Order 1

Order Details: Other
Pdf Text: 1 SJ No.136/2019 in Summary Suit No.552/2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT No.136 of 2019
(CNR NO. MH CC010046652019)
In
SUMMARY SUIT NO. 552 OF 2018
Ashok Vissanji
Partner : Panel Source LLP
Age: 59 years, Occupation :Business,
Having its sales office at :
15, unique premises, Bombay Dying Compound,
V.S.Marg, Prabhadevi, Mumbai400 025 ...Plaintiff
V/s.
Pawan Jain
Indian Inhabitant, Occupation : Business
Near Jaipur Glass Factory,
Tonk Road, Jaipur302 018 ...Defendant
Appearance:
Mr. Rajendra Yadav, Advocate for Plaintiff.
Mr. Santosh Thakur, Advocate for Defendant.
CORAM : HER HONOUR JUDGE
JAYSHRI R. PULATE
Adhoc Judge
City Civil Court,
Gr. Bombay
(C.R.No.40)
DATE : 30th September, 2019.
ORDER
1. Plaintiff has taken out this Summons for Judgment for
recovery of Rs.67,307.00 / with interest.
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2. It is the contention of plaintiff that he is partner of Panel
Source LLP which is limited liability partnership firm. The defendant has
a retail shop and he used to purchase wholesale stock of wooden ply and
related items from the plaintiff for his business. The defendant is
residing at Jaipur, before placing any order always after making inquiry
about the rates through Telephone and thereafter he used to confirm his
orders to the plaintiff. Plaintiff always informed to the defendant about
dispatch of material through transporter's name, date and invoices
amount.
3. According to plaintiff, defendant had placed order for 5 M M
decorative plywood 115 pcs and 5 M M decorative plywood 103 pcs on
16.12.2016 which was dispatched through Rajhans Roadlines Pvt.
Limited. The plaintiff immediately dispatched goods alongwith Invoice
No.273/1617 having the bill amount of Rs. 3,13,518/. The defendant
has received the said goods and accepted the same. Since the defendant
did not pay for the goods for about two months, therefore plaintiff gave
many reminders and accordingly defendant released partial payment of
Rs.2,56,478/ on 22.02.2017.
4. It is further contended by the plaintiff that there is balance
of Rs.57,040/ which is pending against defendant. Inspite of sending
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repeated reminders, the defendant failed to make the payment.
Therefore, notice dated 29.01.2018 was issued by the plaintiff through
his Advocate to defendant with demand to pay Rs.67,307/ towards
principal amount and interest @ 18% p.a.. In reply to the said notice,
the defendant strongly objected the rate of goods supplied to him and
refused to pay the remaining amount. It is further submitted that
retaining part payment of the goods and relying on the rates of other
Companies, plaintiff is not concern with the same.
5. The defendant has tendered affidavit in reply and admitted
that he has purchased goods from the plaintiff and has made partial
payment of Rs. 2,56,478/. According to defendant, vide reply dated
19.02.2018 to the plaintiff, grievance was lodged about charging
exorbitant rate for the plywood which was purchased @ 387.50 per sq
mtr equal to Rs.35.50 per sq feet and also called upon the plaintiff to
take back the material as 80 plywood were still unsold. It is admitted by
the defendant that sale transaction between him and plaintiff was
completed and delivery was made by the plaintiff under the trust on the
basis of representation made by the defendant. The latest invoice of
Greenply Industries Ltd. dated 08.03.2019 issued in the name of
defendant is relied by the defendant which shows that the defendant had
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purchased same Teak ply from that Company @ 462.87 per sq. mtr equal
to Rs.43/ per sq. feet on 4 MM thickness for Jaipur. For all these
reasons, it is prayed by the defendant that unconditional leave to defend
may kindly be granted to him.
6. I have heard both learned advocates at length. Learned
Advocate for plaintiff strenuously submitted that it is not disputed by the
defendant that he received the goods as raised in the invoice. No
substantial defence has been made out on behalf of defendant which
entitled him for unconditional leave to defend the suit.
