Final Order 1

Order Details: Other
Pdf Text: MHCC010024922018
EXH.
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON
SUMMONS FOR JUDGMENT NO.55 OF 2018
SUMMARY SUIT NO.1426 OF 2017
PRATUL CHEMICALS PVT. LTD. ...Plaintiff.
V/s.
M/S ALPHAGAM COATINGS SOLUTIONS PVT. LTD
& 2 ORS.
...Defendants.
Appearances:
Adv. A.K.Singh For plaintiff.
Adv. Ashish
Suryavanshi
For defendants.
CORAM : HIS HONOUR JUDGE
N. B. LAVTE
(C.R.No.83)
DATED : 24th July, 2025
ORDER
The suit is filed for recovery of an amount of Rs.8,58,774/-
based on invoices. In the same suit the present Summons for Judgment is filed
with prayer to make it absolute.
2. The brief facts necessary to decide the SJ is that:
The defendant No.2 Acting foreign on behalf of defend number
one had in past placed various orders for two pigment colors namely Primrose
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Chrome and Nubivan Y-901 which were supplied and no any complaints or
disputes were raised by the defendants. The last orders placed by the
defendants are the subject matter of suit. The invoices for the order placed
were raised and they were acknowledged by defendants. The goods were
delivered through Reema Transport Pvt. Ltd. The defendant on 03.09.2015
orally complained that the color of pigment Primrose Chrome P-31 supplied
on 30.07.2015 when used for manufacturing paints for painting buses, there
was change in the color shade of the pigment after exposure to sunlight
within four days from the date of application of the paint and requested to
check the batch from the manufacturer. By email defendants were informed
that the complaint was referred to the manufacturer and on test no deviation
was observed.
3. The plaint reveals e-mails were exchanged between the parties
blaming each other for the loss and defendants demanding to reimburse the
cost of the material supplied and rework cost. It also further goes to show that
Director Mr. Ashok Gulrajani visited Goan and met defendant No.2. As the
defendants failed to make payment, suit came to be filed.
4. The defendants filed their reply through Director Mr. Anil Nair
and objected the SJ on the grounds of non-joinder of necessary parties and
territorial jurisdiction. It is their specific defence that, defendant No.1
supplies paints and coatings to customers for the purpose of painting buses.
Previously also Primrose Chrome P-31 was purchased and there were no any
complaints received from the customers. However, the last batch of 300 k.g of
Primrose Chrome-31 supplied was defective, sub-standard and contrary to the
earlier supplied made and various complaints were received from the
customers that the color changed from its original “Bright Pigment
Paste/Bright Lemon Yellow” to “dark blackish yellow” on exposure to sun light
within few weeks. About 168 buses were repainted at the expenses of
defendant No.1 for which an amount of Rs.15,00,000/- to 20,00,000/- was
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incurred. E-mails were sent to plaintiff informing the same by sending photos.
The defect was admitted by Mr. Vinod Mehra and accepted the quality and
defect on the Technical Data Sheet. Mr. Vinod Mehra agreed to make good the
loss. However, instead filed the suit to pressurise the defendants. The suit
involves triable issues which will require evidence of expert. Hence dismissal
of SJ with un-conditional leave to defend the suit is prayed.
5. Heard Adv. Singh for plaintiff and Adv. Suryavanshi for the
defendants. As per the Adv. Singh the defendants are not denying supply of
goods and issuance of invoices, but, defence of Primrose Chrome P-31 being
defective is taken. The price of the alleged defective Primrose Chrome P-31
300 k.g is Rs.68,400/-, however, the entire amount of Rs.8,58,774/- is
withheld. No any triable issue is made out, therefore, no case of unconditional
leave to defend is made out. Hence, prayed for making the SJ absolute.
Whereas, Adv. Suryavanshi submitted that, the of Primrose Chrome P-31
supplied was sub-standard and defective which was used for painting 168
buses, however, on exposure to sun light within few weeks the color changed.
The 168 buses were repainted by defendant No.1 which caused loss of
Rs.20,00,000/-. The plaintiff were informed by e-mail, but, no any action
taken. Already Spl. Civil Suit. No.01/2019 is filed for damages. The
defendants have made out triable issues, hence, are entitled for un-
conditional leave to defend.
6. The leadings of the parties goes to show that the there is no
dispute about supply of goods and raising of invoices. The defendants have
categorically claimed that Primrose Chrome P-31 Supplied was sub-standard
and defective which was used for painting of 168 buses, however, on exposure
to sun light the color changed. The emails sent between the parties shows that
defendants have raised the issue about the substandard and defective
Primrose Chrome P-31. Further the documents relied by the defendants Sure
number of traders Had issued debit notes Raising complaint about repainting
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of vehicles. Thus from the exchange of emails and the debit nodes as well as
the pleadings it goes to show that there was an issue regarding Primrose
Chrome P-31 supplied by plaintiff to defendants. Whether Really the primrose
chrome P31 was substandard and defective is matter of evidence.
7. Apart from it defendants have also raised issue of non-joinder of
necessary parties and jurisdiction of the Court. Thus, at this juncture, I’m of
the view that the defendants have made out triable issues which will require
evidence of expert. On the point of withholding the entire amount for supply
of Primrose Chrome P-31 which was only of Rs.68,400/-, Adv. Suryavanshi
submitted that the defendants incurred more than 20 lakhs for repainting the
168 buses for which they have filed separate suit and the amount is more than
the disputed claim. I do agree with the submission advanced by Adv.
Suryavanshi as already civil suit for recovery of the amount is filed by the
defendants against the plaintiff. Therefore, I am of the view that the
defendants are entitled for an unconditional leave to defend the suit.
8. Apart from it, the plaintiffs have not filed the original documents
alongwith the SJ. The Hon’ble Apex Court in Neebha Kapoor vs Jayantilal
Khandwala, AIR 2008 Supreme Court, 1117 in para.11:
For the purpose of obtaining a summary judgment in terms of
Order 37 of the Code, ordinarily the original documents must
be produced. Original documents are not available, appellant,
therefore, is obligated to prove the loss of documents. Only
because a suit has been entertained as a summary suit, the
same by itself may not be a ground for passing of a judgment
on mere asking. We have noticed the fact situation obtaining
herein. The High Court was of the opinion that it is a case
where unconditional leave should be granted. The question as
to whether the defence of the respondents is moonshine or not
was not a matter which required consideration of the High
Court as that stage. A decree could not have been granted on
the basis of even photostat copies of the documents.
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9. Therefore, this is an additional ground to grant an unconditional
leave to defend the suit. Hence, I am of the view that unconditional leave to
defend the suit is required to be given to the defendants. In the result, I
proceed to pass following order:
ORDER
1 The Summons for Judgment No.55 of 2018 is dismissed.
2 An unconditional leave to defend the suit is granted to the defendants.
3 The defendants to file their written statement within two months from
the date of this order.
4 The Summons for Judgment No.55 of 2018 is disposed off.
5 The parties to bear their own costs.
(N. B. Lavte)
Judge, (C.R.No.83)
Dt.: 24-07-2025 City Civil Court, Mazgaon,
MUMBAI MUMBAI
Dictated on : 24-07-2025
Transcribed on : 30-07-2025
checked on : 04-08-2025 (N. B. Lavte )
Signed on : 07-08-2025 Judge, (C.R.No.83)
City Civil Court, Mazgaon,
MUMBAI
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
07.08.2025 at 05.20 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Shri N. B. Lavte
(COURT ROOM NO.83)
Date of pronouncement of
judgment/order
24.07.2025
Judgment/order signed by P.O. on 07.08.2025
Judgment/order uploaded on 07.08.2025
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