Final Order 1

Order Details: Other
Pdf Text: MHCC010022652019 Presented on 28/02/2019
Registered on 28/02/2019
Decided on 18/09/2024
Duration 05Y: 06M: 18D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 67 OF 2019
IN
SUMMARY SUIT NO. 205 of 2018
Neo Impex Stainless Pvt. Ltd. ]
Having its registered office at 2, ]
Ground Floor, Building No.12, ]
Mehta Kunj, Sadashiv Lane, ]
V. P. Road, Mumbai-400 004. ]...Plaintiff
Vs. ]
Apoorva Pandya ]
Proprietor of M/s. Petro Chem Industries ]
Having its office at Plot No.56-57, GIDC, ]
Por-Ramangamdi, Vadodara-391 243, ]
Gujarat, India And 110/B, ]
Keshavji Naik Road, Hanuman Building, ]
Ground floor, Office No.2/B ]
Mumbai-400 009. ]...Defendant
Appearance:-
Ld. Advocate Gauraj Shah with Adv. Swati Kamble for the plaintiff.
Ld. Advocate Asha Dilip More i/b. Bhave & Co. for defendant.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 18/09/2024.
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ORDER
( Dictated and pronounced in open Court)
01] The plaintiff has filed this summons for judgment against
defendant on 07/09/2018. Defendant filed its reply to the summons for
judgment and resisted it and prayed for unconditional leave to defend
the suit. Plaintiff has filed rejoinder to the said reply.
02] As per the plaintiff, it is a company engaged in business of
trading of Stainless Steel Plates, Pipes and Rod. Defendant is a
proprietor of M/s. Petro Chem Industries. Defendant approached the
plaintiff in Mumbai for supply of stainless Steel Plates, Stainless Steel
Ingot, Stainless Seel Round Bars. Plaintiff has supplied to the defendant
on verbal orders placed by the defendant from January 2015 to January
2016 from Mumbai. Accordingly, plaintiff has raised invoices against the
defendant. The present suit is in respect of six (6) unclaimed invoices.
The plaintiff has supplied and delivered goods to the defendant as per
said invoices and defendant has not raised any dispute with respect to
the quality and quantity of the said goods. Defendant has made
payment for all invoices except six disputed invoices. The plaintiff has
received amount at Mumbai by RTGS. Plaintiff had made several
reminders to the defendant by email to make the payment however,
defendant failed to make the payment. Further, vide email dated
27/02/2016 defendant purportedly put payment on hold on alleged
quality issue and site rejection. On 22/06/2016 defendant by email
attached debit note date 31/03/2016 in respect of six (6) unpaid bills
and claimed rejection of 'SS Flanges' under said unpaid bills. However,
the goods which defendant wants to reject are not sent by the plaintiff.
Therefore, the claim of the defendant that he has sustained loss hence,
suit is not maintainable. Moreover, defendant has not returned goods
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till date which were supplied to him as per six invoices. The plaintiff
has made reminder for furnishing 'C Form' in respect of invoices dated
12/10/2015, 24/10/2015 and 12/01/2016 however, defendant has not
furnished the said 'C Forms'.
03] Further, the defence raised by the defendant is not
substantial defence as the goods which defendant is claiming to be the
inferior quality are not goods supplied by the plaintiff. Further,
defendant has raised issue of jurisdiction however, it is specifically
mentioned in invoices that dispute is subject to Mumbai jurisdiction.
Plaintiff has supplied goods from the Mumbai and he has delivered
goods from Mumbai therefore, this Court has jurisdiction. He relied on
ratio laid down in Yash Chhabra vs Maya Jain, MANU/DE/1911/2015.
Further, defendant has appeared in the matter on 09/04/2019 and
summons for judgment is taken out on 07/09/2018 therefore, it is
within limitation. It is further submitted that defendant has not raised
substantial defence. The plaintiff has relied on ratio laid down in Maya
Jain vs. Yash Chabra, MANU/DE/1308/2015, wherein it is observed
that if defence of the defendant is moonshine, he is not entitled for
leave to defend. Hence, defendant is not entitled for leave to defend.
