Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judg. In Comm. Suit 4222020
MHCC010012182020 Presented on : 29/01/2020
Registered on : 09/03/2020
Decided on : 08/05/2024
Duration : 04Y/01M/29D
Exh.36.
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI.
(Court Room No.32)
COMMERCIAL SUIT No.422 OF 2020
M/s. Pawan Chemicals,
a Partnership firm, duly registered under
the Indian Partnership Act, through its
Partner Mr. Deepak Vijay Kedia, having
its office at 215, Samuel Street, Deepak
House, Mumbai400 003. …PLAINTIFF
VERSUS
Mr. Rushabh Dhanesh Mehta, Sole
Proprietor of M/s. Rushabh Rasayan,
B/B 202, Saurabh Apartment, Jain
Mandir Road, Sarvodaya Nagar,
Mulund(W), Mumbai400 080.
AND
Flat No.302, Sadguru Solitaire Building
Above Hyundai & Maruti Suzuki
Showroom Kasar Vadavali, Godbunder
Road, Thane400 615.
…DEFENDANT
Shri.Girish Kedia, learned advocate for plaintiff.
Smt. Sana Shaikh, learned advocate for defendant
CORAM : H. H. JUDGE SHRI. VISHAL SADASHIVRAO GAIKE,
(COURT ROOM No.32)
J U D G M E N T
(Delivered on 08/05/2024)
1. This is a suit for recovery of sum of Rs.32,59,266/
together with further interest @ 21 % p.a. on principal sum of
Rs.30,96,690/ from the date of suit till realization of the entire
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amount.
2. The case of plaintiff, in brief, is that, it is a Partnership
firm duly registered under the Indian Partnership Act, 1932 and
carrying on business of dealing in various kinds of chemicals and
chemicals solvent etc. whereas the defendant M/s. Rushabh
Rasayan is a sole Proprietorship and also dealing in chemicals and
chemicals solvents.
3. That, on 11.4.2019 and 22.4.2019 defendant has
placed three purchase orders with the plaintiff for supply of the
material set out therein. In response to the said purchase orders
placed by the defendant, plaintiff sold and delivered the chemical
materials under the three invoices to the defendants respectively in
the month of April 2019 and the details thereof are as under.
Invoice No. Invoice Date Invoice Amount
(Rs.)
68 11.04.2019 23,29,320/
122 22.04.2019 4,48,075/
124 22.04.2019 18,19,295/
Total 45,96,690/
Defendant has received the said invoices alongwith eway bills
without raising any dispute in respect of the price, quality and
quantity of the materials sold by the plaintiff.
4. That, under the terms of the supply, the payment was
to be made within 60 days failing which the defendant is bound
and liable to pay the interest @ 21 % p.a. against receipt of the
said materials. The defendant has made part payment of
Rs.15,00,000/ leaving behind an outstanding amount of
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Rs.30,96,690/ alongwith interest @ 21% p.a. for the delayed
period. Defendants have issued 6 cheques aggregating to a sum of
Rs.25,96,690/ and the details of the cheques are as under :
Cheque No. Date Amount (Rs.)
378161 01.07.2019 3,29,320/
362148 03.07.2019 4,48,078/
362147 05.07.2019 4,69,295/
362146 07.07.2019 4,50,000/
362145 09.07.2019 4,50,000/
362144 11.07.2019 4,50,000/
The defendant had issued the aforesaid cheques with an assurance
that the same will be honoured on due dates and when presented
for encashment to the Bank, but, all of them were dishonoured
with the remark “funds insufficient”.
5. That, plaintiff through their advocate issued a notice
dated 03.09.2019 called upon the defendant to make the payment
of the outstanding amount including the amount of total
outstanding payment of Rs.30,96,690/ alongwith interest thereon,
but, the notice when forwarded by post was returned back with the
remark 'left'. Therefore, plaintiff's representative therefore,
personally visited to the defendant's office and delivered the said
notice. However, defendant refused to accept and acknowledge the
same. Under the circumstances, the plaintiff submits that a sum of
Rs.32,59,266/ inclusive of interest of Rs.1,62,576/ on the
principal amount of Rs.30,96,690/ calculated @ 21% p.a. is due
and payable by the defendant.
6. That, the present suit is filed against the defendant on
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the basis of purchase orders r/w. Invoices and the delivery challan
and also the cheques issued by the defendant in discharge of his
liability. The said cheques were dishonoured on presentation and
they constitute a written contract and also a Negotiable
Instruments.
7. That, the defendant in the similar fashion has
defrauded and cheated various suppliers in the market to the tune
of more than Rs.12 crores and more and there are criminal
complaints filed by the suppliers against the defendants and the
same are pending for investigation.
8. That, the goods were sold and delivered to the
defendant as per the written instructions received at Mulund(W),
Mumbai and the same was supplied as per the transporters
arranged by the defendant in Mumbai. The defendant is having its
address at Mumbai and have issued the cheques which are
dishonoured at Mumbai. The plaintiff is carrying on his business at
Mumbai therefore this Court has jurisdiction to try and entertain
the present suit.
