Final Order 1

Order Details: Copy of Judgment
Pdf Text: S.J.81/19 SUM.SUIT 1256/2018 1
IN THE CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT NO.81 OF 2019
IN
SUMMARY SUIT NO.1256 OF 2018
(CNR.NO.MHCC010024162019)
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.
Appearances:
Advocate Ms.Shitija Vaidya for the Plaintiff.
Advocate Mr.Rajesh Bhosale for the Defendant.
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.1,51,425/
(Rupees One Lakh Fifty One Thousand Four Hundred and Twenty Five
only) with pendente lite and future interest @ 12% p.a.
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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 Dewade delivered said goods at the defendant's 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.154, 156 to 162 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.1,51,425/ for purchase of said goods. However, the
defendant 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.1,51,425/ with interest @ 12% p.a..
3. The defendant filed reply contesting the summons for judgment.
The defendant submitted that the plaintiff has several concerns such as
'Gautam Lighting', the proprietary concern of Chetan R Shah HUF and
'M/s. Jet Trading' the proprietary concern of Chetan R Shah. The
defendant admitted that during NovemberDecember 2017, she had
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purchased some lighting products for her residential use from the
plaintiff vide delivery chalan bearing No.327 and 328 issued in the
name of plaintiffs concern Jet Trading Company. The defendant did not
purchase anything from the Gautam Lighting. The defendant admitted
that the goods as per chalan No.327 and 328 were received by her.
According to the defendant rest of the chalans are false as the same are
either not signed or signed by the person unknown to the defendant.
The invoices as alleged regarding the transactions are raised by the
plaintiff on 30/01/2018 and 01/02/2018. Thus, the same are raised
more than one month after raising the chalans. The plaintiff was liable
to raise the invoices in legitimate manner before delivery or discharge
of the goods and send the invoices with the goods to be delivered to the
customers. Even in respect of payment of Rs.87,000/ about earlier
transactions the plaintiff has not issued invoices to the defendant. The
invoices furnished in the present matter do not give reference to any
chalans raised during NovemberDecember 2017 or about the delivery
or dispatch of the goods referred in the said invoices. Thus, there is no
link between the invoices and the chalans. Apart from the payment of
Rs.46,800/ and Rs.40,000/ as made by the defendant through NEFT
in respect of earlier transaction, the payment of Rs.33,099/ vide
cheque No.899175, of January 2017 has not been confirmed by the
plaintiff, although the said cheque had been cleared and the amount
was debited from the account of the defendant.
4. On receipt of goods as per chalan No.327 and 328, the defendant
made cash payment of Rs.45,000/ on 20/11/2018 and Rs.36,000/ on
22/11/2018 in presence of six people who have executed affidavit
regarding the said payment. Said payment was made by the defendant
to the plaintiff's Auto Rickshaw Driver namely Pandurang who had
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transported the goods to the defendant from the plaintiff. Said
Pandurang has signed vouchers regarding the payment of Rs.45,000/
and 36,000/. Thus, the payment in respect of the goods delivered to
the defendant in November, 2018 has already been made to the
plaintiff. The defendant denied that the plaintiff delivered any goods
through Gautam Lighting, another concern of the plaintiff. The
defendant further contended that she has also made total payment of
Rs.2,008,99/ even before the receipt of any invoices from the plaintiff.
Therefore, the defendant requested to grant unconditional leave to
defend and not to pass any order or decree against him and to direct
the plaintiff to return him the sum of Rs.2,00,899/.
5. 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?
In the affirmative.
Unconditional leave.
3. What order ? As per final order
REASONS
AS TO POINTS NO.1 TO 3
6. 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,
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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.
7. 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. Regarding the
present transaction the defendant had already made payment in cash.
Thus, 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.
8. Having perused the record, admittedly the plaintiff and
defendants are acquainted with each other as they had transactions in
past also, that is prior to the dispute transaction. Even defendant has
discharged the earlier dues. The dispute is regarding transactions of
NovemberDecember 2017. The plaintiff claims that on delivery of
goods the defendant acknowledged receipt of the same vide the
chalans. However, chalans bearing No.325, 1032, 661 do not appear to
have been signed. It is not clear from the photo copy of chalan 325 and
1032 as to whether the goods were sold from the Jet Trading Company
or Gautam Lighting. In any case, the defendant has admitted her
signatures only on chalans No.327 and 328. Rest of all the chalans have
been denied by the defendant. The defendant contends that these
chalans are either unsigned or signed by some person other than the
defendant. The defendant contends the same chalan, to be forged and
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fabricated. Now, whether the chalan except chalan No.327 and 328,
have been executed by the defendant, requires leading of evidence to be
assertained. In other words the defendant brought triable issue whether
the chalans, except chalan No.327 and 328, have been executed by her.
9. As regards the chalan 327 and 328, the defendant claims that she
has made payment regarding the same. The defendant has also
produced copies of vouchers executed by Pandurang. According to the
defendant, Pandurang is the goods delivery person of the plaintiff. The
defendant has also filed affidavit of six persons mostly who were
working in the renovation of her house. In the said affidavit said
persons stated that the defendant made cash payment of Rs.45,000/ on
20/11/2018 and Rs.36,000 on 22/11/2018 to Pandurang in their
presence against delivery of goods. At this stage, the vouchers cannot
be straight way disbelieved. The question whether the defendant made
the payment against the delivery of goods as per chalans 327 and 328 is
again the question which requires leading of evidence for decision.
Thus, the defendant has brought triable issue as to whether she made
payment regarding the goods delivered on 20/11/2018 and
22/11/2018.
10. It is argued on behalf of the plaintiff that if earlier payments were
made by NEFT, it cannot be believed that subsequent payment can be
made by the defendant by cash. This court must note that such
contention may be properly appreciated at the final arguments after the
trial in regular mode. However, at this stage, no absolute inference can
be drawn as to whether the defendant made the payment or not. As
already said it requires leading of evidence. The invoices have not been
signed by the defendant. Therefore, on the basis of same, at this stage,
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no liability can be fastened on the defendant.
11. Thus, the defendant has brought triable issues. Resultantly,
unconditional leave deserves to be granted to the defendant. Therefore,
the plaintiff is not entitled to summons for judgment, whereas, the
defendant is entitled to unconditional leave to defend. Hence, point
No.1 is answered in the negative whereas, point No.2 is answered in the
affirmative as unconditional leave to defend. In answer to point No.3
order as follows is passed:
ORDER
1. The summons for judgment No.81/2019 is rejected.
2. Unconditional leave to defend is granted to the defendant.
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.81/2019 is disposed accordingly.
(Deepak L. Bhagwat)
AdHoc Judge,
Date: 16/12/2019 City Civil Court, Gr. Mumbai
Dictated on : 16/12/2019
Transcribed on : 20/12/2019
Signed on :22/12/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
02/01/2020 at 1.15p.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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