Final Order 1

Order Details: Other
Pdf Text: MHCC010030782020 Presented on 12/03/2020
Registered on 12/03/2020
Decided on 03/05/2025
Duration 05Y: 01M:22D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 52 OF 2020
IN
SUMMARY SUIT NO. 543 OF 2018
Mr. Sashank Umesh Shah ]
Partner, Aged 25 years, ]
M/s. Shree Vinayak Trading Company ]
office at Rajiv Industrial Co.op. Soc. ]
Ltd. Unit at Gr. Floor, T. J. Road, ]
Sewree (West), Mumbai - 400015. ]...Plaintiff
VERSUS
1. Brijesh Mahendra Bhai Shah ]
Age 60 years, Pro. of Shah Brothers ]
2. M/s. Shah Brothers ]
Both having office at Shop No.1, ]
Om Dutt Bldg., Near Khambadevi ]
Mandir, 90 feet Road, Sion(West), ]
Mumbai. ]...Defendants
Appearance :-
Ld. Advocate V. B. Ghorpade for plaintiff.
Ld. Advocate P. R. Chaurasia for defendants,
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO.: 81
DATE : 03/05/2025.
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ORDER
( Dictated and pronounced in open Court)
01] The plaintiff has filed this summons for judgment against
defendants on 20/12/2019. Defendants have filed affidavit in reply to
the summons for judgment and resisted it and prayed for
unconditional leave to defend the suit.
02] As per plaintiff, he is carrying on business in the name and
style as M/s. Shree Vinayak Trading Company at address mentioned in
title cause. Defendants were in need of goods in the form of BOPP
Films having quantity of 526.51 kg. and 385.15 kgs. at the rate of
121.00 per kilograms respectively on 01/02/2017 and 04/02/2017.
Accordingly, plaintiff delivered said goods to defendants vide delivery
challan No. 82 and 85 on 01/02/2017 and 04/02/2017 respectively.
Accordingly, plaintiff raised invoices bearing No. STP 1617082 for sum
of Rs. 67,530/- and STP 1617085 for sum of Rs. 49,400/- including
VAT at 6% on said invoices. Defendants received said goods, therefore
defendants issued cheques bearing No. 844058 dated 08/03/2017 for
amount of Rs.67,530 and cheque bearing No.844057 dated
01/03/2017 for amount of Rs. 49,400/- drawn on Barclays Bank,
Worli, Mumbai. Plaintiff deposited said cheques in his Bank i.e. Punjab
National Bank, Dadar Branch and same were dishonoured on
21/03/2017 for reasons “Accounts closed”. Therefore, plaintiff sent
demand notice dated 16/11/2017 and called upon to make the
payment of Rs.1,31,702/- including interest. However, said notice
returned with remark, “Refused”. It is further submitted that it is the
only defence of the defendants that said cheques were issued a
security. Further, it is defence that there is no cause of action against
defendants, this Court has no jurisdiction. It is further submitted that
plaintiff has prepared bogus stamps and delivery challan. However, it is
also contention of defendants that they had asked for inspection of
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documents however, plaintiff has not given the inspection. It is further
submitted that defendants have no bonafide and substantial defence
nor raised any triable issues. Therefore, defendants are not entitled for
leave to defend the suit. Hence, summons for judgment may be
allowed.
03] On the other hand, it is submitted on behalf of defendants
that they have no transaction with plaintiff. Further, the plaintiff has
prepared bogus stamps and fabricated delivery challan and filed suit
on the basis of said documents. Therefore, there is no cause of action
against defendants. Even, suit is for misjoinder of necessary party.
Further, this Court has no jurisdiction to try and decide the suit.
Plaintiff has failed to produce documents in support of his claim.
Defendants have not received any notice. On the contrary, the counsel
of defendant issued notice dated 07/06/2019 to plaintiff’s advocate
and called upon him to give the inspection of all documents on which
plaintiff is relying. The plaintiff has not given any explanation of the
said letter. The defendants has no business transaction with plaintiff.
They have business transaction with M/s. Mahalaxmi Packing Works
and its proprietors are Kapil Kapasi and Bharat Kapasi. The defendants
had purchased goods from said M/s. Mahalaxmi Packing Works and
given blank security cheques to its proprietor. Further, they have paid
all payment of Mr. Kapil Kapasi and Bharat Kapasi. Further, Mr. Kapil
Kapasi and Bharat Kapasi are absconding as complaint is filed against
them with respect of offense of fraud, cheating, Criminal
misappropriation, mischief and forgery. The said Mahalaxmi Packing
Works is in the custody of plaintiff as Mr. Kapasi brothers are close
relative of plaintiff. Therefore, plaintiff had obtained said cheques
which were given as security and misused it. There is no business
transaction with plaintiff therefore, question of issuing cheques to
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them does not arise. It is further submitted that defendants had not
used any rubber plaintiff and it is the plaintiff who has prepared falsely
rubber stamp. Therefore, defendants made complaint against plaintiff
for preparing bogus stamps to Dharavi Police Station. It is further
submitted that thus defendants have raised substantial defence and
triable issues. Therefore, they are entitled for unconditional leave to
defend the suit. The said issues needs to be adjudicated. Defendants
relied on ratio laid down in Neebha Kapoor Vs. Jayantilal Khadwala,
AIR 2008 SC 1117, Rajesh Laxmichand Udeshi @ Bhatia vs. Pravin
Hiralal Shah, 2014 (1) ALL MR 784, Rithika Enterprises & Anr. Vs.
