Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Presented on : 24.01.2019
Registered on : 24.01.2019
Decided on : 08.10.2021
Duration : 02 Y, 08 M, 12 D
EXHIBIT2
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.36 OF 2019
(CNR NO.MHCC010009302019)
IN
SUMMARY SUIT NO. 490 OF 2018
M/S. YARN TECH. ]
A Partnership Firm carrying its ]
Business in yarn at Shop No.45, ]
Ground Floor, Nagdevi Street, ]
Mumbai – 400 003 ]
Through its partner Viral Dinesh ]
Vora, An Adult, ages 35 years. ].. Plaintiff.
V/s.
GAJANAN R. HARAD, an adult, ]
carrying on his business in the name ]
and style of M/s. Golden Thread as ]
a sole proprietor at Gala No.1670, ]
Sonale Village, Near Gram Panchayat]
Office Z.P. School, Bhiwandi. ]..Defendant.
Advocate Ms. Bandana Chaurasiya for the plaintiff.
Advocate Mr. Deepak Jamsandekar the Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 8th OCTOBER, 2021
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JUDGMENT
The is taken up in a suit instituted for the recovery of
amount of Rs. 19,16,066/ along with interest on the amount of
Rs. 18,09,763/ along with interest at the rate of 21% per annum from
the date 01/07/2017 till realization of total decreetal amount.
2. It is the case of plaintiff that it is engaged in the business of
supply of yarn and had supplied the yarn to defendant from time to
time as per the purchase orders placed by him. The goods were
delivered to defendant by Metro Roadlines at the Bhiwandi. Defendant
accepted the delivery of the goods and acknowledged the same. The
defendant agreed to pay interest at the rate of 21% per annum in case
the payment is made after 30 days from the date of invoice. Defendant
is liable to pay the amount of Rs. 19,16,066/ including the interest till
30/06/2017 at the rate of 21% per annum as per the ledger account
maintained by plaintiff. It is the case of plaintiff that the defendant
admitted the amount of Rs. 18,09,763/ inclusive of interest till
28/02/2017 as per the confirmation of account dated 01/04/2017.
Defendant has signed and stamped the said confirmation of accounts
dated 01/04/2017.
3. It is the case of plaintiff that defendant failed and neglected
to pay the amount due to plaintiff. Therefore, defendant is liable to pay
interest at the rate of 21% per annum. Plaintiff issued a legal notice to
defendant on 20/07/2017 calling him to pay the amount and interest
thereon. Defendant received a notice on or about 24/07/2017.
Defendant failed to pay the amount after receipt of the notice. Hence
the plaintiff was constrained to institute the present suit for recovery of
the amount.
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4. The defendant was duly served with the writ of summons.
He appeared before the court. Thereafter, plaintiff took out summons
for judgement. Defendant responded the same and has filed his leave
to defend.
5. It is the case of defendant that he is engaged in the
business of manufacturing yarn and his factory is located at Bhiwandi.
He has stated that the person who has presented plaint is not
authorised for presentation. There is no resolution of the plaintiff
company that it has authorised him to present the plaint on its behalf.
Therefore the suit deserves to be dismissed. Defendant has stated that
he is not liable to pay anything to the plaintiff.
6. It is the case of defendant that his manufacturing activities
are shifted to different location and the suit summons was received by
the defendant at residential address. Defendant purchases the polished
grey yarn from various vendors including plaintiff. Plaintiff is supplying
raw material to the defendant since the year 2011 that is polyester grey
yarn.
7. Defendant had stated that plaintiff supplied him the
material as stated below: –
SR.
No.
INVOICE
NO.
DATED QTY INVOICE
VALUE
1 396 25.06.2015 1,08,406
2 412 29.06.2015 1,89,255
3 421 01.07.2015 45,024
4 422 02.07.2015 2,01,584
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5 432 03.07.2015 24,032
6 472 10.07.2015 85,188
7 473 10.07.2015 34,928
8 475 11.07.2015 62,583
9 496 15.07.2015 59,970
10 515 20.07.2015 59,723
11 520 22.07.2015 57,601
12 535 23.07.2015 49,299
13 546 27.07.2015 1,15,202
14 592 07.08.2015 51,540
15 595 08.08.2015 34,237
16 616 12.08.2015 19,620
17 662 19.08.2015 22,177
18 310 22.08.2015 INTEREST
CHARGED
13,337
19 888 23.09.2015 34,372
20 924 30.09.2015 38,700
5 1025 20/10/2015 24,357/
TOTAL
13,31,135/
8. Defendant further stated that when he supplied the
processed goods to various customers. They communicated defendant
that the goods supplied by him were not up to standard and the quality
as required. Defendant informed the same to plaintiff. Plaintiff asked
defendant to return the goods as they are. Accordingly, the goods were
returned to the plaintiff in the form of finished products as well as
residue raw material. The defendant has given the details of the
invoices by which the material was returned to the plaintiff.
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SR.
NO.
CHALLAN
NO./
INVOICE
NO.
