Interim Order 1

Order Details: Other
Pdf Text: SJ 61/2016 SUIT 179/2014 1
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT NO.61 OF 2016
IN
SUMMARY SUIT NO. 179 OF 2014
(CNR.NO.MHCC010019092016)
M/s. Kapp Colour Chem
a partnership firm Registered
Plaint Admitted on 31/01/2014 Indian
Partnership Act: 1932, and
having its Principal Place of
Business at 215, Lamba
Building, Flat No.1. Sir
Bhalchandra Road Matunga
Mumbai400 019 ...Plaintiffs.
V/s.
M/s.KSL & Industries Ltd.
A Company Registered Under the
Provisions of Companies Act 1956,
Having its registered office at,
Plot No.69 Dhanu Udyog Industrial
Area Piperia, Silvassa(U.T.)
And also Having Address at:
Raghuvanshi Mills Compound Senapati
Bapat Marg,Lower Parel Mumbai 400 013. ...Defendants.
Appearances:
Advocate Mr.P.M.Shah for the Plaintiffs.
Advocate Ms. Lalita for the Defendants.
CORAM : HIS HONOUR JUDGE
M.S.LONE
(C.R.NO.28)
DATED : 3RD AUGUST 2019
ORAL O R D E R
1. This is summons for judgment for amount of
Rs.3,45,525/.Before proceeding further it will be proper here to note
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that earlier this summons for judgment as decided by my Sister Judge
Smt.K.D.Shirbhate on 21/12/2016 whereby, the conditional leave to
defend was granted to defendants subject to depositing of a sum of
Rs. 3,00,000/ in court. The said order as challenged by the defendants
in writ petition No.4312/2017 before the Hon'ble High Court of
Bombay. The Hon'ble High Court of Bombay was pleased to set aside
the impugned order and remanded the matter back to this court for
deciding the summons for judgment afresh and passed a reasoned
order. Accordingly, this summons for judgment is heard afresh and is
decided accordingly.
2. The plaintiff case in nut shell is that plaintiff is a partnership firm
and are dealer in dyes and chemicals. Defendant is a limited company.
According to the plaintiff, pursuant to the orders placed by defendant
company, plaintiffs firm has sold, supplied and delivered from time to
time various goods to defendant/company. The plaintiff has raised
invoices which were duly received and acknowledged by the said
defendant company. The plaintiff has claimed outstanding amount of
Rs.3,45,525/ which they have demanded with defendant company.
The defendant company neither replied nor paid any amount to the
plaintiff, therefore, this suit.
3. Defendants have filed their appearance and thereafter this
summons for judgment was taken out by the plaintiff.
4. The defendants have resisted this summons for judgment by filing
reply. Defendants have stated in reply that the summary suit is not
maintainable as plaintiffs have failed to annexed purchase orders along
with plaint. Further, the defendants have challenged the territorial
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jurisdiction of this court as all the transaction, according to the
defendants, have taken place at District Thane. Further, the defendants
have also challenge this suit on the grounds of limitation. On the above
grounds the defendants have prayed for unconditional leave to defend.
5. Heard Ld.counsel for plaintiffs and Ld.counsel for defendants.
6. From the material on record following points come for my
determination and my findings with reasons are as follows:
POINTS FINDINGS
1. Whether plaintiff is entitled for
summons for judgment?
No
2. Whether defendants are
entitled for leave to defend, if yes,
conditional or unconditional?
Yes
Unconditional
3. What order? As per final order
REASONS
AS TO POINT NO.1 to 3
7. The Ld.counsel for plaintiff has submitted that the suit of plaintiff
is based on invoices and therefore the suit is maintainable in the present
Form. The orders of supply of goods were placed by the defendants to
the office of plaintiff which is at Mumbai. The defendants also have
office at Mumbai. Therefore, this court has jurisdiction to try and
entertain this suit. Further the goods were supplied to defendant
company from time to time and pursuant to the last bill the suit is well
within limitation.
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8. To support his arguments, the Ld.counsel for plaintiff has relied
on various invoices of different dates, particulars of claim, demand
notice and copy of ledger.
9. The Ld.counsel for defendants have submitted that the invoices
does not contain any stamp about receipt of goods by
defendant/company. The plaintiff has not filed any delivery chalan or
any transportation receipts which would show that goods were
delivered to defendant/Company. The invoices which are relied by
plaintiffs are of the year 2004 and this suit is filed in the year 2014
which is barred by law of limitation and lastly, the defendant/company
situated at Thane District, they do not have any office at Lower Parel
and therefore, this court has no territorial jurisdiction to try and
entertain this suit.
