Final Order 1

Order Details: Copy of Judgment
Pdf Text: S.J.80/19 SUMMARY SUIT 1180/2018 1
IN THE CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT NO.80 OF 2019
IN
SUMMARY SUIT NO.1180 OF 2018
(CNR.NO.MHCC010024152019)
Mr. Chetan Ramniklal Shah,
Adult, Age 46 years, Occ: Business.
Residing at Plot No.296, Shop No.5,
Jaikisan Building, R.N.Narkar Road,
Pant Nagar, Ghatkopar(East),
Mumbai400 075,
Mobile No.09820073572
Email gautamlighting@rediffmail.com ...Plaintiff
V/s.
Mrs. Beenaben Rajeshbhai Shah
1401, RNA Aurovilla, 14th floor,
Gujar Lane, Off.Jain Derasar Road,
Landmark, Lane, Opp.Rass Boutique,
S.V.Road, Santacruz(West),
Mumbai400 054. ...Defendant.
Apearances:
Advocate Ms.Kshitija Vaidya for the Plaintiff.
Advocate Mr.Rajesh Bhosale for the Defendant.
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CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATED : 16TH DECEMBER 2019
ORDER
1. This is summons for judgment for recovery of Rs.1,77,028/ (Rupees
One Lakh Seventy Seven Thousand and Twenty Eight only) with interest
@ 12% p.a.
2. According to the plaintiff he is into business of selling electrical
goods and lightings. The plaintiff knows the defendant as there had been
business transactions between them as the defendant purchased goods
from the plaintiff and his another firm namely Gautam Lighting in 2017,
the defendant visited the plaintiff's shop for purchasing goods worth
Rs.87,000/. The defendant also made payment for the same by NEFT.
Again, in NovemberDecember 2017 the defendant placed order for
purchase of goods. The said goods were delivered to the defendant's
residence by plaintiff’s transport that is Rickshaw. The defendant was to
make payment after receipt of goods. The plaintiff’s transport driver Raju
Dewde delivered said goods at the defendants residence. The defendant
kept all the goods and acknowledged the chalans. The defendant by calling
the plaintiff told that she is going out of town and therefore, will make
payment after few days and the plaintiff may send invoices after she comes
back. The plaintiff later raised invoices bearing No.379, 391 and 144 in
respect of said transactions. The defendant received the goods and utilized
the same without any dispute as to its price, quantity and quality.
Therefore, the defendant is legally liable to pay the sum of
Rs.1,77,028.74/ for purchase of said goods. However, the defendant
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S.J.80/19 SUMMARY SUIT 1180/2018 3
avoided to make payment. Though notice of demand dated 19/07/2018
was served on the defendant, the defendant failed to comply the same.
Therefore, the plaintiff prayed for recovery of Rs.1,77,028/ with interest
@ 12% p.a.
3. The defendant admitted that she had purchased goods from the
plaintiff Chetan Shah under his concern Jet Trading Company. However,
the defendant denied that she purchased goods from the plaintiff under his
concern Gautam Lighting. The defendant contends that she purchased the
goods vide chalan No.327 and 328. However, rest of the chalans are false
and frivolous. Same chalans are not signed by any one. Or, if signed, the
same do not bear the defendant's signature. The defendant contended that
the plaintiff did not raise the invoices in legitimate manner. The defendant
also contends that she has already made payment regarding the chalan
No.327 and 328. In any case, she contended that she has not purchased
the goods from the plaintiff under his concern Gautam Lighting.
4. Considering the material on record and submissions made on behalf
of the parties points arise for determination along with my findings
thereon for the reasons recorded are as under:
POINTS FINDINGS
1. Whether the plaintiff is entitled to
summons for judgment?
No
2. Whether the defendant is entitled
to leave to defend? If yes, whether
conditional/unconditional?
Yes. Unconditional leave.
3. What order? As per final order
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REASONS
AS TO POINTS NO.1 TO 3:
5. The Ld. Advocate on behalf of the plaintiff argued that the
documents filed on record show that the plaintiff sold and delivered goods
as per chalans and same were acknowledged by defendant. Thus, the
defendant admits liability under the said chalans. The invoices along with
the chalans prove the liability of the defendant. On this ground, he
requested to grant the summons for judgment.
6. On the other hand, the Ld. Advocate on behalf of the defendant
argued that the goods only as per the delivery chalans bearing No.327 and
328 were received by the defendant. Regarding the same the defendant
has made cash payment to the goods delivery person. He argued that the
plaintiff has not confirmed payment of Rs.33,099/ by cheque, though said
cheque was cleared and honoured. The defendant did not purchase any
goods from the plaintiff under his concern Gautam Lighting. Therefore, the
defendant is not liable. Therefore, Ld.advocate on behalf of the defendant
requested to reject the summons for judgment and grant unconditional
leave to defend.
7. The present case is concerned regarding purchase of the goods by
the defendant from the plaintiff's concern Gautam Lighting. The defendant
has admitted that she purchased the goods vide chalan No.327 and 328.
Those chalans are in respect of plaintiff's other concern Jet Trading
Company and not the present concern Gautam lighting. The chalans
No.325, 1032 do not show as to whether it is from the proprietory concern
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Gautam lighting or Jet Trading of the plaintiff. Chalan No.325 and 1032
are also not signed by any person. In other words, the said chalans do not
contain the signatures of the defendant. The chalan No.408, 661 appear to
be of the concern Gautam lighting. However, chalan No.661 does not bear
signature of the defendant. Chalan No.408 though bears signature, the
defendant has denied the same signature to be of her. Thus, whether
chalan No.408 was signed by the defendant and whether goods as per
chalan No.325, 1032, 661 and 408 were delivered and sold to the
defendant are the questions which require leading of evidence. The tax
invoices do not contain the signatures of the defendant. Thus, the chalans
and the invoices do not prove liability of the defendant at this stage.
Resultantly, it is matter of adjudication after framing issues as to whether
the defendant has any liability to pay the plaintiffs concern Gautam
lighting. Thus, the defendant has brought triable issues as to whether the
plaintiff through his concern Gautam lighting sold the goods to the
plaintiff and the defendant accepted the goods so as to make her liable.
8. In these circumstances, the plaintiff is not entitled to sign to the
judgment. The defendant is entitled to unconditional leave to defend.
Hence, point No.1 is answered in the negative whereas point No.2 is
answered as that the defendant is entitled to unconditional leave to
defend. In answer to point No.3 order as follows is passed.
ORDER
1. The summons for judgment No.80/2019 is rejected.
2. Unconditional leave to defend is granted to the defendant.
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3. The defendant shall file written statement within 4 weeks from the
date of uploading of the present order.
4. The Registrar is directed to complete the process and formalities for
conversion of present suit and register as Short Cause suit on filing
of the written statement by the defendant.
5. The summons for judgment No.80/2019 is disposed accordingly.
(Deepak L. Bhagwat)
AdHoc Judge,
City Civil Court, Gr. Mumbai
Date: 16/12/2019
Dictated on : 16/12/2019
Transcribed on : 20/12/2019
Signed on :22/12/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
03/01/2020 at 10.55p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Shri.Deepak L. Bhagwat
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
16/12/2019
Judgment/Order signed by P.O. on 22/12/2019
Judgment/Order uploaded on 02/01/2020
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