Hence, summons for judgment may be allowed.
04] On the other hand, it is submitted by the defendant that
the plaintiff has filed suit for recovery is not maintainable under Order
37, Rule 2 of C.P.C. Further, there is delay to take out the summons for
judgment by the plaintiff and delay is not explained satisfactory by the
plaintiff. Therefore, suit and summons for judgment liable to be
dismissed. It is the contention of the defendant that summons for
judgment taken out after 10 months after appearance of the defendant.
Further, as per general terms of contract attached to email sent by the
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plaintiff to the defendant (page No. 25 of reply) it is specifically
mentioned that transaction took place in Vadodara and therefore, this
Court has no jurisdiction to try the suit. The business relation between
defendant and one Ashok Bhandari, Proprietor and C.E.O. of Pioneer
Forge is since 8 years. As Ashok Bhandari requested Chintan Pandya,
employee of defendant to make purchase orders in the name of plaintiff.
Therefore, defendant has sent purchase orders by email along with GTC
to Pioneer Forge for purchase of flanges (Exh.C). At the same time,
similar email was sent to plaintiff to purchase flanges however, plaintiff
has sent different goods. The documents at Exh. A, B and C shows that
business transaction was between Pioneer Forge and Petro Chem.
Further, the defendant has clarified that purchase orders annexed at
Exh. A to the plaint are not subject matter of this suit. However, this
shows that the contention of plaintiff that defendant has placed verbal
order is false. It is the specific contention of the defendant that they
have never placed orders of SS Plates, SS Ingots and SS Round Bars
from the plaintiff. Therefore, there is no cause of action to file the suit
against the defendant. The plaintiff and Mr. Ashok Bhandari of Pioneer
Forge have deliberately manipulated and sent goods other than
mentioned in the purchase order. The plaintiff has sent the goods which
were not claimed by the defendant which were further supplied by
defendant to customers and said goods were rejected. Therefore,
defendant has suffered the loss of Rs. 3,09,00,000/-. The defendant had
informed said fact to the plaintiff. The defendant has relied upon
invoice filed vide list to show that goods were ordered by the Pioneer
Forge with plaintiff and defendant is not concerned with it. Further, it is
submitted that goods supplied by the plaintiff were sent to the Reliance
Industries Ltd. however, said goods found to be sub-standard quality
and came to be rejected and moreover, defendant company was black
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listed. Thus, the defendant has filed on record the purchase orders
alongwith GTC issued to the defendant to purchase goods. As defendant
has raised substantial defence and also triable issues, he is entitled for
unconditional leave to defend the suit. Thus, the defendant has
substantial defence and raised substantial triable issues which requires
adjudication. Defendant has relied on ratio laid down in IDBI
Trusteeship Services vs. Hubtown Limited, (2017) 1 SCC 568 and
Milkhiram (India) Pvt. Ltd. vs Chamanlal Bros., AIR 1965 SC 1698.
Therefore, defendant is entitled for unconditional to defend the suit.
Hence, summons for judgment may be dismissed.
05] Perused Summons for Judgment, reply of the defendant,
rejoinder filed by the plaintiff and documents on record. I have gone
through case laws cited on behalf of both parties. Heard both the
parties. On perusing contentions of both the parties, it appears that
there is trading between the plaintiff and defendant as it appears from
purchase orders (Exh. A, A1) and invoices (Exh. C1 to C6) filed on
record by the plaintiff. Further, on perusing said purchase orders, it
appears that S.S. Plates were ordered by the defendant. Even, on
perusing email dated 17/09/2014 (Exh. A) filed by the defendant with
reply shows that S.S. H.R. Plates were ordered. There is nothing on
record to show that defendant had ordered SS Flanges.
06] As per the plaintiff his case is based on the six (6) invoices
by which he has sold and supplied S.S. Plates, SS Ingots and SS Round
Bars to the defendant. On the contrary, it appears that defendant has
raised contentions that plaintiff has not supplied goods which were
demanded by the defendant. As discussed above, there is nothing on
record that defendant received different goods than which he had
ordered. However, it is not disputed that defendant has received S.S.
