Final Order 1

Order Details: Copy of Judgment
Pdf Text: SJ. 22/2018 SUM.SUIT 877/2016 1
IN THE CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT NO.22 OF 2018
IN
SUMMARY SUIT NO. 877 OF 2016
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
( CNR NO.: MHCC01-001918-2018)
Arham Exims Pvt. Ltd.
A company incorporated under the
Companies Act, 1956 having its
Reegistered office at 3 Latif House,
Sant Tukaram road, Carnac Bunder
Masjid(E), Mumbai 400 009. ....Plaintiff
Versus
GPR Power Solutions Pvt.Ltd.
A Company incorporated under the
Companies Act, 1956 having its
Registered office at Plot No.76,
VGN Mahalakshmi Nagar, Extension
V Second Main Road, Thiruverkadu,
Chennai-600 077. ...Defendant
Appearances:-
Advocate Mr.Trivedi for the Plaintiff.
None for Defendant.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 26th February, 2020
J U D G M E N T
1. This is Summary Suit for recovery of amount of Rs.18,64,099/-
(Rupees Eighteen Lakhs Sixty Four Thousand and Ninety Nine Paise
Only) with interest at the rate of 30% p.a. on the amount of
Rs.5,67,000/-
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2. According to the plaintiff, it is a company engaged in the business
of supplying iron and steel pipes. On the basis of purchase order placed
by the defendant on 11/02/2009. The plaintiff sold supplied and
delivered to the defendants the goods as per the purchase order. The
plaintiff raised various invoices from time to time. However, the
defendant failed and neglected to remit payment in respect of 3
invoices as 1) dated 22/03/2009 for Rs.5,49,057/-, 2) dated
23/03/2009 for Rs.4,23,790/-, 3) dated 24/03/2009 for Rs.1,04,647/-
this in total amount of Rs.10,77,494/-. The invoices also contained
condition regarding interest @ 30% p.a. on late payments. The invoices
also contained a clause “SUBJECT TO MUMBAI JURISDICTION”. On
issuance of various reminders by the plaintiff the defendant made part
payment of total Rs.4,65,494/- leaving the balance of Rs.6,12,000/-.
Vide legal notice dated 29/12/2010, the plaintiff claimed the
outstanding amount with interest. The defendant falsely replied vide
letter dated 28/01/2011 contending that the plaintiff delayed supply of
the goods and the goods did not meet the requirements of purchase
order. The plaintiff issued rejoinder dated 09/03/2011. Thereupon the
defendant made further 2 part payments on 30/07/2012 and
07/06/2014 of total amount of Rs.45,000/-. Thus, principal amount of
Rs.5,67,000/- remained to be due and payable by the defendant. The
defendant did not pay the said amount. Calculating the interest @ 30%
p.a., amount due and payable by the defendant at the institution of the
suit worked out to be Rs.18,64,099/-. Therefore, the plaintiff claimed
said amount with interest.
3. On appearance of the defendant the plaintiff taken out summons
for judgment. The defendant contested the summons for judgment by
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filing reply. The defendant contended that the alleged goods were
supplied in the month of March 2009. The suit has been filed on
28/04/2016 and therefore the suit is beyond the limitation. The
defendant denied that he made the part payments on 30/07/2012 and
07/06/2014 of total Rs.45,000/-. According to the defendant the last
payment was made by him on 26/08/2009 of Rs.2,50,000/- vide
cheque bearing No.576870. The defendant contended that the letters
dated 27/09/2012 and 14/06/2014 annexed to the summons for
judgment regarding the acknowledgment are forged and fabricated. The
defendant admitted that he had placed order for supply of the goods for
the sum of Rs.13,70,500/-. According to him the defendant made part
payment of Rs.8,24,619/-. However, the plaintiff failed and neglected to
supply the material within stipulated time for erecting the pipes for the
customers of the defendant at Bellary. Due to delay caused by the
plaintiff to supply the material, the defendant could not make its
commitment within time to its client. Further the plaintiff did not
supply the material as per the order. Some of the material were not
usable for fixing at appropriate places in the factory of the customer of
the defendant, thereby the customers of the defendant refused to accept
the material and refused to make payment of balance amount to the
defendant. Thereby the defendant suffered loss of Rs.25,00,000/-. On
these grounds, the defendant requested to reject the summons for
judgment and grant unconditional leave to defend.
4. Considering material on record and submissions made on behalf
of the parties points arise for determination alongwith my findings
thereon are as under:-
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POINTS FINDINGS
1. Whether the plaintiff is entitled
to Summons for Judgment?
In the Negative
2. Whether the defendant is
entitled to Leave to defend?
If yes, whether conditional/
unconditional?
Unconditional leave to defend.
3. What order? As per final order.
REASONS
AS TO POINTS NO.1 to 3:-
5. Heard Ld. Advocate on behalf of the plaintiff. None appeared on
behalf of the defendant to advance argument. Therefore, the matter
proceeded without arguments on behalf of the defendant. The Ld.
advocate on behalf of the plaintiff argued that the purchase order is
admitted, the delivery of goods is not disputed. The defendant for the
first time in reply raised contention regarding the quality of the goods
and belated supply of the goods, which is after thought. It is argued that
the defendant in specific terms admitted the liability vide
acknowledgments dated 27/09/2012 and 14/06/2014. Thus, the
plaintiff proved the liability of the defendant. Therefore, he requested to
allow the summons for judgment and grant to defend.
6. Admittedly, the purchase order was placed in 2009. The goods
were delivered in 2009, the invoices were raised on 22 to 24 March
2009. The suit has been filed on 06/05/2016. In other words, the suit is
not within 3 years from 24/03/2009 that is last unpaid invoices. The
plaintiff contended that the defendant made part payment on
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30/07/2012 and 07/06/2014 thereby the period of limitation is
extended. The plaintiff relied on the letters dated 27/09/2012 and
14/06/2014 wherein the defendant acknowledged the part payment.
However, this court must note that the defendant has not admitted
these two letters. The defendant came with the contention that these
letters are forged and fabricated. The defendant has specifically denied
any part payment in 2012 and 2014. Clear contention of the defendant
is that last part payment was made on 26/08/2009. Thus, whether the
letters dated 27/09/2012 and 14/06/2014 were issued by the
defendant, Whether the defendant made part payment so as to start
fresh period of limitation, are the questions which can be determined
only after the evidence on behalf of the parties is led. In this
background, the question of limitation in the case in hand is mixed
question of facts and law. Thus, the defendant has raised triable issue
regarding limitation. The defendant also raised the contention
regarding the delayed delivery of goods and quality of goods same are
also the questions of trial. Thus, the defendant has raised triable issues.
In this background, the plaintiff is not entitled to the summons for
judgment and defendant is entitled to the unconditional leave to
defend. Hence, point No.1 is answered in the negative. Point No.2 is
answered as that the defendant is entitled to the unconditional leave to
defend. In answer to point No.3 order as follows is passed.
ORDER
1. The summons for judgment No.22/2018 is rejected.
2. Unconditional leave to defend is granted to the defendant.
3. The defendant shall file his written statement on or before the
13/04/2020.
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4. The Registrar shall cause conversion of the suit to appropriate
category and shall cause assignment of the same to appropriate court by
completing requisite process.
5. The summons for judgment 22/2018 is disposed.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date: 26/02/2020 City Civil Court, Gr. Mumbai
Dictated on : 26/02/2020
Print taken out on: 06/03/2020
Signed on : 06/03/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
09/03/2020 AT 5.10 p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 26/02/2020
Judgment/Order signed by P.O. on 06/03/2020
Judgment/Order uploaded on 09/03/2020
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