Garment Packers and Ors., Commercial Summary Suit No.225/2020
in Interim Application No.26655/2022 of Hon’ble Bombay High Court
and Sacha Finance and Developers Co. Vs. Jayant Bhavanji Soni (since
deceased) Through Legal Heirs & Ors., Commercial Summary Suit
10938/2021. Hence, summons for judgment may be dismissed.
04] Perused summons for judgment, reply and record of the
case. Heard both parties. I have gone through case laws cited on behalf
of defendants. As per plaintiff, he had supplied goods to defendants to
the tune of Rs. 1,16,830/-. Plaintiff to support its contention has filed
original delivery challan vide List Exh. 4/2. Further, plaintiff also filed
original invoices vide List Exh. 4/3 and 4/4 to support its contention
that said invoices were raised against defendants. Further, it is
contention of plaintiff that defendants to pay the said outstanding
amount issued two cheques which are filed on record vide List
Exh. 4/5 and 4/6. However, both cheques were dishonoured and
plaintiff has filed Memo of dishonour vide List Exh. 4/7 and 4/8.
Therefore, plaintiff issued demand notice dated 16/11/2017 which is
returned unserved and to support said contention plaintiff has filed
office copy of said notice and acknowledgment receipt on record vide
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List Exh. 4/9 and 4/10. It is pertinent to note that plaintiff has filed all
original and office copies of documents except acknowledgment
receipt. Therefore, ratio laid down in Neebha Kapoor Vs. Jayantilal
Khadwala's case is not applicable to the facts of present case.
05] The defence of the defendants is that he had never
business transaction with plaintiff. On the contrary, it is their
contention that defendants were having dealings with M/s. Mahalaxmi
Packing Works. It is pertinent to note that except bare contention of
defendants there is nothing on record to show that they had purchased
goods from M/s. Mahalaxmi Packing Works and issued four blank
cheques as a security. Defendants have not filed any documents on
record. Though, the defendants have taken defence that said blank
cheques were issued to Mr. Kapil Kapasi and Bharat Kapasi is misused
by plaintiff, as plaintiff and said Mr. Kapil Kapasi and Mr. Bharat Kapasi
are relatives. However, except bare contention defendants have not
filed any documentary evidence or any other evidence to support their
contentions.
06] It is also defence of defendants that suit is bad for
misjoinder of necessary party. However, it is not specifically pleaded
that how suit is bad for misjoinder. It is also defence of defendants that
there is no cause of action against defendants therefore, there is no
jurisdiction to decide this suit. The plaintiff has specifically pleaded
that he had supplied goods vide delivery challans and raised invoices.
It is pertinent to note that delivery challans bears seal and signature of
defendant. However, invoices does not bear seal and signatures of
defendants. Thus, plaintiff has demonstrated goods were delivered to
defendants. It is the defence of defendants that they never used rubber
stamp and it is falsely prepared by plaintiff and misused it. Though, it
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is contention of defendants that blank cheques issued to Mr. Kapil
Kapasi and Mr. Bharat Kapasi as a security, they had given said cheques
to plaintiff and plaintiff has misused it. Thus, it is the defence of
defendants that plaintiff has misused said cheques as it were not given
to the plaintiff. On the contrary, it were given to Mr. Kapasi proprietor
of M/s. Mahalaxmi Packing Works as a security. However, except bare
contention there is nothing on record to show that defendant had
issued blank cheques to Mr. Kapasi. It is contention of defendants that
he had filed criminal complaint against plaintiff at Dharavi Police
Station. Defendants have filed photocopy of said complaint on
27/02/2025 vide list. On perusing said list, it appears that it is not
office copy but a photocopy therefore, it cannot be considered at this
stage.
07] It is also defence of defendants that he had asked for
inspection of documents vide Letter dated 07/06/2019 issued to
counsel for plaintiff by his advocate. However, plaintiff has not given
inspection of entire documents. On the contrary, it appears that
plaintiff had given inspection of material documents. The defendants
tried to raise triable issues and substantial defence however, as
discussed above though defendants have raised triable issues however,
they have not raised substantial defence. It is settled law that issuance
of cheque, it means cheque was issued towards discharge of legal
liability. The plaintiff has filed suit on the basis of dishnoured cheques
and cause of action has arose in the jurisdiction of this Court therefore,
this Court has jurisdiction to try the suit. As defendants have raised
triable issue that they used to deal with M/s. Mahalaxmi Packing
Works and not the plaintiff. Therefore, it is necessary to give them an
opportunity to decide the said issue as it needs adjudication.
Therefore, though defendants are entitled for leave to defend the suit
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however, they are not entitled for unconditional leave to defend the
suit. Thus, defendants are entitled for leave to defend the suit subject
to depositing principal amount. Therefore, the ratio laid down in case
laws cited supra on behalf of defendants are not helpful to the
defendants at this stage. Hence, I proceed to pass following order.
ORDER
1) Summons for Judgment No.52/2020 in Summary Suit
No. 543/2020 is disposed off as follows:
(a) Leave to defend the suit is granted to the defendants subject
to condition that they shall deposit principal amount within 60
days from the date of this order.
(b) The defendants will be at liberty to file their written
statement on record within 30 days after depositing amount.
2) After depositing amount by the defendants, it be deposited in
fixed deposits in any Nationalized bank as per law till further
orders.
3) No order to costs.
4) Summons for Judgment No.52/2020 is disposed off accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date: 03/05/2025 Court Room No.81
Dictated on : 03/05/2025
Corrected & signed on : 07/05/2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
08/05/2025 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 03/05/2025
JUDGMENT/ORDER signed by P. O. on 07/05/2025
JUDGMENT/ORDER uploaded on 08/05/2025
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