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Plates, S.S. Ingots and S.S. Round Bars. There is nothing on record to
show that defendant had immediately raised objection with respect to
different goods sent by the plaintiff. Even, there is nothing on record to
show that defendant has returned goods which it has wrongly received
by it to the plaintiff.
07] Further, it is the contention of the defendant that he had
placed purchase order for S.S.Flanges and plaintiff had supplied S.S.
Plates, S.S. Ingots and SS round bars that to of inferior quality to
defendant. There is nothing on record to show that defendant has
informed to the plaintiff about the such inferior quality and raised the
objection. Defendant has relied on copy of email dated 13/02/2016
(Exh. D) filed with reply to show that goods which he had sent to
customers were rejected. However, it appears from record that
defendant has not returned the said goods to the plaintiff. As per the
contention of the defendant that he has sustained loss of
Rs. 3,09,00,000/- which he has to prove by adducing evidence.
08] It is the contention of the defendant that transaction is
between plaintiff and one Mr. Bhandari and at his instance purchase
order was placed with plaintiff. Defendant has relied on (Exh. A) filed
with reply to show defendant has not placed purchase order. The
defendant has to prove said fact by adducing evidence. If transaction
was not between plaintiff and defendant then why defendant has issued
email dated 22/02/2016 (Exh. F & G) filed vide list Exh. 3/5 and 3/6
regarding debit note and 'C Form'. Further, the defendant has raised
issue of jurisdiction and he has relied on GTC filed along with email
purchase order to show that this court has no jurisdiction. On the
contrary, on perusing invoices issued by the plaintiff, it appears that it is
specifically mentioned dispute subject to Mumbai jurisdiction.
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Therefore, I am of the view that there is no substance in the contention
of the defendant in respect of issue of jurisdiction. Has, ratio laid down
in Yash Chabra vs. Maya Jain's case law cited supra on behalf of plaintiff
is applicable to the facts of present case. Further, defendant has raised
issue that summons for judgment is not filed within limitation. As per
the defendant himself, he has appeared through advocate on
09/04/2018 and summons for judgment is taken out 06/09/2018. As
per City Civil and Sessions Court's Rules summons for judgment has to
be taken out within 6 months from the date of filing of the plaint.
Admittedly, plaint is filed on 04/12/2017. However, unless defendant
causes his appearance there is no question of taking out summons for
judgment therefore, it can be said that from the date of appearance of
the defendant plaintiff has to take out summons for judgment within six
(6) months. Therefore, it appears that summons for judgment has been
taken out within limitation. Thus, it appears that defendant has not
raised any substantial defence however, he has raised some triable
issues. Therefore, ratio laid down in IDBI Trusteeship Services vs.
Hubtown Limited and Milkhiram (India) Pvt. Ltd. vs Chamanlal Bros.'s
case law cited supra are not helpful to the defendant. Even, ratio laid
down in Maya Jain vs. Yash Chabra is not applicable to the present case,
as defendant has raised some triable issues. As discussed above,
defendant has raised some triable issues, I am of the view that
defendant is entitled for conditional leave to defend the suit. Therefore,
it would be proper to grant conditional leave to defend the suit subject
to payment of 50% on principal amount by the defendant. Hence, I
proceed to pass following order.
ORDER
1) Summons for Judgment No.67/2019 in Summary Suit
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No. 205/2018 is disposed off as follows:
(a) Leave to defend the suit is granted to the defendant subject
to condition that he shall deposit 50% of principal amount
within 60 days from the date of this order.
(b) The defendant will be at liberty to file his written
statement on record within 30 days after depositing amount.
2) After depositing amount by the defendant, it be deposited in fixed
deposits in any Nationalized bank as per rules.
3) No order to costs.
4) Summons for Judgment No. 67/2019 is disposed off accordingly.
(Sangram S.Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date: 18/09/2024 Court Room No.81
Dictated on : 18/09/2024
Corrected & signed on :26/09/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
30/09/2024 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 18/09/2024
JUDGMENT/ORDER signed by P. O. on 26/09/2024
JUDGMENT/ORDER uploaded on 30/09/2024
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