Final Order 1

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MHCC010030372020 Presented on : 11-03-2020
Registered on : 11-03-2020
Decided on : 15-01-2022
Duration : Y M D
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BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
SUMMONS FOR JUDGMENT NO.51 OF 2020
IN
COMMERCIAL SUIT NO.423 OF 2021
(SUMMARY SUIT NO.255 OF 2019)
M/s. Gopani Metal Industries Pvt. Ltd.
having their office at 37, Baroda Street,
Carnac Bunder, Mumbai 400009.
Through Adhikrao Bhosale ..Plaintiff
Versus
1.M/s. Jinen Corporation
having its business address at A/29G,
Malad Industrial Units, CHS Ltd,
Ramchandra Line, Kachpada, Malad (W),
Mumbai 400064.
2. Mr.Ajay Doshi
Aged adult, Indian Inhabitant,
having its business address at A/29G,
Malad Industrial Units, CHS Ltd,
Ramchandra Line, Kachpada, Malad West,
Mumbai 400064. ..Defendants
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______________________________________________________
Ld. Advocate Yuvraj Patil with Adv. Mukesh Dongarge for
plaintiff.
Ld. Advocate Bharat Kothari for defendants.
______________________________________________________
ORAL ORDER
( 15 th day of January, 2022 )
Summons for Judgment is taken out for decree of
an amount of Rs.19,13,713/ alongwith future interest.
Briefly stated, plaintiff's case is as under:
2. Plaintiff is a private limited company. Plaintiff does
the business of supply of iron and steel goods. Defendant No.1
is a firm. Defendant No.2Ajay Doshi is incharge of the said
firm. In pursuance to the purchase orders placed by defendants
by email, plaintiff sold and supplied goods to defendants. All
the goods were transported by transport arranged by plaintiff.
Goods were duly received by defendants and their
representatives. Defendants received the goods and
corresponding invoices without any demur or protest as regard
to quality or quantity of goods. Plaintiff supplied goods of
worth Rs.15,52,499/. Plaintiff has pleaded in detail about
invoices raised against defendants. Defendants confirmed that
balance amount of Rs.15,52,499/ is due against them.
However, defendants failed to make the payment of the
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outstanding amount. Plaintiff sent legal notice dated
20/06/2018 claiming an amount of Rs.19,13,713/. Inspite of
service of notice, defendants failed to make the payment.
Defendants have no defence. They have caused their
appearance to delay passing of the decree. By making all these
submissions, plaintiff prayed to make the Summons for
Judgment absolute.
Defendants' reply
3. Defendants by filing their reply affidavit strongly
resisted the Summons for Judgment taken out by plaintiff.
(a) It is submitted that defendants have not received
the goods mentioned in the invoices. Plaintiff approached
defendants through one Sanjay Maniyar on 21.07.2016.
Defendants purchased goods of worth Rs.2,21,204/ and
accordingly made the payment. Thereafter, defendants did not
enter into any transaction with plaintiff.
(b) Defendants have separate Purchase Department at
Umargaon, Gujrat and Accounts Department at Malad, Mumbai.
Sanjay Maniyar used to visit defendants' office. He has access
to defendants' Accounts department. By misusing his access to
defendants' Accounts department, Sanjay Maniyar submitted
alleged invoices of plaintiff company to Accounts department.
Accounts department accepted those invoices in good faith and
due to oversight, in regular course of business, submitted those
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invoices before concerned tax authorities for claiming the
refund. Defendants never acknowledged and confirmed the
Account statements as alleged in the plaint. Defendants realized
the mistake after receipt of legal notice by plaintiff and
simultaneous confirmation from it's purchase department about
non receipt of goods under the alleged invoices. Thereafter,
defendants reversed the purchase entries in the ledger account
of plaintiff.
(c) Plaintiff claims that defendants placed purchase
orders by email, however, those purchase orders are not placed
on record. Invoices are not acknowledged by defendants. The
transport receipts are also not acknowledged by defendants.
One of the transport receipt shows that goods were delivered to
M/s. Arihant Enterprises. Thus, it can be inferred that goods
were not delivered to defendants. Plaintiff is taking undue
advantage of refund claimed by defendants on the basis of
invoices issued by it.
(d) After receipt of legal notice, defendant No.2 met
with director of plaintiff's company and tried to convince him
about non receipt of goods. However, plaintiff claimed that said
Sanjay Maniyar has taken goods and delivered it to defendants.
Alleged transaction was done through Sanjay Maniyar. He is
necessary party to the suit. Therefore, suit is bad for non joinder
of necessary party. Defendants have good case on merits.
Plaintiff has to prove that goods under the invoices were
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delivered to defendants. Defendants have raised triable issues,
therefore, they are entitled for unconditional leave to defend
the suit. By making all these submissions, defendants prayed to
dismiss the Summons for Judgment.
Plaintiff's oral submissions
4. Ld. Counsel for plaintiff submits that goods under
the invoices, mentioned in the plaint, were delivered to
defendants. Defendants have claimed refund of GST by using
the invoices served by plaintiff. Defendants admit that they
have received the notice dated 20/06/2018, but, they have not
replied said notice. It means that they have not disputed
contents in the notice. They have no defence. By making these
submissions, plaintiff prayed for passing judgment forthwith.