DATED DESCRIPTION OF
THE GOODS
QTY. AMOUNT
1. 1597/207 13.07.2016 2/42 GREY YARN 480 79,200
2. 1601/207 13.07.2016 2/50 OPWHITE YARN 120 25,200
TOTAL 600 1,04,400
INVOICE.204 DATED 13.07.2016 900 1,48,500
TOTAL 2,52,900
9. It is the case of defendant that his shop at Gala No. 1211/1
was gutted by the fire and the entire finished goods, office material and
the documents and invoices were destroyed due to the fire. Defendant
filed a police complaint regarding the same. Defendant has further
stated that as the raw material supplied by the plaintiff was defective
and could not meet the quality and the specification as desired by the
defendant, defendant suffered substantial loss. The Challans by which
the defendant received back the processed goods due to lack of quality
were destroyed in the fire. Defendant has mentioned names of certain
vendors who returned the goods to him. As per the case of defendant
he sustained loss of Rs.4,68,253/–. Defendant had stated that he has
good defence in the present suit. Therefore, he has prayed for allowing
him to contest the suit.
10. Considering the pleadings, documents on record and
submissions of both learned advocates, following points arise for my
determination and my findings to them are as stated below for the
following reasons.
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Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff is entitled to the
Summons for Judgment as prayed for?
In the
Negative
2 Whether the defendants are entitled to the
leave to defend the suit?
Partly In the
Affirmative
3 What Order ? As per final order
R E A S O N S
AS TO POINT NOS.1 TO 3:
11. As all 3 points are related to each other, they are discussed
at once.
12. It is admitted position that plaintiff and defendant were
having business relations since long. Plaintiff was supplying material to
defendant and defendant was paying for the same. Plaintiff has stated
that for the invoices specifically mentioned in the plaint, the defendant
failed to pay. As against the same the defendant had stated that the
quality of the material which was supplied by plaintiff to him was not
up to the standards and as per the requirements of the defendant. The
defendant processed the unfinished product and supplied the finished
product to his vendors but the said product came to be returned to the
plaintiff because of lack of quality as desired. It is the case of defendant
that the delivery Challans of the returned goods were destroyed in the
fire which took place in his office on 03/06/2017. Defendant has
produced on record a police complaint confirming that there was fire in
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his shop. The certificate issued by Bhiwandi Municipal Corporation is
also produced by defendant on record.
13. So far as the documents of plaintiff are concerned, plaintiff
has produced on record a notice issued to defendant on 20/07/2017. It
appears that the notice was issued by the defendant but he failed to
reply the same. It is the case of plaintiff that the defendant has
acknowledged that he is liable to pay the amount of Rs. 18,09,763/.
The confirmation of account for the period 01/04/2015 to 28/02/2017
is produced on record. It is dated 01/04/2017. It bears the signature
of defendant along with Stamp. In the light of this circumstance, it
appears that the principal amount of Rs. 18,09,763/ was admitted by
the defendant as due to plaintiff from him.
14. It is important to note that the defendant has, for the first
time came with the defence in his leave to defend that there was defect
in the raw material supplied by plaintiff to him and therefore he
sustained loss. His finished products were returned by the vendors. It
is also important to note that the cost of returned product is not shown
in the confirmation of accounts dated 01/04/2017. It is also important
to note that there is no mention of interest in the confirmation of
account at all.
15. In the circumstances above it appears that the defendant
has admitted the claim of plaintiff to the extent of 18,09,763/. It
appears from the police complaint and the certificate issued by the
municipal Corporation that the office of the defendant was gutted in the
fire on 03/06/2017. Therefore, there is possibility that the defendant
might have lost his documents showing the alleged return of product by
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his vendors. In the circumstances, in my considered opinion the
defendant must get an opportunity to contest of the suit and lead his
evidence to show that the material supplied by the plaintiff was not up
to the quality required and desired by the defendant. However at the
same time to protect the interests of plaintiff, it is necessary to direct
the defendant to deposit in the court the agreed amount of
Rs. 18,09,763/.
16. In view of the above, I have come to the conclusion that the
defendant has come up with a probable defence which leads to a triable
issue. As per the settled position of law when there is a triable issue
and defendant has made out a probable defence, he must get an
opportunity to contest the suit. At the same time conditions can be
imposed upon the defendant while granting the leave to defend.
Therefore, I answer point No. 1 in the negative. I answer point No. 2
partly in the affirmative and in answer to point No. 3, I proceed to pass
following order.
O R D E R
1. Summons for Judgment is dismissed.
2. Leave to defend is granted to defendant subject
to depositing the amount of Rs.18,09,763/ in the
court within 60 days from the date of this order.
3. If defendant deposits the amount is
Rs.18,09,763/ in the Court within the given period,
then the registrar is directed to invest the said
amount in fixed deposit in any nationalised bank for
the period of one year and the said period may be
extended by one year from time to time till further
orders of the Court.
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4. Cost will follow main cause.
5. The Summons for Judgment No.36 of 2019 is
disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 08.10.2021 Gr.Mumbai.
Dictated on: 08.10.2021
Typed on : 12.10.2021
Signed on : 20.10.2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
21.10.2021 AT 10.30 A.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
08/10/2021
Judgment/Order signed by P.O. on 20/10/2021
Judgment/Order uploaded on 21/10/2021
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