Final Order 1

Order Details: Other
Pdf Text: MHCC010021132020
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
SUMMONS FOR JUDGMENT NO. 36 OF 2020
IN
SUMMARY SUIT NO. 835 OF 2019
Hirachand Mehta
Sole Proprietor of Shom Health Care
Age-30 years, Occupation- Business
Having Registered Office at 2/38,
Diamond Building, R. B. Marg,
Ghodapdev, Mumbai-400 033 ...Plaintiff
Vs.
1. Nexus Diagnostic
Surgical & Pharmaceutical Products
having its office at Unit No.8
Shipin Centre, G. D. Ambedkar Marg,
Wadala (West), Mumbai-400 031
2.Mr. Chintan Jain,
Partner of Nexus Diagnostic
having its office at Unit No.8
Shipin Centre, G. D. Ambedkar Marg,
Wadala (West), Mumbai-400 031 ...Defendants.
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Appearance:-
Adv. Ms.Bhakti Bhosle for the Plaintiff.
Adv. Mr. C.S. Chavan for the Defendants.
CORAM :- HER HONOUR JUDGE
SMT. S. G. SHAIKH
CITY CIVIL COURT,
GR.MUMBAI (C.R.NO.59)
DATE :- 25/03/2021
ORDER
(Dictated and pronounced in Open Court.)
1. The plaintiff has brought this Summons for Judgment and
thereby directing the defendants to pay amount of Rs.2,00,605/- from
the date of the suit till its realization.
2. Perused the documents on record. Heard advocates of the
parties at the length.
3. The defendants appeared on Summons for Judgment and filed
reply/leave to defend within limitation on the principal reason that:-
i) that the defendants have supplied the goods as per the
specifications mentioned in the purchase order dated
16.03.2016.
ii) that the goods have been returned by the plaintiff after one
year i.e. in the year 2017.
iii) that the said goods returned by the plaintiff to the
defendants were damaged.
iv) The provisions of Order 37 of the Civil Procedure Code,
1908 as to Summary Suit are not applicable in the present
suit.
v) The plaintiff has failed to pay the amount towards the said
goods to the defendants.
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4. There is no dispute as to supply of goods as per the
purchase order dated 16.03.2016 by the defendant to the plaintiff.
Undisputedly the goods were returned to the defendant by the plaintiff
after one year i.e. in the year 2017. It is the contention of the plaintiff
that the goods received from the defendants were returned by the
plaintiff without any damaged and breakaged. Wherein, it is the
contention of the defendants that the goods returned by the plaintiff
were in a damaged condition and that too after one year. The Court has
to assessed on the basis of the evidence of the parties whether the said
goods were damaged or not, when returned to the defendant. This
question goes to the roots of the matter and on the basis of which the
Court has to decide the entitlement of the plaintiff to recover the
amount of Rs. 2,00,605/- from the defendants. The damage of the
goods contended by the defendants, leads inference that the defendant
has probable defence.
5. This Court neither intend to comment on the merits of the
case as this is not the stage of appreciation of evidence. But this case
being a case based on contract, it becomes necessary to generally assess
the strength of contract on the basis of documents on the test of basis
laws.
6. In the opinion of this court, whether the plaintiff is entitled
to recovery of amount as claimed is the triable issue in this suit and this
issue can not be brushed aside on the procedure of summary suit.
7. In this background, it is held that defendants have made
out a case to allow them to leave to defend this suit. Defendant has
plausible defence. Therefore, the defendant should be allowed leave to
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defend. However, if the defendant fails to prove the defence, then they
have to pay the amount claimed to the plaintiff. Therefore, defendant is
entitled for unconditional leave to defend. In consequence the
Summons for Judgment is liable to be dismissed. Hence, the following
order is passed.
ORDER
1. Summons for Judgment No.36/2020 is dismissed.
2. Defendants are allowed unconditional leave to defend this suit.
3. Defendants shall file their written statement within four weeks
from today.
4. Costs in cause.
5. Summons for Judgment No.36/2020 is disposed off accordingly.
(S.G. Shaikh)
Date : 25/03/2021 Judge, City Civil Court
Gr. Mumbai
Dictated on : 25/03/2021
Typed on : 25/03/2021
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
26/03/2021 11.30 a.m. ( Mayuresh P Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.59)
Date of Pronouncement of
JUDGMENT/ORDER
25/03/2021
JUDGMENT/ORDER signed by
P.O.on
26/03/2021
JUDGMENT/ORDER uploaded on 26/03/2021
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