Defendants' oral submissions
5. Ld. Counsel for defendants made following
submissions:
(a) It is submitted that defendants are coming with the
specific case that they have not received the goods alongwith
alleged invoices.
(b) Plaintiff claims that defendants have placed the
purchase orders by email, however, plaintiff has not filed on
record purchase orders alleged to be placed by defendants.
(c) Plaintiff has filed on record copies of the invoices
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alongwith plaint. However, those invoices are neither signed by
plaintiff nor by defendants.
(d) Plaintiff has filed on record transport receipts.
Those transport receipts are not legible. One of the transport
receipt shows that goods were delivered to one M/s. Arihant
Enterprises, Virar.
(e) Plaintiff claims that defendants have acknowledged
the outstanding amount. Plaintiff has filed on record ledger
account maintained by it, however, said statement is not signed
by defendants.
(f) Defendants are coming with the specific case that
one Sanjay Maniyar has given invoices to Accounts department
and Accounts department in good faith accepted those invoices.
In the regular course of business, Accounts department claimed
the refund of tax. Sanjay Maniyar submitted the invoices by
taking undue advantage of his access to defendants' Accounts
department. Sanjay Maniyar is necessary party to the suit. But,
he is not impleaded as party to the suit, therefore, suit is bad for
non joinder of necessary party.
(g) Defendants have raised issue regarding non receipt
of goods which requires trial. Therefore, they are entitled for
unconditional leave to defend the suit.
6. Considered the submissions advanced on behalf of
both sides. In order to substantiate the claim, plaintiff relied
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upon copies of the invoices filed alongwith plaint. Defendants
submit that all these copies of invoices do not bear signatures of
defendants acknowledging receipt of those invoices.
7. Plaintiff has filed on record two delivery chalans.
But, both these delivery chalans are not legible. In one of the
delivery chalan, in receiver's column, there is stamp of M/s.
Arihant Enterprises, Virar. From the documents filed alongwith
plaint, prima facie, it is difficult to infer that goods mentioned
in the invoices were delivered to defendants. However, while
deciding present application, Court has to see whether the
defence raises a real, honest and bonafide dispute. Here,
defendants are claiming that one Sanjay Maniyar delivered
them invoices. Thus, defendants are not disputing receipt of
invoices mentioned in the plaint. Once defendants accept
receipt of invoices, their contention that invoices filed on record
are not signed by them would not be relevant.
8. Defendants claimed that they have not received the
goods alongwith invoices. However, in reply affidavit, it is
contended that defendants have claimed the refund of tax on
the basis of those invoices. The refund of tax under the invoices
cannot be claimed unless the party claiming so receives the
goods under the invoices. Defendants have claimed the refund
of tax on the ground that they have received the goods under
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the invoices.
9. It is pertinent to note that defendants have
maintained plaintiff's ledger account and as on 01/04/2019, an
amount of Rs.15,52,503/ was outstanding against defendants.
Defendants claimed that after receipt of notice dated
20/06/2018, they realized that they have not received the
goods under the invoices. Thereafter, they have verified the
stock and after verification they have reversed the entries in
ledger account. However, the copy of the ledger account filed
alongwith leave to defend application shows that entries
regarding reversal of the amounts mentioned in the invoices
were taken on 15/12/2019. The documents filed alongwith
plaint shows that defendant no.2 received plaintiff's legal notice
on 21/06/2018. Thus, on 21/06/2018, defendants came to
know about plaintiff's claim, but, they have not replied
plaintiff's notice. They have not reversed the entries in their
ledger account immediately after receipt of notice. There is also
no material on record to show that they have taken steps for
depositing the refund amount to the concerned authorities.
Considering all these aspects, it cannot be said that defendants
have raised honest & bonafide dispute regarding nonreceipt of
goods and therefore, they are not entitled for unconditional
leave to defend the suit. However, taking into consideration,
peculiar facts of the case, this Court would be well justified in
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granting conditional leave to defend the suit on defendants'
depositing an amount of Rs.8,00,000/ which would be around
50% of the principal amount within 12 weeks from today. In
the result, following order :
ORDER
1. Defendants shall deposit a sum of Rs.8,00,000/ (Rs. Eight
Lacs only) in Court within a period of 12 weeks from today. If
this condition is compiled with, defendants are granted leave to
defend the suit and they shall file Written Statement within a
period of 30 days from the date of deposit.
2. If aforesaid condition of the deposit is not followed by
defendants within stipulated time, plaintiff shall be at liberty to
apply for exparte decree against defendants.
3. There shall be no order as to costs.
4. S/J No. 51/2020 is disposed of accordingly.
15/01/2022 SUNIL U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 15/01/2022
Transcribed on : 17/01/2022
Signed on : 18/01/2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
18/01/22 at 3.00 pm
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order 15/01/22
Judgment and order signed by P.O. 18/01/22
Judgment/order uploaded on 18/01/22
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