Final Order 1

Order Details: Other
Pdf Text: MHCC010005932020 Presented on 14/01/2024
Registered on 14/01/2024
Decided on 22/04/2024
Duration 04Y: 03M: 8D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 07 OF 2020
IN
SUMMARY SUIT NO. 596 of 2019
Shree Auburn Enterprises Pvt. Ltd., ]
a Partnership Firm through its ]
Narendra Gandhi, having its ]
office at Zaveri Niwas, 2nd Floor, ]
room No.5, 31 Kennady Bridge, ]
JSS Marg, Mumbai 400004, ]
312, 3rd Floor, Parekh Market ]
Kennedy Bridge, Opera House, ]
Mumbai-400 004. ]...Plaintiff
V/s.
M/s. Himsan Polymer Pvt. Ltd., ]
a Company registered under Companies Act,]
1956, having its office at Gala A.B. 1st Floor ]
Vishal Industries Estate, ]
Near Organic Coating, Ghodbunder Road ]
Mira Road (E), Dist. Thane-401107. ]...Defendant
Appearance:-
Ld.Advocate Mr. R. A. Shaikh for the plaintiff.
Ld. Advocate Mr. Jitesh P. Goyal for the defendant.
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CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 22/04/2024.
ORDER
( Dictated and pronounced in open Court)
01] The plaintiff has filed this Summons of Judgment against
defendant on 09/01/2020. Defendant filed their reply with prayer to
dismiss Summons for Judgment and prayed for unconditional leave to
defend.
02] Plaintiff carries on business of manufacturing and
exporting of HT Switchgears and Rubber Molding Products. Defendant
is engaged in the business of Polymer, Rubber Moulding Products,
Silicone Transparent Rubber Sheet , Silicone White Rubber Sheets etc.
Plaintiff has supplied goods to the defendant on 14/04/2018 for
Rs. 12,142.20/-, on 24/4/2018 for Rs. 24,631.32/-, on 27/04/2018
for Rs.2,017.80/-, on 04/05/2018 for Rs. 28,780.20/-, on 11/05/2018
for Rs. 3,363/-, on 11/05/2018 for Rs. 31,470.60/-, on 11/05/2018
for Rs.8,425.20/-, on 18/05/2018 for Rs.11,894.40/-, on 25/05/2018
for Rs. 4,984.32/- and on 16/06/2018 for Rs. 30,886.50/-. Further,
accordingly plaintiff has raised invoices on the defendant. The plaintiff
has supplied said goods to the defendant on his address and same has
been received by the defendant. The defendant has neglected and
failed to pay an amount of Rs.1,68,684.54/- against goods supplied
from time to time. The plaintiff is entitled to recover the said amount
from the defendant. Plaintiff is also entitled for interest at the rate of
24% p.a. on the said amount as mentioned in the invoices. Therefore,
plaintiff issued demand notice dated 05/10/2018 to the defendant and
called upon him to pay the outstanding amount. Defendant has
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received said notice however, failed to repay the said amount.
Therefore, he has filed the present suit. It is the only defence of the
defendant that the name of the company is different and they have not
received any goods from the plaintiff. As per the plaintiff, earlier name
of the defendant company was different and it has been changed later
on. Both the companies have same address and using same email and
phone number. Even, both companies are operated by GST and PAN
number. Therefore, defence of the defendant is not tenable. Hence,
summons for judgment may be allowed.
03] On the other hand, it is argued on behalf of the defendant
that plaintiff has filed suit against M/s. Himsan Polimer Pvt. Limited
for recovery of amount. However, on perusing invoices filed by the
plaintiff, it appears that said invoices are not raised on this defendant.
The defendant is not concerned with the plaintiff. Further, goods
supplied by the plaintiff to the proprietary concern and not private
limited company. Further, defendant is not concerned with the
transaction between the said proprietary concern with the plaintiff.
The proprietary concern and this defendant are two different entities.
Further, plaintiff has not filed any document on record to show that he
has supplied goods to this defendant. Therefore, plaintiff is not
entitled to recover any amount from this defendant. The plaintiff has
to prove privity of contract between this defendant and plaintiff.
Therefore, this is the triable issue which needs to be adjudicated by
adducing the evidence. Hence, defendant may be granted
unconditional leave to defend the suit. Hence, summons for judgment
may be dismissed.
04] Perused Summons for Judgment, reply to summons for
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Judgment and rejoinder. Heard both the parties. On perusing record,
it appears that plaintiff has filed suit against the defendant i.e. M/s.
Himsan Polymer Pvt. Ltd. As per the plaintiff, he has supplied goods
to the defendant however, defendant has denied said fact. Plaintiff has
filed documents i.e. invoices raised against the defendant. On
perusing said documents, it appears that same are raised on Himsan
Polymer and not on defendant. It is the contention of the plaintiff that
defendant was earlier proprietary firm and later on transform in to a
private limited company. It is the specific case of the defendant that
Himsan Polymer is the proprietary concern and defendant is private
limited company and these two are different entities. The plaintiff has
not filed any document to substantiate his contention that earlier
defendant was proprietary firm nor it is specifically pleaded as to when
it has been converted into private limited company.
05] On perusing documents filed by the plaintiff, it appears
that invoices are raised on Himsan Polymer and not on defendant.
Moreover, there is nothing on record to show that as per invoices
goods are delivered to defendant as there is no signature of defendant
as receiver. Defendant has specifically denied that any amount is
outstanding against it. Therefore, I am of the view that issue raised by
the defendant whether suit is maintainable against defendant and
whether goods are delivered to defendant as well as whether Himsan
Polymer converted into M/s. Himsan Polymer Pvt. Ltd. are triable
issues which needs to be adjudicated after adducing the evidence.
Defendant has specifically denied liability of outstanding amount.
Therefore, considering facts and circumstances of the case, I am of the
view that defendant is entitled to unconditional leave to defend the
suit. Hence, I proceed to pass the following order.
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O R D E R
1] Summons for Judgment No.07/2020 is disposed of as follows.
(a) Unconditional Leave to defend the suit is granted to the
defendant .
(b) The defendant is directed to file its written statement on
or before next date.
2] Summons for Judgment No.7/2020 be disposed of accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date: 22/04/2024 Court Room No.81
Dictated on: 22/04/2024
Corrected & signed on:25/04/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
26/04/2024 at 10.40 a.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
22/04/2024
JUDGMENT/ORDER signed by P. O. on 25/04/2024
JUDGMENT/ORDER uploaded on 26/04/2024
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