9. That, the claim of the plaintiff is not barred by the law
of limitation as the goods supplied in the month of April 2019 and
the defendant has issued cheques in discharge of the liability which
were dishonoured in July 2019 on presentation therefore, the
claim is within time. That, the cause of action arose in the month
of April 2019 and subsequently by July 2019. Thus, the suit.
10. That, the plaintiff had filed Summary Judgment No.7
of 2022 which was disposed off on 07.09.2022 and leave was
granted to the defendant to defend the suit on the condition that
he shall deposit principal sum of Rs.30,96,690/ within 30 days
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from the date of said order. It was further directed that if the said
amount was not deposited then the defence of the defendant i.e.
his Written Statement Exh.10 will be striked out. The defendant
did not comply the said condition within the stipulated period and
applied for extension of time to comply the said order. Time was
extended firstly till 14.10.2022 and then as a last chance till
14.11.2022 but, as the defendant failed to comply the said order
within the extended period therefore, no written statement order
was passed on 14.11.2022.
11. Thereafter, the defendant filed Notice of Motion
No.420 of 2023 for setting aside the “No Written Statement” order
dated 14.11.2022 but, the said notice of motion was rejected on
02.05.2023 and the suit has proceeded without written statement.
12. The plaintiff examined PW1 Deepak Vijay Kedia and
filed his evidence affidavit at Exh.7 alongwith list Exh.8. Heard the
final arguments of the learned advocate for the plaintiff and
defendant.
13. In view of the above discussion, following points arise
for determination of this court and recorded findings thereon for
the reasons stated as under.
Sr.
No
POINTS FINDINGS
1 Whether the plaintiff proves that he is
entitled for decree of Rs.32,59,266/
inclusive of interest of Rs.1,62,576/ on
the principal amount of Rs.30,96,690/
calculated @ 21 % p.a. from the date of
suit till realisation of the entire decreed
amount ?
...In the
Affirmative.
2 What order? ...As per final
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order.
REASONS
AS TO POINT No.1 TO 2 :
14. Both the parties have filed their respective Written Notes
of Arguments. The PW1 Mr. Deepak Vijay Kedia has repeated and
reiterated in his evidence affidavits, the contents of the plaint. He has
relied upon the following documents : Exh.20 purchase order dated
11.04.2019, Exh.21 purchase order dated 22.04.2019, Exh.22(colly.)
invoices dated 11.04.2019 a/w. eWay bill dated 11.04.2019 a/w.
two delivery challans dated 11.04.2019, Exh.23(colly.) Invoices
dated 22.04.2019 a/w. eWay bill dated 22.04.2019, Exh.24(colly.)
invoice dated.22.04.2019 a/w. EWay bill dated 22.04.2019 a/w. two
delivery challans dated 22.04.2019, Exh.25 Ledger account of the
defendant dated 01.04.2019 to 31.03.2020, Exh.26(colly.)
dishonored cheque dated 01.07.2019 alongwith bank dishonor
memo, Exh.27(colly.) dishnonored cheque dated 03.07.2019 a/w.
Dishonor memo, Exh.28(colly.) dishonored cheque dated 05.07.2019
alongwith bank dishonor memo, Exh.29(colly.) dishonored cheque
dated 07.07.2019 alongwith bank dishonor memo, Exh.30(colly.)
dishonored cheque dated 09.07.2019 alongwith bank dishonor
memo, Exh.31(colly.) Dishonored cheque dated 11.07.2019
alongwith bank dishonor memo, Exh.32(colly.) notice dated
03.09.2019 a/w. RPAD receipt and returned postal envelope.
15. That, as the suit has proceeded without written
statement, therefore, the learned advocate of defendant cross
examined the PW1 only on law points. She suggested the PW1 that
the Writ of Summons was not served on the defendant as he was
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behind the bars but, the PW1 denied the said suggestion. He
deposed that, he does not know whether he has mentioned in his
plaint the registration number and date of his partnership firm but,
thereafter stated that the said details are not mentioned in his plaint.
16. The learned advocate of plaintiff argued that, the claim
of plaintiff is based on not only the unpaid invoices but also on the
dishonoured cheques which the defendant had issued in plaintiff's
favour for discharging its legally enforceable debt. That, the purchase
orders Exh.20 and 21 alongwith invoices Exh.22 to 24(colly.), ledger
account statement at Exh.25 and dishonored cheques Exh.26 to
31(colly.) and legal notice alongwith postal endorsement at
Exh.32(colly.) proves that, the plaintiff had supplied the goods as per
the purchase orders placed by the defendant and the defendant had
failed to pay the said invoices and honoured the cheques issued by
him to discharge his liability towards the plaintiff. That, as the claim
of plaintiff is also based on the dishonored cheuqes issued by the
defendant hence, the suit is not barred by Section 69 of the Indian
Partnership Act, for non registration of the plaintiff firm. Therefore,
the suit of plaintiff be decreed as prayed for.
