Final Order 1

Order Details: Other
Pdf Text: 1 SJ No.119/19
MHCC010035392019
IN THE CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT NO. 119 OF 2019
IN
SUMMARY SUIT NO. 878 OF 2018
M/s. Boettcher India Pvt Ltd
Through its authorized signatory
Mr. Joel Santiago Lopes having
address at Gala No. 14 and 15,
Flora Hotel Compound, Village
Devdal Chinchoti Bhivandi Road,
Vasai East, thane 401503. … Plaintiff
VERSUS
M/s. Prism Art Printers
A Company incorporated under
Indian Companies Act, 1956 having
its registered office, 151-A 1, Shah
and Nahar Industrial Estate,
Lower Parel, Mumbai – 400 013. … Defendant.
Appearances:-
Advocate Pankaj Dubey and Associates for the plaintiff.
Advocates Pramod Donde & Roshani Thakkar i/b Juris Partners for the
defendant.
CORAM : HIS HONOUR AD-HOC JUDGE
Deepak L. Bhagwat
(C.R. NO. 28)
DATE : 23rd MARCH, 2021
O R D E R
1. This is summary suit for recovery of Rs.57,137/- with
pendente lite and future interest at the rate of 21% p.a.,
-- 1 of 7 --
2 SJ No.119/19
2. According to the plaintiff, it is manufacturer and supplier of
printing rollers and chemicals. The defendant company is associated
with the plaintiff company. The defendant purchased products such as
printing chemicals, roller and blanket from the plaintiff. The defendant
received the material as per its demand. In June, 2012, the plaintiff
came to know that the accountant had charged less Central Sales Tax
(CST) @ 2% instead of 12.5% in some bills. Therefore, two debit notes
dated 29.06.2012, were issued by the plaintiff and the same amounts
were added in the ledger book of the account of the defendant
maintained by the plaintiff. The plaintiff submitted debit note in due
time to the defendant. The defendant paid amount of Rs.15,750/- on
31.03.2018, against other pending bills but did not pay the debit note
amount. The defendant is under obligation to pay Rs.57,137/- to the
plaintiff towards the debit notes. However, the defendant failed to pay
the amount. The plaintiff vide legal notice dated 29.03.2018, also
called upon the defendant to make the payment of the said amount.
However, the defendant failed to make the same payment. Therefore,
the plaintiff claimed decree for recovery of Rs.57,137/- with pendente
lite and future interest @ 21% p.a..
3. Upon appearance of the defendant, the plaintiff also filed
summons for judgment. The summons for judgment was served upon
the defendant. The defendant filed reply cum request for leave to
defend. The defendant contended that the plaintiff did not annex
documentary proof in respect of the material which were received by
the defendant and any invoices for which debit notes were issued. The
debit notes do not bear signatures of the plaintiff and the defendant.
-- 2 of 7 --
3 SJ No.119/19
The defendant is a partnership firm however, the plaintiff has shown the
defendant as a company and therefore, the suit is not maintainable.
Mere debit note does not disclose liability of the defendant. Therefore,
the defendant requested to reject summons for judgment and grant
unconditional leave to defend. The defendant also contended that in
2016 though it purchased printing chemicals, roller and blanket
through the plaintiff from other dealers, the material was sub-standard
and it has been returned to the dealer and because of it, defendant lost
its reputation in the market.
4. Heard Ld. Advocate on behalf of the plaintiff on the
summons for judgment. Neither defendant nor its Advocate appeared
to advance any arguments. Therefore, the matter proceeded without
arguments on behalf of the defendant.
5. Considering the material on record including the reply of
the defendant and submissions made on behalf of the plaintiff, 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 ?
Negative.
2. Whether the defendant is entitled to
leave to defend ? If yes, conditional or
unconditional ?
Yes, the defendant is
entitled to
unconditional leave to
defend the suit.
3. What order ? As per final order
-- 3 of 7 --
4 SJ No.119/19
REASONS
AS TO POINTS NO.1 to 3:-
6. The Ld. Advocate on behalf of the plaintiff argued that the
copies of the documents annexed with the plaint at Exh.A and B prove
the liability of the defendant. The defendant admitted the purchase of
material. Therefore, according to Ld. Advocate of the plaintiff, the case
of the plaintiff is proved and the defendant is liable to pay the amount.
