Final Order 1

Order Details: Other
Pdf Text: :1: S.J. No.64/2019 in Suit No.6611/2005
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT NO. 64 OF 2019
CNR NO.: MHCC010021982019
(HIGH COURT SUMMONS FOR JUDGMENT NO.500 OF 2005)
IN
SUIT NO. 6611 OF 2005
(HIGH COURT SUMMARY SUIT NO.1864 OF 2005)
Dinesh Nandlal Shah ...Plaintiff
V/s.
M/s. Super Forgings & Steels Ltd., ...Defendant
Appearances:
Advocate Mr. Shah for the plaintiff.
None for the defendant.
CORAM : HER HONOUR ADHOC JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 27th SEPTEMBER, 2019.
O R A L O R D E R
Story of plaintiff in short is as under :
1. Plaintiff has stated that he is a Sole Proprietor of M/s. Jayesh
Trading Co. having office at 605/609, Krushal Commercial Complex,
Shoppers Stop, G.M. Road, Amar Mahal, Chembur (West), Mumbai 400
089 (hereinafter referred to as “the said Firm”) and the said firm is
carrying on business of Low Carbon Ferro Chrome, etc. The defendant is
a company incorporated under provisions of Indian Companies Act
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1956 and having its registered office and Mumbai office at the address
mentioned in the cause title and carrying on business of Ferro alloys,
metal, minerals and chemicals etc.
2. Plaintiff has further stated that pursuant to the Orders placed by
defendant from time to time, he supplied Low Carbon Ferro Chrome to
the defendant. Plaintiff has further stated that in respect of the said
supplies by him, he sent their bills for the goods sold and delivered to
the defendant each of which set out the quality and quantity of the
goods supplied as also the rate at which it was supplied. The bills
described the agreed terms and conditions regarding the default in
payment clause i.e. interest at the rate of 24% p.a. will be charged in
case payment is delayed more than 30 days. The defendant accepted
the said goods and the said bills without rising any objections
whatsoever. It was agreed that defendant shall pay the said Bill amount
within 30 days from the bill date. Plaintiff has further stated that as on
date the following bills are due and payable by the defendant.
Bill No. Date Amount
a. JTC/397 5.03.2001 Rs. 93,638.00
b. JTC/398 5.03.2001 Rs.5,72,623.00
c. JTC/15 24.04.2001 Rs.7,26,704.00
Rs.13,92,965.00
3. Plaintiff has further stated that the defendant and the plaintiff
have exchanged huge correspondence and whereby from time to time
plaintiff requested and reminded to clear the aforesaid outstanding
Bills. Plaintiff has further stated that the defendant made part payment
from time to time of Rs.6,36,261/ keeping the balance cum of
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Rs.7,56,704/ due and payable to the plaintiff. Plaintiff has further
stated that against the said outstanding amount defendant issued two
cheques bearing Nos.760020 and 760021 both dated 12th June, 2003
for Rs.7,00,000/ and another of Rs.56,704/ both drawn on Canara
Bank, N.S. Road, Calcutta Branch respectively.
4. Plaintiff has further stated that he at the request of the defendant
presented both the said cheques on 1st July 2003 in his Bank. The said
cheques, however dishonoured and returned by defendants banker.
Plaintiff has further stated that he by his letter dated 15th July, 2003
informed to the defendant that the said cheques have been dishonoured
and requested defendant to send Demand Draft for the said cheque
amount.
5. Plaintiff has further stated that the defendant requested to him to
Redeposit the said two cheques on 29.08.2003 and assured to him that
on presentation the said two cheques shall be honoured. Accordingly he
deposited the said two cheques on 29.08.2003 with his Bank, however
again the said two cheques were dishonoured and returned to him on
30.08.2003 with remark “Exceeds Arrangements”.