10. The learned counsel for defendant has relied on following
authorities:
i) Neebha Kapoor Vs.Jayantilal Khandwala and Ors., AIR 2008
SC 1117, the unconditional leave to defend was granted as plaintiff had
failed to file original documents on record. The Hon'ble Supreme court
has observed that when the original documents are not produced then
rightly the unconditional leave to defend was granted. It is most
respectfully submitted that this authority is not applicable to the present
case as plaintiff has filed original documents on record.
ii) Sumani ferro Alloys Ltd.Vs.Super Forging Steel Sales Pvt.Ltd
and Anr.Manu/WB/0033/1982, the plaintiff claim was based on
several Hundies. It is most respectfully submitted that this authority is
not applicable to the present case as this case is based on transaction of
purchase and sale of goods.
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iii) Smt.Kiranmoyee Dassi and another Vs.Dr.J.Chatterjee
MANU.WB/0141/1945, it was a civil suit between landlord and tenant,
therefore, it is most respectfully submitted that ratio as laid down in
that case is not applicable in this case.
iv) State Bank of Hyderabad Vs.Rabo Bank,
MANU/SC/1094/2015, it was the civil suit between the bank with
regard to dishonoured Bill of Exchange. It is most respectfully submitted
that ratio is laid down in that case is not applicable to this case as facts
are different.
11. Plaintiff claims the amount of Rs.3,45,525/ from the
defendant/company on the ground that it has supplied various goods
from time to time of different amounts to defendant company. The
details of the invoices are given in para 3 of the plaint. The first invoices
is of date 12/03/2003 and thereafter, there are 34 invoices which are
mentioned. The last invoice is of 30/09/2004. This suit is filed on
30/09/2013 therefore, the objection of limitation taken by defendant
has substance. The point of limitation being an issue involving fact and
law it can only be decided by the full fledge trial. The reason being
there were various transactions between plaintiff and
defendant/company and therefore, evidence would require to ascertain
the period of limitation.
12. The objection taken by the defendant is also about the
maintainability of this suit in summary form. In this respect if the
documents filed on record is perused the plaintiff has filed original
documents in which there are various delivery challans and transport
receipts. Those delivery challans along with invoices clearly shows that
the claim of plaintiff is based on these documents and it can be safely
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inferred that invoices are nothing but written contract and therefore,
the suit of summary nature based on invoices is maintainable. However,
the issue regarding non receipt of goods as claimed by defendants is
kept open and to decide this issue the evidence is necessary.
13. Lastly, the defendants have taken objection about the territorial
jurisdiction of this court. According to the defendants, defendant
company is set up at district of Thane and whole transaction had taken
place at district Thane. On the other hand, the plaintiff has claimed that
they received the purchase orders at Mumbai office and defendants
have also office at Lower Parel, Mumbai. From the plaint, it seems that
part of cause of action that the placement of orders was made in
Mumbai and therefore as per section 20(c) of C.P.C.1908 as part of
cause of action has arisen at Mumbai, this court has territorial
jurisdiction to try and entertain this suit.
14. As per Order 37(3)(5) of the CPC 1908 the defendants have
raised triable issue. Prima facie it seems that the defence of defendants
are not frivolous. Though there are invoices and delivery challans but
there is not a single acknowledgement of the defendant company about
the receipt of the goods. Therefore, summons for judgment cannot be
made absolute. On the other hand, defendants are entitled for
unconditional leave to defend as they have raised triable issues.
Therefore, point No.1 is answered as 'No' point No.2 is answered as 'Yes'
unconditional leave and following order is passed.
ORDER
1. Summons for Judgment No.61 of 2016 stands rejected.
2. Unconditional leave to defend is granted to defendant.
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3. Defendant to file written statement within 4 weeks from the date
of order.
4. The Registrar of the court is directed to take necessary steps to
convert the suit from summary to short cause.
5. Summons for Judgment No.61 of 2016 stands disposed of
accordingly.
(M.S.LONE)
Judge,
Date: 03/08/2019 City Civil Court,Gr. Bombay
Dictated on : 03/08/2019
Transcribed on : 13/08/2019
Signed on : 19/08/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
19/08/2019 at 3.20p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Shri.M.S.Lone
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
03/08/2019
Judgment/Order signed by P.O. on 19/08/2019
Judgment/Order uploaded on 19/08/2019
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