The defendant has no defence. Therefore, he requested to allow the
summons for judgment.
7. The claim of the plaintiff is based on two debit notes dated
29.06.2012. It is apparent that those debit notes are claimed to be in
respect of the transactions prior to 2012. However, the suit has been
filed on 7th June, 2018. Thus, question of limitation will definitely arise
in the suit. Though the plaintiff in para 3 of the plaint mentioned that
the defendant paid amount of Rs. 15,750/- on 31.03.2018; in the same
paragraph it is mentioned that said payment is against other pending
bills and not in respect of the debit notes. That apart said payment of
Rs.15,750/- is not within the prescribed period of limitation from the
dates of the debit notes. In these circumstances, the payment of
Rs.15,750/- is incapable to extend the period of limitation as per Sec.19
of the Limitation Act. Thus, the issue of limitation is definitely an
essential aspect, which needs to be considered. In the notice dated
29.03.2018, issued by the plaintiff to the defendant, it is mentioned in
para 3 that as per running account of the plaintiff sum of Rs.57,137/- is
outstanding. Again, whether transactions between the plaintiff and
defendant were running and continuous transactions is a question of
-- 4 of 7 --
5 SJ No.119/19
fact, which can be determined only after leading evidence.
8. It may also be noted that, the debit notes admittedly do not
bear signatures of the defendant. The copy of ledger book maintained
by the plaintiff also does not bear signature of the defendant so as to
say that the defendant confirmed the outstanding amount payable by
him. Considering same circumstances and particularly when the
defendant has specifically denied liability towards the debit notes and
that the invoice regarding which debit notes issued are not produced on
record; at this stage, liability on the defendant cannot be imposed
without inquiring into the matter in the form of regular trial. No doubt,
the defendant in reply in para 7(h) admitted that it purchased printing
chemicals, roller and blanket from the plaintiff as per the tax invoice
attached to the reply. However, on perusal of the tax invoice Exh.A
attached to the reply, it is clear that the same transaction is of August,
2016, which has no connection with the claim of the plaintiff. In this
background, the contention of the defendant that it purchased goods in
2016 from the plaintiff cannot be treated as admission of liability of the
defendant in respect of the debit notes of 2012.
9. The defendant has also come with the clear contention
that, it is a partnership firm, whereas the suit has been instituted
against the defendant showing it a company registered under the Indian
Companies Act. Thus, it is clear that the defendant has been wrongly
described as a company and not the partnership firm in the plaint. This
defence of the defendant also needs to be taken into consideration so as
to grant him leave to defend.
-- 5 of 7 --
6 SJ No.119/19
10. In view of the above discussion, that the debit notes at this
stage are insufficient to prove the liability of the defendant without
leading evidence, there is issue of limitation, also there is issue
regarding maintainability of the suit as it has been filed showing the
defendant as a company and not the partnership firm. In this back
ground, the defendant is definitely entitled to unconditional leave to
defend. The plaintiff is not entitled to the summons for judgment.
Hence, point No.1 is answered in negative, whereas point No.2 is
answered as that the defendant is entitled to unconditional leave to
defend the suit. In answer to point No.3 order as follows is passed :-
ORDER
1. The summons for judgment is rejected.
2. Unconditional Leave to defend is granted to the defendant.
3. The defendant shall file written statement on or before
08.06.2021.
4. The Registrar shall cause conversion of the suit to appropriate
category and shall cause assignment of the same to appropriate court by
completing requisite process.
5. The summons for judgment is disposed.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date: 23/03/2021 City Civil Court, Gr. Mumbai
Dictated on : 23.03.2021
Transcribed on : 25.03.2021
Date of sign : 30.03.2021
-- 6 of 7 --
7 SJ No.119/19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 30.03.2021 4.40 p.m.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri.D.L.Bhagwat
(C.R.NO.28)
Date of Pronouncement of
JUDGMENT /ORDER
23.03.2021
JUDGMENT /ORDER signed by P.O. on 30.03.2021
JUDGMENT /ORDER uploaded on 30.03.2021
-- 7 of 7 --