On the other hand, it is submitted by the learned Advocate
for the defendant that recitals of para Nos.23 to 25 of the plaint reflects
that the suit is not filed within the prescribed period of limitation. The
dispute between the parties is as regards the rate of goods charged by the
plaintiff. The plaintiff is claiming the higher price which was not agreed
between the parties. Therefore, it is prayed that unconditional leave to
defend may kindly be granted to defendant.
7. Considering the rival contention of both parties, it is not
disputed that the defendant has received the goods as per the invoice
dated 16.12.2016, it is the contention of defendant that exorbitant rate
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of goods has been charged by the plaintiff which was not agreed between
them. The purchase order is not filed on record which shows that the
agreed rate of goods between plaintiff and defendant. In this respect on
perusal of reply given by the defendant and plaintiff's notice dated
29.01.2018, it specifically shows that the defendant has not disputed
that he paid sum of Rs. 2,56,478/ at the agreed rate on 23.02.2017.
According to defendant, the plaintiff was to immediately informed after
receiving the inflated invoice to lift his goods back but he stated to keep
the goods and pay the agreed amount for which the sum of Rs.2,56,478/
was paid. However, in support of his contention, defendant has not
placed on record any written intimation, if any, that was sent by him to
plaintiff that the goods were not supplied as per the agreed rate. If at all
the defendant was having any grievance about the agreed rate of goods,
it was his duty to intimate the same to the plaintiff in writing or he was
having remedy to return/reject the goods which is not availed by him.
Therefore, at this stage, the defence as to the agreed rate of goods as
claimed by defendant does not appear to be plausible.
8. The defendant has relied on the copy of invoice dated
08.03.2019, issued by the Greenply Industries Ltd. in the name of
defendant for purchase of same Teak Ply from @ Rs.462.87 per sq. mtr
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equal to Rs.43/ per Sq. Feet of 4 mm thickness. In my opinion, the
issue in the present suit is between the plaintiff and defendant and
therefore charges claimed by third party i.e. Greenply Inustries Ltd. can
not be taken into consideration.
9. As regards the issue of limitation which has been mentioned
in para nos.23 to 25 of the plaint, it reveals in specific terms that suit is
filed within the limitation period. Even if the date of tax invoice i.e.
16.12.2016 is considered, the suit filed on 19.03.2018 is well within the
limitation. Therefore, prima facie there is no substance in the contention
of defendant that as per the pleading of plaintiff suit is barred by
limitation.
10. In view of foregoing discussion, when the defendant has
admitted the receipt of goods and accepted the same and also made
partial payment of receipt of the said goods, the defence raised by him do
not appear to be substantial. However, in order to decide the suit on its
own merit, I am of the opinion that defendant may be granted
conditional leave to defend the suit. Accordingly, I pass following order.
ORDER
1. Conditional leave to defend the suit is granted to defendant
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on depositing amount of Rs.50,000/ in the Court within four weeks from
the date of the order.
2. On depositing the aforesaid amount in the Court, the
Registrar (Civil) is directed to deposit said amount in any Nationalized
Bank initially for the period of one year and continue to renew the same
for the like period till further order.
3. On depositing amount of Rs.50,000/ as directed above, the
defendant is directed to file his written statement within further period
of two weeks.
4. Summons for Judgment No.136/2019, is disposed off
accordingly.
(Jayshri R. Pulate)
Adhoc Judge
City Civil Court,
Gr. Bombay
Date : 30/09/2019
Dictated on : 30.09.2019
Transcribed on : 01.10.2019
Signed on : 03.10.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
04.10.2019 11.00 a.m. Ms. Ujwala J. Bhagat
Name of the Judge H.H.J. Jayshri R. Pulate.
Adhoc Judge.
(Court Room No.40)
Date of pronouncement of Order 30.09.2019
Order signed by P.O. on 03.10.2019
Order uploaded on 04.10.2019
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