17. The learned advocate of plaintiff relied on the following
case laws :
i) Afsal Baker Vs. Maya Printers,(Kerala): Law Finder Doc
Id # 828082;
ii) M/s. Haldiram Bhujiawala and Anr. Vs. M/s. Anand
Kumar Deepak Kumar (SC) : Law Finder Doc Id # 36768.
18. On the other hand the learned advocate of defendant
vehemently argued that, the suit by an unregistered partnership firm
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for recovery of money from third party is barred by virtue of Section
69(2) of the Indian Partnership Act, 1932 (hereinafter referred to as
'the said provision'). She argued that, the plaintiff has failed to prove
that its firm is a registered partnership firm therefore, in view of bar
contained in the said provision, the suit cannot be decreed. Hence, it
be dismissed with costs.
19. The learned advocate of defendant relied on the
following case laws :
i) M/s. Seeyan Associates Vs. M/s. B.M.F. Beltings
Ltd. Chennai and M/s. Fenner India Ltd. Chennai,
Law Finder Doc Id # 841004;
ii) M/s. Kavita Trehan and Ors. Vs. M/s. Balsara
Hygiene Products Ltd., 1992 AIR (Delhi) 92;
iii) Gandhi and Co. Appellant Vs. Krishna Glass
Pvt. Ltd., Law Finder Doc Id # 160616;
iv) Dwijendra Nath Singh and Anr. Vs.
Govindahandra and Anr., AIR 1953 Calcutta 497;
v) Laljibhai Ramjibhai Hamirani Vs. Lavjibhai
Haribhai Mandanka (Gujarat) Law Finders Doc Id#
338601;
vi) Mohd. Mofazzular Rahman Vs. Mohd. Sarfaraz
Alam, (Calcutta) Law Finders Doc Id 184 008.
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20. In the matter of M/s. Haldiram (Supra), the Hon'ble
Supreme Court of India held that, the suit by unregistered
partnership firm is not barred by Section 69(2) of the Indian
Partnership Act, 1932 if, a statutory right or a common law rights is
being enforced. The said judgment was discussed by Hon'ble Kerala
High Court in the matter of Afsal Baker (Supra), and it was held that
the suit by an unregistered partnership firm is maintainable for
recovery of the amount of cheques which were issued by the
defendant for discharge of his legally enforceable liabilities. It was
held that, the liability against the defendant is created under the
Negotiable Instruments Act, 1881 therefore, in view of Section 30
and 37 of the Negotiable Instruments Act, the suit for recovery of
money by an unregistered partnership firm is maintainable.
21. That, the claim of plaintiff in the present suit is also
based on the six invoices issued by the defendant to discharge his
liability of payment for the goods supplied and delivered by the
plaintiff to him. The right of plaintiff under the Negotiable
Instrument Act for recovery of the cheque amount is a statutory right
therefore, in view of the ratio laid down by the Hon'ble Supreme
Court of India in the matter of M/s. Haldiram (Supra) and in view of
the ratio laid down by the Hon'ble Kerala High Court in the matter of
Afsal Baker (Supra), the present suit is not barred under Section
69(2) of the Indian partnership Act, 1932. In my humble opinion, the
ratio of judgments relied upon by the learned advocate of defendant
is not applicable in the facts of the present case due to the ratio of the
Judgment of Hon'ble Supreme Court of India in the matter of M/s.
Haldiram(Supra).
22. The evidence of plaintiff is uncontroverted in absence of
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pleadings of the defendant. Nothing untrustworthy or contradictory
has come on record in the evidence of PW1 therefore, i n view of the
above discussion and evidence, I hold that plaintiff has proved that it
is entitled for decree of Rs.32,59,266/ (Principal amount of
Rs.30,96,690/ + interest of Rs.1,62,576/ from the due date)
alongwith interest @ 21% from the date of suit till realisation of the
entire decreed amount. Consequently, I answer point No.1 in the
affirmative and proceed to pass the following order.
ORDER
1. Commercial Suit No.422 of 2020 is hereby decreed with
costs.
2. The defendant is directed to pay to the plaintiff an
amount of Rs.32,59,266/[Rupees Thirty Two Lakhs Fifty
Nine Thousand Two Hundred and Sixty Six only] which
includes balance principal amount of Rs.30,96,690/ and
interest of Rs.1,62,576/ @ 21% p.a. from the due date.
3. The defendant shall also pay further interest @ 21% p.a.
on the principal amount of Rs.30,96,690/(Rupees Thirty
Lakhs Ninety Six Thousand Six Hundred Ninety only)
from the date of suit till payment or realisation of the
entire amount.
4. Decree be drawn up accordingly.
Date :08/05/2024.
Directly typed on Computer on : 08/05/2024 (VISHAL SADASHIVRAO GAIKE )
Printed on : 24/05/2024 JUDGE, CR NO.32
Signed on : 24/05/2024 CITY CIVIL COURT AT MAZGAON,
MUMBAI.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
24.05.2024 at 4.30 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. VISHAL
SADASHIVRAO GAIKE,
(C.R.No.32)
Date of pronouncement of Order 08.05.2024
Order signed by P.O. on 24.05.2024
Order uploaded on 24.05.2024
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