Final Order 1

Order Details: Other
Pdf Text: SJ 10/2018 SUM.SUIT 1352/2017 1
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT NO. 10 OF 2018
IN
SUMMARY SUIT NO. 1352 OF 2017
CNR.NO.MHCC010005812018
Adarsh Impex Enterprises
a proprietorship concern of Mr.Mohnia
Neeraj Singh, having its office at A503,
Shree Vijaya Residency, Lal Baug
Parel(E), Mumbai400012. ...Plaintiff
V/s.
1. Rashmi Steels
A company incorporated under the
Companies Act 1960 Bunder,
Link Road, Malad(W),
Mumbai400 064.
2. Babulal G Bohra age not known
Occ.Business, both having office at
102, 1st floor, Rockford House, 444.
Pathe Bapurao Marg, Off.Sindhi Lane,
Mumbai400004. ...Defendants.
Appearances:
Advocate Mr.Hegde for the Plaintiffs.
Advocate Mr.Nadar for the Defendants.
CORAM : HIS HONOUR JUDGE
SHRI. M.S.LONE
(C.R.NO.28)
DATED : 17TH OCTOBER 2019
ORAL O R D E R
This is summons for judgment for decree of Rs.60,26,730/ with
future interest.
2. The plaintiff case in nut shell is that the plaintiff is proprietor of
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M/s.Adarsh Impex Enterprises which deals with purchase, sale and
consultancy of nonferrous scrap goods and material in the market and
import and trading of metal scrap. Pursuant to the orders of defendants
plaintiff sold, supplied and delivered, on 19/03/2016 scrap material to
defendants. The said goods were received by the defendants and the
defendants have also made payment with respect to said goods.
Thereafter again in 2nd week of April 2016 defendants placed order to
purchase aluminum scrap. After due discussions, the defendants have
agreed to purchase two consignments of aluminum scrap, one weighing
24.6 metric tons and other weighing 25.51 metric tons @ Rs.104.71 per
kilogram. The said goods were delivered at the warehouse of
defendants situated at Panvel. The plaintiffs have raised two invoices
totaling Rs.60,26,730/ and demanded the outstanding amount of
invoices. The defendants requested to reduce the agreed rate of goods
to enable them to immediately pay the outstanding amount.
Considering the good will of business and ongoing business relations
with defendants plaintiff reduced the rate of the material from 104.71
per kilogram to 102.71 per kilogram but defendants failed to pay the
said amount therefore, this suit.
3. The defendants have resisted the summons for judgment by filing
reply. The defendants have contended that plaintiff have suppressed
material facts. The defendants have admitted that plaintiff have
supplied goods under two invoices but the said goods were not as per
the sample. The defendants have placed an order of the goods to be of
particular specifications but plaintiff had supplied goods of inferior
quality which were not as per particular specifications. The scrap
supplied by the defendants was aluminum mixed with zinc, stainless
steel etc. because of which the defendants have offered to return back
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the said material. The plaintiff has supplied the inferior quality product
to the defendants which was not up to the mark. The defendants
required the aluminium scrap for production purpose. There were also
rubber attachments to the scrap because of which the product of
defendants was inferior and defendants suffered loss of Rs.36,23,000/ .
Therefore, unconditional leave be granted to defendants.
4. 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 as per the conditions stated
in final order.
3. What order? As per final order
REASONS
AS TO POINT NO.1 & 3
5. Ld. Advocate for plaintiff has reiterated the contents of
plaint in his arguments. The advocate has relied on two invoices,
photographs of scrap, demand notice, reply of defendants, rejoinder
reply.
6. The Ld. counsel for defendants have reiterated contents of
reply and relied on the email correspondence. The summons by police
on the complaint made by the plaintiff. Ld. counsel also relied on
Jyotsna K Valia Vs. T.S.Parekh, 2007 BCR 3772.
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7. It is undisputed that the defendants had ordered aluminium scrap
with the plaintiffs and plaintiffs supplied the same. It is the case of the
defendants that the said supply of the aluminium scrap was mixed with
other materials because of which the defendants have suffered losses.
This are triable issues which have to be decided only after the evidence.
In case Jyotsna K Valia (Supra) the issues about the settled account
duly confirmed by the defendants and other similar questions was
referred to the Hon’ble Larger bench of the Hon’ble High Court of
Bombay. In the end of the judgment the Hon’ble High Court of Bombay
had relied on M/s Mechalec Engineering and Manufactures Vs. M/s
Basic Equipment Corporation, AIR 1977 SC 577. The ld counsel for
defendants have relied on those directions, but the decision in Mechalec
Engineering and Manufactures (supra) has been overruled in the case of
IDBI Trusteeship Services Ltd Vs. Hubtown Ltd, 2017 1 SCC 568, hence
it is respectfully submitted that the decision in Jyotsna K. Valia is not
applicable to the present case.
8. It is also undisputed that but as the defendants have not paid any
amount against the goods which they have received. Further defendants
have raised the issue that they have sustained loss of Rs.36,23,000/ but
there is nothing in their defense to elaborate how and in what manner
they have sustained such loss. The invoices of plaintiff is of Rs.
60,26,630/ therefore unconditional leave cannot be granted to the
defendants. Hence, the order.
ORDER
1. Summons for Judgment No.10/2018 stands rejected.
2. Defendants are granted leave to defend subject to payment of
Rs.30,00,000/ (Rupees Thirty Lakhs only) within eight weeks
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from the date of order.
3. On depositing the aforesaid amount of Rs.30,00,000/ (Rupees
Thirty Lakhs only) the Registrar is directed to invest the said
amount in any nationalize bank for initial period of one year and
seek further directions of the court as and when required.
4. Summons for Judgment No.10/2018 is disposed of accordingly.
(M.S.LONE)
Judge,
Date: 17/10/2019 City Civil Court,Gr. Bombay
Dictated on : 17/10/2019
Transcribed on : 17/10/2019
Signed on : 23/10/2019
ERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
24/10/2019 at 3.10p.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
17/10/2019
Judgment/Order signed by P.O. on 23/10/2019
Judgment/Order uploaded on 24/10/2019
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