Final Order 1

Order Details: Other
Pdf Text: IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
SUMMONS FOR JUDGMENT NO. 44 OF 2019
IN
SUMMARY SUIT NO.742 OF 2017
M/s. Mahaveer Chemical Corporation
Through its Proprietor
Shri Hardik Naresh Doshi
Age: 31 years, Occ: Business.
R/at: 306, Mount View, Yogi Hills
Mulund West, Mumbai- 400 080.
... Plaintiffs
V/s.
1. M/s. Goldman Tapes Private Limited
Having Registered address at:
Gat No. 296, Village Vadavali,
Bhiwandi Wada Road, Taluka Wada
District Thane, thane 421303
2. Mr. Harjout Singh Gulzarsingh Bhullar
Age: 41 years, Occ: Business,
Director of Defendant no.1
R/at: Gulmohar Bunglow, Plot No. 4,
Sector No. 3, Shreenagar, Thane-(W),
Thane- 400 604.
3. Mr. Gulzarsingh Amarsingh Bhullar
Age: 60 years, Occ: Business,
R/at: Gulmohar Bunglow, Plot No. 4,
Sector No. 3, Shreenagar, Thane-(W),
Thane- 400 604.
... Defendants
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Appearance:-
Adv. Mr.-H.M. Inamdar for the Plaintiffs.
Adv. Ms. Vidya Dongare Jain for the Defendants.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 13/12/2021
ORDER
(Dictated and pronounced in Open Court.)
1. The plaintiff has brought this Summons for Judgment thereby
directing the defendants to pay a sum of Rs. 4,16,262/- with interest
@ 18% per annum from the date of filing of the suit till its realization.
2. Perused the documents on record.
3. The defendants appeared on Summons for Judgment and
filed reply/ leave to defend within limitation on the following grounds:-
i) No cause of action arose against the defendants as nothing
is due and payable by defendants to the plaintiff.
ii) The Suit is barred by limitation. The plaintiff is claiming a
sum of Rs.1,01,152/-outstanding towards earlier bills and interest
without producing documentary proof in support of the plaint.
iii) The plaintiff has not supplied total material worth of
Rs.19,97,355/- . The defendants have admittedly made entire payment
of Rs.15,81,093/-. They have supplied total material worth
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Rs.15,81,093/- for which the defendants have admittedly made the
entire payment. The plaintiff have failed to explain in which year and
period the plaintiff have supplied total material worth Rs.19,97,355/- to
the defendants. The claim made by the plaintiff is false.
iv) The plaintiff has received sum of Rs.2,50,000/- on dtd.
13.7.2014 in full and final settlement of the claim. Further, except
account statement no other document is produced to show liability
against the defendants.
v) The suit is based on bogus sales transaction. The defendants
admittedly received the chemicals sold by the plaintiff and has made
payment of Rs.15,81,093/- to the plaintiff. The delivery has been
received under the Delivery Challans. After reconciliation of account the
plaintiffs have agreed to accept a sum of Rs.2,50,000/- as a full and
final settlement against the disputed four invoices amounting to
Rs.5,65,110/-including earlier outstanding claim of Rs.1,01,152/- as
the plaintiffs have received a sum of Rs.4,16,262/- from the defendant
against those invoices. Therefore, no cause of action arose for filing of
the suit.
vi) Suit is based on running account. Hence, summary suit is
not maintainable.
vii) The plaintiff has filed company petition against the defendants and
withdrawn the same. Second, company petition filed by him has been
dismissed and the Hon’ble Bombay High Court has returned the
Demand Draft of Rs.50,000/- given by the defendants. Present summary
suit for said amount is not maintainable.
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4. That the defendants are not liable to pay the alleged
amount to the plaintiff.
5. Lastly, it is submitted that there exists several disputed facts
and triable issues therefore the suit cannot be heard and decided as a
summary suit. Hence, unconditional leave to defend may be granted to
the defendants.
6. The advocate for defendant has argued and pointed out
that summary suit is not maintainable on a running account. The
please regarding running account cannot be determined in summary
proceedings and can only be determined after evidence is laid. Further,
the liability cannot be determined only on the basis of entries in Books
of Account, even where such Books of Account are kept in the regular
course of business. In said circumstances summons for judgment cannot
be made absolute.
7. In order to substantiate his submission, advocate for the
defendant drew my attention towards the authority in the case of M/s.
Dentsply India Pvt. Ltd. V/s. M/s. Excel International and ors, 2001 VAD
Delhi 84. In this authority it has been held that mere entries in the
Books of Account are not sufficient to charge anyone with liability
unless correctness of the entries is admitted. Further, it is held that
summary suit is not tenable on running account. After holding this, it
has been further held that the defendants are entitled to be granted to
leave to defend unconditionally.
