Final Order 1

Order Details: Other
Pdf Text: MHCC010018022020 Presented on 11-02-2020
Registered on 11-02-2020
Decided on 27-09-2023
Duration 03Y: 07M: 16D
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMONS FOR JUDGMENT NO. 25 OF 2020
IN
SUMMARY SUIT NO. 769 OF 2012
Jeevandeep Edumedia Pvt. Ltd. ]
Having registered office at ]
Sun Paradise Business Plaza, ]
First Floor, Senapati Bapat Marg, ]
Lower Parel, Mumbai 400 013. ]
Through its Assistant Manager Legal ]
Mrs. Neha Nachiket Kulkarni ]
Age: 28 years, Occupation: Service ]...Plaintiff
V/s.
1. Mr. Ahad Shaikh (Manager) ]
Age: Not known, Occ: Not known ]
Jivan Jyot English Medium School ]
Bombay Nursing Home Building, ]
Behind Forest Office, Aurangabad Road, ]
Behind Irrigation office, ]
Ahmednagar -414 003, Maharashtra ]
2. Jivan Jyot English Medium School ]
(Jivan Jyot Medical Foundation's) ]
Age: Not Applicable, Occ: Not Applicable ]
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Bombay Nursing Home Building, ]
Behind Forest Office, Aurangabad Road, ]
Behind Irrigation office, ]
Ahmednagar -414 003, Maharashtra ]...Defendants
Appearance :
Ld. Adv. Hetal Vakil for the plaintiff.
Ld. Adv. Heramb Pawar for the defendants.
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 27/09/2023.
Order on summons for judgment
(Passed on 27.09.2023)
This suit is filed for recovery of the amount of Rs.34,717/-. On the
appearance of defendants No.1 and 2, the plaintiff applied for leave to
sign the judgment against the defendants as if both defendants are
one and the same and referred to everywhere as 'the defendant'.
Defendant No.2 has filed its reply to summons for judgment and
sought leave to defend the suit. Brief facts of the plaintiff’s case may
be narrated in order to decide to leave to sign the judgment.
1.
2] The plaintiff is the registered company incorporated
under the Companies Act, 1956. The plaintiff carries on the business
as Educational Publishers under the name and style of ‘Jeevandeep
Edumedia Private Limited’ and it was previously known as ‘Jeevandeep
Prakashan Private Limited’.
3] In pursuance of the orders placed from time to time by
the defendant, the plaintiff has sold, supplied and delivered to the
defendant the goods through delivery challenge and it was
acknowledged by the defendant without any protest for the quality
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and quantity.
4] According to the plaintiff, it had raised the invoices on the
defendant in respect of the goods delivered to the defendant, and
those are following 4 invoices.
1) Invoice No. PT 65082 dated 30/06/2016 for the amount
of Rs.17,637/-,
2) Invoice No. PT 68713 dated 20/07/2016 for the amount
of Rs.390/-.
3) Invoice No. PT 69547 dated 28/07/2016 for the amount
of Rs.1,939/-, and
4) Invoice No. PT 70002, dated 04/08/2016 for the amount
of Rs.825/-.
5] According to the plaintiff, it has supplied the goods for the
total amount of Rs.20,291/-; however, because of returning the some
books, credit note of Rs.3,011/- was given and therefore, due and
payable amount was Rs.17,780/-. It is contended by the plaintiff that
despite of several request, the defendant failed to make the payment
and therefore, lastly legal notice dated 05/03/2019 through the
advocate was issued and served it on 14/03/2019 on the defendant.
Despite the receipt of the said legal notice, the defendant has not
complied with the said notice and even not replied and therefore, the
plaintiff constrained to file the present suit.
6] According to the plaintiff, as per the terms and conditions
as agreed, in view of the failure to pay the amount, the defendant is
liable to pay the interest at the rate of Rs.18% per annum and
therefore, the plaintiff has claimed the interest Rs.16,937/- on the said
amount and prayed for the decree for the amount of Rs.34,717/-.
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7] While contesting the summons for judgment and seeking
leave to defend the suit, it is contended by the learned counsel for the
defendant No.2 that the defendant No.2 had not placed any order for
the books with the plaintiff and no book was received by defendant
No.2. On the background of the defence raised by defendant No.2, it
is necessary to see whether the plaintiff is entitled to leave to sign the
judgment. Though it is pleaded by the plaintiff that the defendant has
placed the purchase orders time to time;, the plaintiff has not placed
any document suggesting that in fact, any of defendants has placed
any purchase order. Though it is pleaded by the plaintiff that the
goods have been supplied and delivered to the defendant, the plaintiff
has not placed on record any document suggesting that the goods are,
in fact, delivered to any of the defendants. Mere filing the copies of
the invoices is not sufficient to infer that the defendants or any of the
defendants had placed the orders and the plaintiff has delivered the
goods to the defendant. Furthermore, the plaintiff has placed nothing
on record to suggest that the defendants or any of them had accepted
the liability of the payment of any amount. Therefore, in view of the
aforesaid situation, I’m of the view that defendant No.2 has raised the
substantial defence and a triable issue and as such, defendant No.2 is
entitled to unconditional leave to defend the suit. Defendant No.1 is
claimed to be the manager of defendant No.2 and the plaintiff has not
claimed any relief against defendant No.1. In the result, I proceed to
pass the following order.
O R D E R
1] Summons for judgment is dismissed.
2] Unconditional leave to defend the suit is granted to defendant
No.2. The defendants shall file their written statements within a
month from the date of this order.
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3] In view of granting the leave to defend the suit, summons for
judgment No.25/2020 stands disposed of as dismissed.
(K. P. Shrikhande)
Date: 27/09/2023 Judge, City Civil Court Gr. Mumbai.
Mumbai Court Room No.61
Dictated on: 27-09-2023
Corrected & signed on:29 -09-2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
30-09-2023 at 3.00 p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri K. P. Shrikhande
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
27-09-2023
JUDGMENT/ORDER signed by P. O. on 29-09-2023
JUDGMENT/ORDER uploaded on 30-09-2023
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