Order 1

Order Details: Other
Pdf Text: SJ in Suit No.761/17 Order 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGEMENT NO.49 OF 2018
in
SUMMARY SUIT NO.761 OF 2017
M/s.Narvin Chemical Corporation
A registered partnership firm, registered under the
Indian Partnership Act, 1952,
having its registered office at 8/4, Parekh Mahal,
Veer Nariman Road, Churchgate,
Mumbai 400020.
Through its accountant by name,
Mr.Chetan Ramniklal Dani ...Plaintiff
V/s
M/s.Shwet Biotech Pvt.Ltd.
A Private Limited Company incorporated under
Indian Companies Act, 1956, having it's office at
A516, Sagar Tech Plaza, Saki Naka,
Andheri Kurla Road, Opposite Hotel Sudarshan,
Mumbai400072.
AND
C8, Raj Nagar Society, Opposite Maharaja Hotel,
Near Western Express Highway,
Dahisar (East), Mumbai400068. ...Defendant
Coram : His Honour Judge Shri M.M.UMAR(C.R. No.28)
Dated : 12/02/2019
Adv. Mr.Paras Vira for plaintiff.
Adv. Mr.Dixit for defendant.
ORDER BELOW SUMMONS FOR JUDGMENT NO. 49/18
1. The plaintiff has filed the suit under the provisions of Order 37 of
Code of Civil Procedure against the defendants for the recovery of
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SJ in Suit No.761/17 Order 2
Rs.17,71,418/ alongwith future interest at the rate of 24% p.a. on
principal amount of Rs.12,14,576/ from the date of filing of the suit till
its realization. This decree is prayed by the plaintiff on the following
facts narrated in short that:
It is a case of plaintiff that it is registered partnership firm and
the defendant is a registered Private Limited Company. As per purchase
order placed by the defendant with the plaintiff, the plaintiff sold and
supplied Chemicals by name 'SODA KARB TM' vide invoice no.C586 and
C617 dated 9/1/2015 and 10/2/2015 for Rs.6,07,288/ and
Rs.6,07,288/ respectively. The said goods were delivered at the address
of the defendant through M/s.New Good Luck Transport vide delivery
order dated 10/2/2015. The said goods were duly received by the
defendants and the defendants never raised any dispute regarding the
quantity and quality of the said sold goods. It is the contention of the
plaintiff that the defendant was required to make the payment within 30
days from the date of receipt of the invoice but the defendant failed to
do so and Mr.Santosh Ranjit Singh in the capacity of Director of the
defendant issued the cheques in favour of the plaintiff, as under:
Cheque Nos. Cheque dated Cheque Amounts Cheques drawn on
024984 26/03/2015 2,02,429.00 Union Bank of India
Powai, Mumbai400076
024985 31/03/2015 2,02,430.00 do
024986 04/04/2015 2,02,429.00 do
026230 12/04/2015 2,02,429.00 do
026231 19/04/2015 2,02,430.00 do
026232 26/04/2015 2,02,429.00 do
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SJ in Suit No.761/17 Order 3
The plaintiff presented the said cheques for encashment but
the said cheques were dishonoured and returned back to the plaintiff
with Bank return Memos. It is contended that the defendant failed to
make the payment of the goods, though repeatedly demanded by the
plaintiff. Ultimately, the plaintiff issued the notice through their advocate
on 20/4/2015 and 5/5/2015 but the defendants failed and neglected to
make the payment. Consequently, the plaintiff has filed the present suit.
2. Upon service of the plaintiff, appearance was filed by the
defendants, thereafter the plaintiff took out Summons for Judgment
No.49/18 to which an application for leave to defend is filed by the
defendant supported by an affidavit.
3. In the affidavit, it is contended by the defendant that the suit
is filed on the basis of false and concocted documents and that the
Summons for Judgment as taken out by the plaintiff is false and
vaxatious. So also, it is contended that in the suit triable issues are
involved therefore, it is requested to grant the unconditional leave to
defend the suit.
4. Heard. Learned advocate for the plaintiff has submitted that it is
not in dispute that the defendant issued the cheques to the plaintiff.
There is no dispute that the said cheques are dishonoured. It is submitted
that the plaintiff is entitled to recover a debt due and payable by the
defendant on the basis of written contract of the goods sold, supplied
and delivered to the defendants vide invoice dated 9/1/2015,
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SJ in Suit No.761/17 Order 4
10/2/2015 for Rs.6,07,288/ each. It is submitted that the defendants
have no defence, so also, it is submitted that the Summons for Judgment
taken out by the plaintiff be made absolute.
5. Per contra, the learned advocate for the defendant has
submitted that as per the facts of the case and circumstances the suit as
framed and filed under Order 37 of Civil Procedure Code is not
maintainable. It is submitted that no goods were sold, supplied and
delivered by the plaintiff to the defendant. It is submitted that the
invoices are fabricated and it is contended that the defendants have
triable case and therefore it is requested to grant the unconditional leave
to the defendants. Otherwise the serious prejudice would cause to them.
Lastly, it is requested to dismiss the Summons for Judgment.
6. On going through the documents on record it appears that the
plaintiff sold and delivered the abovesaid goods to the defendant
through M/s.New Good Luck Transport vide delivery order of the
plaintiff bearing no.C586 dated 9/1/2015 and C617 dated 10/2/2015.
It also appears that one Mr.Santosh Ranjit Singh in the capacity as
Director of the defendant has issued the cheques, as stated above, but
they were dishonoured when the plaintiff presented the same for
encashment as per the Bank Memos placed on record. Therefore,
considering the documentary evidence on record they are self evident
and speaks for themselves. No payment came forth thus, compelling the
plaintiff to ultimately file this suit.
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SJ in Suit No.761/17 Order 5
7. In the matter, it appears that the defendant has failed to
indicate a substantial defence or indicate that the defence intended to be
put is flawless or vexatious. From the documentary evidence on record it
appears that for the sake of record the defendant has denied the suit
claim. Hence, in view of the matter, in my opinion, it will be just and
proper to grant the conditional leave to the defendant by directing them
to deposit the amount of Rs.12,00,000/ in the Court within 2 months
from the date of this Order. Hence, in view of the matter, following
order:
: ORDER :
1. Summons for Judgment no.49/18 is partly allowed.
2. Conditional leave to defend the suit is granted to the defendants
subject to deposit of an amount of Rs.12,00,000/ in the Court within 8
weeks from the date of this Order, without fail.
3. After depositing the said amount the defendants are at liberty to
file their Written Statement within 4 weeks.
4. In the event of deposit being so made, suit be transferred to the list
of Commercial causes with Written Statement.
5. In the event of deposit not being so made, plaintiff may apply for
Judgment.
6. Summons for Judgment no.49/18 is disposed of accordingly.
(M.M.Umar)
Judge,
12/02/2019 City Civil Court, Gr. Mumbai.
Date of Dictation : 12/02/19
Date of Transcription : 12/02/19
Date of signature : 22/02/19
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SJ in Suit No.761/17 Order 6
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
22/2/2019 1.30p.m. Mrs.Jyoti R.Mane
Name of the Judge HHJ Shri M.M.Umar(CR No.28)
Date of Pronouncement of
Judgment/Order.
12/2/2019
Judgment/order signed by P.O on 22/2/2019
Judgment/order uploaded on 22/2/2019
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