed that :
(i) Defendant is directed to pay sum of Rs.8,41,499/ to plaintiff
alongwith interest @ 9% p.a. on the principal amount of Rs.
6,39,923/ from the date filing of the suit till its realisation.
(ii) Defendants shall bear the cost of plaintiff at their own.
(iii) Plaintiff is entitled for refund of Court fee as per rules.
(iv) Decree be drawn accordingly.
(v) Summary Suit No.989/2017 is disposed of.
(S.P. AGARWAL)
Judge,
Date: 01.04.2019. City Civil Court,
Gr. Bombay.
Dictated on : 01.04.2019
Transcribed on : 01.04.2019
Signed on : 01.04.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
05.04.2019 At 5:44 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Ms. S.P. Agarwal
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
01.04.2019
Judgment/Order signed by P.O. on 01.04.2019
Judgment/Order uploaded on 05.04.2019
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