8. Further, the advocate for the defendant placed reliance on
the authority in State Bank of Hyderabad V/s. RABO Bank, (2015) 10
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SCC 521. It is held there in, “ where the defendant has raised a triable
issue or reasonable defence, defendant is entitled to unconditional leave
to defend”.
9. Relying upon the aforesaid authority, the advocate for the
defendant prayed for grant of unconditional leave to defend the suit.
10. It transpires from said reply-cum-leave to defend
application that the defendants have raised objections to the tenability
of the suit and denied the suit claim in toto. The questions are whether
any cause of action arose for the filing of the suit, whether the
provisions of Order XXXVII are attracted or not and whether plaintiff is
entitled for recovery or not. The submissions and contentions made by
the defendant leads to the inference that the defendants have probable
defence and the controversy has to be decided on merit.
11. The plaintiff has opposed the submission made by the
defendants on the ground that the plaintiff is claiming principal as well
as interest amount. The defendants have filed this leave to defend after
two years of the orders passed by the Hon’ble Bombay High Court in the
Company Petition. The plaintiff is entitled to get the decreetal amount
alongwith interest @ 18 % p.a. He is not precluded from filing summary
suit for recovery. The summary suit is maintainable as it is based on
invoices and not only on the running account. Therefore, the judgment
for summons may be made absolute and decree be passed in favour of
the plaintiff.
12. Another significant factor which entitles the defendants to
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the grant of leave to defend is the ambiguity regarding Books of
Account and the alleged entitlement of plaintiff to the suit claim after
receiving the verdict of Hon’ble High Court in the company petition.
The plaintiff’s claim may be based on the running account and invoices.
The plaintiff himself made the submission . In such circumstances the
please regarding invoices and running account cannot be determined in
summary proceedings under order XXXVII and same can only be
determined after evidence is laid. For said purpose regular Civil Suit is
justified in which both the parties will get equal opportunity to putforth
their pleadings on record and to prove the same in accordance with the
provisions of Evidence Act. The same cannot be done unless leave to
defend is granted to the defendants.
13. I have gone through the record of the case, the documents
as well as the order passed by the Hon’ble High Court in Company
Petition on dtd. 5.1.2015 and 10.1.2017. It reveals that the company
Petition has been dismissed only on the ground that the respondents i.e
present defendants have agreed to pay the principal amount in full and
final settlement of the claim of the petitioner and the petitioner i.e
present plaintiff had agreed to accept the amount in full and final
settlement. At present juncture I do not find any legal bar prevailing
against the plaintiff in filing suit for recovery. According to the
defendants, the plaintiff has filed this suit only on the basis of running
account. Therefore, the summary suit is not maintainable. Accordingly
to the plaintiff, the suit is based on invoices and running account.
Therefore, suit is maintainable. The aforesaid contentions clearly shows
triable and controversial issues in between the parties.
14. This Court neither intend to comment on the merits of the
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case as this is not the stage of passing order on merit or appreciation of
evidence. But this case being a case based on contract between the
parties, it becomes necessary to assess the merits of case on the strength
of the averments and contentions raised by the parties and the
documents produced in support of said averments and contentions. It
is also necessary to adjudicate the case on the basis of evidence as to
find out as to whether defendants are liable to pay the amount claimed
by the plaintiff or not.
15. Therefore, I am of the opinion that, whether the plaintiff is
entitled to recovery of amount as claimed is the triable issue in this suit
alongwith other material issues and these issues can not be brushed
aside on the count of procedure of summary suit. The authorities cited
supra by the advocate for defendant are squarely applicable to the
present set of facts.
16. In this background, I hold that the that defendants have
successfully made out a case to allow them to leave to defend this suit.
Defendants have plausible defence. Therefore, the defendants should
be allowed leave to defend unconditionally. In consequence, the
Summons for Judgment is liable to be dismissed. Hence, the following
order is passed:
ORDER
1. Summons for Judgment No.44 of 2019 is dismissed.
2. Unconditional leave is granted to defendants to
defend the suit.
3. Defendants are directed to file written statement
within four weeks of passing of this order.
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4. Costs in cause.
5. Summons for Judgment No.44/2019 is disposed off
accordingly.
Date: 13.12.2021.
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Dictated on : 13.12.2021
Typed on : 13.12.2021
Signed on : 14.12.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
14.12.2021 05.40 p.m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ A.H.KASHIKAR (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
13.12.2021.
JUDGMENT/ORDER signed by
P.O.on
14.12.2021.
JUDGMENT/ORDER uploaded on 14.12.2021.
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