Final Order 1

Order Details: Other
Pdf Text: 1 SJ 24/19 in Comm. Suit 814/21
SUMMONS FOR JUDGMENT NO. 24 OF 2019
IN
COMMERCIAL SUIT NO. 814 OF 2021
(ORIGINAL SUMMARY SUIT NO. 1346 OF 2018)
CNR NO. : MHCC010006442019
Exh.3
Ambalal Prakashchandra Jain ….Plaintiff
Versus
Upendra Hastimal Porwal ...Defendant
Appearance:
Adv. Savita Pattni for Plaintiff.
Adv. Dhruvika Bhayani for Defendant.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 8th OCTOBER 2022
J U D G M E N T
(Delivered on : 08.10.2022)
The plaintiff has filed this Summary Suit for the recovery of
the amount of Rs. 12,85,114/ along with interest at the rate of 2% per
month on the principal amount from the date of filing of the suit till
realization with cost.
2. The plaintiff moved this Summons for Judgment bearing
no. 24 of 2019 on 14.01.2019 in Commercial Suit No. 814 of 2021.
Perused the Summons for Judgment, Affidavit in reply and suit
proceeding.
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3. Heard Learned Counsel Dhruvika Bhayani for Defendant.
The defendant also filed written argument at Exh.2. The plaintiff and
his Advocate remained absent for argument.
4. The case of the plaintiff in brief is as under :
The plaintiff is carrying on the business of Imitation Jewellery in
the name and style of M/s. Jainam Fashion Jewellery. The plaintiff is a
Proprietor. The defendant is a Sole Proprietor and having its office
/residence at the address mentioned in the title clause. The defendant
approached the plaintiff and sought urgent business loan and instructed
the plaintiff to transfer the advance amount of Rs.1,55,400/ to the
office staff namey Mr. Dilip F. Jain's account through RTGS dated
01.01.2018. The defendant promised to make the imitation jewellery
and give it to the plaintiff which the defendant still has not done. In
February, 2018, the defendant placed the order of gold bars weighing
300 grams and as per the instructions, and in terms of assurance,
friendly relation and relying upon sweet words and promises of
defendant, the plaintiff purchased the gold bars as per Invoice No.
11506 dated 17.02.2018 from Nakoda Bullion, Zaveri Bazar, Mumbai
and paid the total amount of Rs. 9,49,630/ on behalf of the defendant.
The Statement of Account also shows the payment of the amount made
to the Nakoda Bullion on behalf of the defendant. Pursuant to the
orders placed by the defendant with the plaintiff, the plaintiff sold,
supplied and delivered to the defendant gold bars, which have been
duly received and utilized by the defendant without any objections. The
defendant has confirmed the delivery and has acknowledged the receipt
of gold bars and also sent a Whats App message to the plaintiff stating
that the defendant has received the said gold bars. The defendant had
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promised that he will pay the total amount of Rs. 11,05,030/ to the
plaintiff within short period of time. However, he failed to repay the
said amount. Therefore, the plaintiff through his Advocate sent notice
on 14.09.2018 and called upon the defendant to pay the amount to the
plaintiff. The said notice was duly served to the defendant. The
defendant has neither replied to the said demand notice nor complied
with the same. The plaintiff submitted that the defendant defaulted and
failed and neglected to pay the outstanding amount. Hence, the plaintiff
filed the suit for the recovery of the amount of Rs. 12,85,114/ from the
defendant along with interest.
5. The defendant by filing reply to the Summons for
Judgment has contended that the suit filed by the plaintiff is sham and
bogus one. The plaintiff has no cause of action to file the present suit
against the defendant. The suit is not maintainable under the provisions
of Order XXXVII. The plaintiff has not approached the Court with clean
hands. The plaintiff has made misleading and wrong statement in the
plaint and in fact suppressed vital documents in the present suit. On
these sole grounds, the Summons for Judgment is liable to be rejected.
It is further submitted by the defendant that the plaintiff has throughout
been fraudulently twisting and misstating the facts in the present
matter. It is unimaginable as to how the plaintiff is trying to put the
allegation that the said gold bars were purchased at the behest of the
present defendant. He submitted that there is no whats app message or
any acknowledgment signed by the defendant. The plaintiff has
miserably failed to produce any evidence suggesting that such a
transaction was entered between the parties. The defendant further
contended that he is not aware of any transaction by and between the
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plaintiff and the said Mr. Dilip Jain and therefore the defendant is not
liable to the plaintiff for any such alleged transaction. There was no
agreed terms and conditions ever with regard to any transaction. The
defendant further contended that the suit is not maintainable against
the defendant. Lastly, the defendant prayed for dismissal of Summons
for Judgment.
6. Heard Learned Counsel Ms. Dhruvika Bhayani for the
defendant at length. It is argued by the defendant that the suit is not
maintainable. The suit is filed for extracting illegal money. According to
defendant, the goods were not delivered and the forged documents
regarding the delivery of the goods are filed on record. The defendant is
not liable to pay any amount to the plaintiff. She further submitted that
the defence of the defendant is disclosed in the affidavit in reply. It is
submitted that the defendant is having defence. Hence, he prayed for
dismissal of Summons for Judgment. The defendant has also filed on
record written notes of argument at Exh.2.