6. Plaintiff has further stated that therefore he vide his Advocate's
Notice dated 13th September, 2003 sent Notice under Section 138 of
Negotiable Instruments Act, to the defendant and called upon the
defendants to pay to the said dishonoured cheques amount of
Rs.7,56,704/ within 15 days from the date of receipt of the said
Advocate's Notice dated 13th September, 2003. In reply, to the said
Notice the defendant alognwith their letter dated 19th September, 2003
sent their cheque No.184208 dated 24th September, 2003 for
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Rs.56,704/ drawn in his favour in lieu of their earlier cheque
No.760021 dated 12th June, 2003. Therefore, plaintiff filed this suit.
7. Defendant has filed reply and contended that defendant
Company is registered with the Board for Industrial Finance and
Reconstruction (BIFR) under reference No.303 of 2003. It is further
contended that as per section 22 of the SICA Act, all the legal
proceedings are required to be suspended. Defendant has further stated
that due to BIFR proceedings, the present suit is not maintainable and
prayed to dismiss the same.
8. As per roznma of the case on 16.12.2017, advocate for plaintiff
submitted that, the BIFR report is not available and the act itself is
repealed. It appears defendant has not produced any documents to
show that still their Company is registered with BIFR or the proceedings
are required to be stayed under any of the Act. But plaintiff has
submitted the status from the website of Corporate Affairs showing the
status of defendant's Company as active. Hence, plaintiff has sufficiently
shown that now the defendant Company is not legally disabled from
continuing with the suit. The contention of defendant that due to BIFR
proceedings suit is not maintainable is without any substance and
stands rejected.
9. Plaintiff has adduced all the corroborating documents with his
allegations in the plaint which are Original copy of the Bill dated 24th
April, 2001, Original copy of Letter dated 14th June, 2003, Original
Copy of Letter dated 15th July, 2003, Copy of dishonoured cheques
along with Bank Memo, Original copy of letter dated 13.09.2003,
original copy of letter dated 19th September, 2003, original copy of
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letter dated 24th September, 2003 and original copy of Advocate Letter
dated 19th November, 2004 along with Registered A.D. Receipt and
acknowledgement cards. Defendant had not taken pain to challenge any
of the allegations of the plaintiff regarding liability. From all the
documents produced on record and the averment in the plaint and
affidavit of claim plaintiff has shown that he is entitled to get sum of
Rs.7,00,000/ from the defendant.
10. As discussed above, the contention of defendant that BIFR
proceedings are pending, therefore, suit is not maintainable is rejected.
Defendant has not raised any other substantial defence or raised triable
issue to grant him leave to defend. Plaintiff has sufficiently shown that
he is entitled to get sum of Rs.7,00,000/ from defendant. Hence, it will
not be proper to grant leave to defend to defendant, it will be proper to
decree the suit as per Order XXXVII of the Code of Civil Procedure,
1908.
11. It appears that as per Section 34 of the Code of Civil Procedure, it
will be proper to direct defendant to give interest @ 9% p.a. on the
amount of Rs.7,00,000/ from the date of filing of the suit till its
realisation. Hence, following Order:
ORDER
1. Summons for Judgment No.64/2019 is made absolute.
2. It is hereby ordered and decreed that :
(i) Defendant is directed to pay sum of Rs.7,00,000/ to plaintiff
alongwith interest @ 9% p.a. from the date filing of the suit till
its realisation.
(ii) Defendant shall bear the cost of plaintiff at their own.
(iii) Plaintiff is entitled for refund of Court fee as per rules.
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(iv) Decree be drawn accordingly.
(v) Summary Suit No.6611/2005 is disposed of.
(SONALI P. AGARWAL)
Judge,
Date: 27.09.2019. City Civil Court,
Gr. Bombay.
Dictated on : 27.09.2019
Transcribed on : 27.09.2019
Signed on : 27.09.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
03.10.2019 At 5:08 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Ms. SONALI P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
27.09.2019
Judgment/Order signed by P.O. on 27.09.2019
Judgment/Order uploaded on 03.10.2019
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