Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Summ. for Judg. No.86/2022
In Comm.Suit No.853/2021
MHCC010026892022 Presented on : 07/03/2022
Registered on : 11/03/2022
Decided on : 26/07/2022
Duration : 0Y 04M 15D
IN THE CITY CIVIL COURT AT MUMBAI.
SUMMONS FOR JUDGMENT No.86/2022
IN
COMMERCIAL SUIT NO.853/2021
Mr. Jyotindra D. Sanghavi
Partner of M/s. Shreenath Fab, having
address at 467, Chandra Chowk, 4th Lane,
M.J. Market, Mumbai400 002.
…PLAINTIFF
VERSUS
1. Mr. Vipul Karia
M/s. V. K. Enterprises, having their office
at 51/404, Motilal Nagar No.3, M.G. Road,
Sai Nivas CHS Ltd., Near Bharat Hotel,
Goregaon (West), Mumbai400 104.
2. M/s. V, K. Enterprises having their office at
51/404, Motilal Nagar No.3, M.G. Road,
Sai Nivas CHS Ltd., Near Bharat Hotel,
Goregaon (West), Mumbai. …DEFENDANTS
Smt. Kalpana R. Trivedi, learned Advocate for plaintiff
Shri. A. V. Jain, learned Advocate for defendants.
CORAM : JUDGE SHRI.N.P.TRIBHUWAN (C.R.NO.32)
J U D G M E N T
(Delivered on 26/07/2022)
Plaintiff has filed this application for summons for
judgment under order XXXVII of CPC for claim of Rs.7,40,082/
together with interest of Rs.2,22,025/ calculated @ 18% p.a. for a
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In Comm.Suit No.853/2021
period 29/03/2018 to till filing of the suit.
2] It is case of plaintiff that it is dealing in business of
manufacturing and wholesale of ladies’ dress material. Defendant No.1
is proprietor of defendant No.2. Defendants are carrying on the same
business.
3] Defendants have placed various orders from last several
years for the said goods. As per orders of defendants the plaintiff has
sold, supplied and delivered goods to defendants. Plaintiff raised
invoices/bills of the same. Defendants agreed to pay interest @ 18%p.a.
on delayed payment as per invoice. A sum of Rs.7,40,082/ is
outstanding against the bills/invoices. Defendants have accepted said
bills and did not raise any objection. Defendants also confirmed the
statement of accounts sent by plaintiff.
4] Defendants failed to pay the aforesaid outstanding amount.
Therefore, plaintiff has sent legal notice to defendants and called upon
them to pay the outstanding amount with interest @ of 18% p.a. The
said notice served to defendants on 24/09/2019 but they did not pay
the said outstanding amount. Thus, plaintiff is entitled for decree
against defendant.
5] Defendants have filed reply (Exh.11) to summons for
judgment. Defendants denied that defendant no.1 is proprietor of
defendant no.2. They denied that they placed orders for goods total
amounting Rs.7,40,082/ as alleged. Plaintiff has fabricated the
documents and filed this false case. Defendant No.1 has not received
the goods as alleged. Defendants owe no liability, much less any
admitted liability towards plaintiff. Plaintiff has filed false claim by
misusing the cheque which was issued in good faith.
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In Comm.Suit No.853/2021
6] This dispute ought to have been referred to “Mumbai
Textile Merchants Mahajan, Mumbai” for arbitration as per the
conditions mentioned in bills/invoices. Plaintiff failed to set out a
crystalclear case. The matter involves disputed facts which requires the
scrutiny of trial. In view of above pleading, defendant denied all other
contents of plaint and summons for judgment.
7] In view of above facts following points arise for
determination of this court and I recorded findings thereon for the
reason stated as under.
POINTS FINDINGS
1. Whether defendants are entitled for
leave to defend the suit? ...Yes.
2. What order? ...As per final order.
REASONS
As to point Nos.1 :
8] Heard counsel of plaintiff and defendants. On the point of
summons for judgment Hon’ble Supreme Court in case law of B. L.
Kashyap and Sons Ltd. Vs. M/s. JMS Steels and Power Corporation
and Anr. : Civil Appeal arising out of SLP (C ) No.19413 of 2018,
dtd.18.01.2022 held,
“grant of leave to defend (with or without conditions) under
Order 37 of CPC is the ordinary rule and denial of leave to defend
is an exceptional. Putting in other words, generally, the prayer for
leave to defend is to be denied in such cases where the defendant
has practically no defence and is unable to give out even a
semblance of travel issues before the court.
“Para 17.1 As noticed, if the defendant satisfies the Court that he
has substantial defence, i.e., a defence which is likely to succeed,
he is entitled to unconditional leave to defend. In the second
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In Comm.Suit No.853/2021
eventuality, where the defendant raises triable issues indicting a
fair or bonafide or reasonable defence, albeit not a positively
good defence, he would be ordinarily entitled to unconditional
leave to defend. In the third eventuality, where the defendant
raises triable issues, but it remains doubtful if the defendant is
raising the same in good faith or about genuineness of the issues,
the Trial Court is expected to balance the requirements of
expeditious disposal of commercial causes on one hand and of
not shutting out triable issues by unduly severe orders on the
other. Therefore, the Trial Court may impose conditions both as
to time or mode of trial as well as payment into the Court or
furnishing security. In the fourth eventuality, where the proposed
defence appear to be plausible but improbable, heightened
conditions may be imposed as to the time or mode of trial as also
of payment into the Court or furnishing security or both, which
may extend to the entire principal sum together with just and
requisite interest”.
9] In the present case plaintiff relied on invoices/bills,
statement of account and legal notice. The said documents are disputed
by defendants. I have gone through the invoices filed by plaintiff. It
shows that it does not bear signature of defendant. Moreover, there is
condition mentioned on the invoice about referring dispute for
arbitration. According to defendants the plaintiff has prepared
fabricated documents. It is disputed fact, whether plaintiff has sold,
supplied and delivered goods to defendants. This issue raised by
defendant needs to be determined.
10] In view of the above facts and case laws, I come to the
conclusion that defendants are entitled for leave to defend the suit.
Hence, I answer point no.1 in the affirmative. Hence, I pass following
order.
ORDER
1. Summons for Judgment stands rejected.
2. Leave to defend the suit is granted to the defendants.
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In Comm.Suit No.853/2021
3. Defendants shall file written statement till next date
26/08/2022.
4. A Summons for Judgment No.86 of 2022 is disposed of
accordingly.
Date :26/07/2022.
(N.P. TRIBHUWAN)
Judge, City Civil Court, Mumbai
C.R.No.32
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In Comm.Suit No.853/2021
Dictated on : 26/07/2022.
Checked on : 26/07/2022.
Signed on : 26/07/2022.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
26/07/2022. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 26/07/2022.
Order signed by P.O. on 26/07/2022.
Order uploaded on 26/07/2022.
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