7. The plaintiff was given sufficient opportunity to argue the
Summons for Judgment. But inspite of giving sufficient opportunity, the
plaintiff failed to argue the Summons for Judgment. Therefore, the
matter posted for order without argument of the plaintiff.
8. After considering the submission of Learned Advocate for
the defendant and after perusing the papers on record, it appears that
the plaintiff has filed the present suit for the recovery of the amount of
Rs. 12,85,114/. According to the plaintiff, the defendant placed the
order of gold bars weighing 300 gram. The plaintiff had purchased the
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gold bars from Nakoda Bullion and paid the total amount of Rs.
9,49,630/ on behalf of the defendant. The plaintiff also made averment
that as per the order placed by the defendant, he sold, supplied and
delivered the gold bars to the defendant. The plaintiff has relied upon
the copies of invoice and the copies of acknowledgment receipt. The
copy of invoice show that as per Invoice No. 11506, the gold bars were
purchased from Nakoda Bullion. It is to be noted that the said invoice
does not bear the signature of the defendant. The plaintiff also relied
upon the copy of acknowledgment receipt, which is marked as Exh.'C'. It
is seen that the said receipt bears the signature of one Dilip Jain. The
said acknowledgment receipt does not bear the signature of the
defendant.
9. In the present case, it reveals that the plaintiff has made
contradictory statements in the plaint. The plaintiff has pleaded that he
purchased the gold bars from Nakoda Bullion on behalf of the
defendant. In para no. 4 of the plaint, the plaintiff has mentioned that
as per the order placed by the defendant, he sold gold bars to the
defendant. Thus, it appears that the plaintiff has made contradictory
statements regarding the transaction between the parties. Admittedly,
there is no written agreement between the parties regarding purchase
of gold bars.
10. It is seen from the invoice as well as bank statement of the
plaintiff that the plaintiff had placed the orders with Nakoda Bullion
and Nakoda Bullion has supplied gold bars to the plaintiff for which the
plaintiff had paid the amount to the Nakoda Bullion. The invoice
produced by the plaintiff has been issued by the Nakoda Bullion and it
shows about the transaction between the plaintiff and the said Nakoda
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Bullion. The defendant has disputed the transaction. Therefore, I am of
the view that an opportunity should be given to the defendant to prove
his defence.
11. It is submission of the defendant that the plaintiff has made
misleading and wrong statement in the plaint and suppressed the
material facts from the Court. According to the plaintiff, the defendant
has not replied to the demand notice. On the contrary, the defendant
has come out with a case that he has replied to the notice. The
defendant along with his reply has filed the copy of reply of notice
which is marked as Exh.1. Thus, it is clear that the defendant has
replied to the notice of the plaintiff dated 14.09.2018. It means the
plaintiff has suppressed the facts from the Court regarding reply filed by
the defendant to the notice of the plaintiff. In other words, the wrong
statement has been made by the plaintiff in the plaint that the
defendant has not replied the notice. On this ground also, the Summons
for Judgment is deserved to be rejected.
12. It is further submitted by the defendant that the plaintiff
has no cause of action to file the present suit. The plaint is liable to be
rejected. It is also submitted by the defendant that the suit is not
maintainable. Thus, the defendant has challenged the maintainability of
the suit and also disputed the transaction, In my view, the defendant
needs to be given an opportunity to prove his defence. Hence, the
plaintiff is not entitled for the Summons for Judgment.
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13. It is the case of the defendant that he has not given
instructions to any person including Dilip Jain to receive the gold bars
on behalf of the defendant. The plaintiff has to show that on behalf of
the defendant, his employee i.e. Dilip Jain has received the gold bars.
The plaintiff has not led any evidence to prove that the gold bars were
received by Mr. Dilip Jain on behalf of the defendant. The opportunity
needs to be given to the defendant to prove his defence. After going
through the present facts and circumstances on record, I am of the view
that the plaintiff is not entitled for Summons for Judgment in this claim.
There are substantial issues which are required to be tried. The suit is
not filed in respect of admitted liability. There are triable issues which
needs to be adjudicated only after conducting fulfledged trial. The
defendant needs to be granted leave to defend and the defendant be
permitted to place on record the true facts regarding the allegations
made in the plaint. In short, the opportunity should be given to the
parties to prove their claim. Therefore, the plaintiff is not entitled for
the Judgment of claim by allowing the Summons for Judgment. The
defendant is entitled for unconditional leave to defend. Hence, I pass
the following order :
ORDER
1) The Summons for Judgment No. 24 of 2019 is
dismissed.
2) Unconditional leave to defend is granted to the
defendant.
3) The defendant is directed to file the Written statement
on or before 07.11.2022.
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4) The cost of this Summons for Judgment shall follow
the event.
5) The proceeding of Summons for judgment No. 24 of
2019 is closed.
Dated : 08.10.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 08.10.2022
Typed on : 11.10.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
15/10/2022 3.00 p.m. Prachi Y. Potdar
Stenographer Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO.31)
Date of Pronouncement of
Judgment/Order.
08/10/2022
Judgment/order signed by P.O on 15/10/2022
Judgment/order uploaded on 15/10/2022
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