Final Order 2

Order Details: Copy of Judgment
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SMHCC010039552020 Presented on : 03.09.2020
Registered on : 16.10.2020
Decided on : 18.10.2025
Duration : 05Y. 00M. 02D
Exhibit- :44
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON, BOMBAY
COMMERCIAL SUIT NO. 459 OF 2020
Shri. Nasim Ahmed Shaikh
Prop. of Nasim & Sons, Aged about 60
years, Occupation business Indian
Inhabitant, having its office at
Chhatrapati Shivaji Mahraj Market
Office No.4, 3rd Floor, Palton Road,
Mumbai- 400 001.
...Plaintiffs
VERSUS
Shibu Saha
Age__ Indian Adult J. A. & Company
Fish merchant and commission Agent
Shop No.21, New H.I.T. Fish Market,
Howrah 711 101. ...Defendant
M. A. Khan, ld. Advocate for plaintiff.
Apurva Kudalkar i/b Yogesh Devnani, ld. Advocate for defendant.
CORAM : H.H. JUDGE SHRI SANJIV PRABHAKAR PINGLE,
COURT ROOM NO.32,
ORDER
(Delivered on 18.10.2025.)
1. The present Suit is filed for recovery of Sum of
Rs.84,79,134/- alongwith future interest @ 16% P.A. from
November-2018 over principal amount of Rs.75,70,734/- till
realization of the said amount.
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2. In brief, it is the case of the plaintiff that he is
proprietary concern of Nasim and Sons having office at
Chhatrapati Shivaji Mahraj Market Office No.4, 3rd Floor, Palton
Road, Mumbai- 400 001 and dealing in the business of auction
of Fishes directly at Dock, as well as sale, supply and delivere
fish to the prospective fish merchants in different part of the
cities.
3. It is contended that defendant Shibu Saha is a fish
merchant as well as commission agent carrying his business
under the name and style ‘J & A’ Company shop No.21 New,
H.I.T. Fish Market, Howrah-7111 01 (West Bengal State).
4. It is the case of the plaintiff that defendant procure
fish and fishes from wholesale market and sale to the retailers in
market in August-2017. Defendant approached to the plaintiff
and placed orders for supply of fishes at Howrah.
5. Defendant purchased Fish in between August-2017 to
March-2018 by placing telephonic orders. Accordingly, plaintiff
sold, supplied and delivered fishes worth Rs.6,67,70,734/- (Vide
Exhibit-A). Out of the said amount, it is contended that
defendant paid Rs.5,92,00,000/- leaving behind Rs.75,70,734/-
(Exhibit-B). It is case of the plaintiff that in spite of repeated
several demands, defendant failed to make good, clearing the
outstanding dues. Hence, cause of action arose to file the
present Suit.
6. It is contended that as defendant avoided to make
payment, despite Advocates notice dated 15.07.2019. Vide reply
dated 31.07.2019 taken false stand. Hence, filed the present
Summary Suit under Order XXXVII Ruled 1 & 2 of the C.P.C.
based on admission of liability of the settled account duly
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confirmed by the defendant by way of acknowledgment. (In
cause title of the Suit, title of the Suit which was initially shown
as Summary Suit filed under Order XXXVII of C.P.C. 1908,
however appears the word 'Summary' has been erased by hand
and inserted word Commercial.
7. Vide Written Statement at Exhibit-05 dated
08.03.2021, the defendant resisted Claim of Suit and come up
with the stand that Suit is not maintainable for want for of
jurisdiction. Secondly, the questioned transaction did not take
place at Mumbai. Alleged transaction took place in 'Howrah'
(West Bengal). The goods being delivered at Howrah and
payment made at Howrah, therefore, application has been
moved under order VII Rule 11 of C.P.C. for rejection of the
plaint. However, fact is admitted that defendant approached to
plaintiff for supply of fish on the basis of ‘Principal to Principal’.
It is also admitted that the fish owners supplied fish in August-
2017 and March-2018 on the basis of telephonic orders placed
by the defendant. Thus, fish worth of Rs.6,67,70,730/- were
sold & supplied. Out of it only Rs.5,92,00,000/- were paid
leaving remaining due balance of Rs.75,70,734/- which was
remain unpaid. Hence, filed Suit for recovery of balance
amount.
(Further Judgment is deferred as the witness is
present in a witness box for facing further cross-examination in
Suit having age more than 15 years transferred from Hon’ble
High Court).
(Further Judgment is resumed on 07.10.2025).
8. As per roznama dated 09.03.2021, affidavit in reply
at Exhibit-05, has been adopted as 'written statement'.
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9. It is also case of the defendant that defendant paid
additional amount of Rs.1,41,00,000/- in between April-2018 to
October-2018 (At Exhibit-B). The said amount is duly reflected
and recorded in the bank statement produced by the plaintiff.
Therefore, defendant wants to relyupon the said bank
statements. Thus, as per the said bank statements at Exhibit-B,
the balance and due amount payable by the defendant to
plaintiff is Rs.56,78,730/- on 31.10.2018, is instead of
Rs.75,70,734/- as alleged by the plaintiff. Plaintiff have
suppressed material facts with malafide intention to extort more
money from the defendant by filing malicious suit.
10. It is the stand of the defendant, so far as, the amount
of Rs.56,78,730/- is concerned, plaintiff placed orders for
supply and delivery of fish from Howrah to Mumbai by
telephonic conversation. fish ordered were delivered to plaintiff
in 3 separate trenches given as under in formate as per
Exhibit-‘C’:-
Date Transport By No. of
Boxes/Kg
Amount
05.02.2018 Truck 11375 Kg 47.33.900/-
15.06.2018 Train 8 Boxes 2,28,150/-
15.06.2018 Train 26 Boxes 7,38,528/-
Total 57,00,578/-
11. The plaintiff duly acknowledged receipts of supplies
of aforesaid fishes vide Exhibit-D. Thus, the amount payable by
the defendant to plaintiff reduced to Rs.47,12,052/-. (Admission
by defendant)
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12. It is also contended that plaintiff supplied the goods
sent by truck with utmost irresponsible and illegal fashion (?)
On the other hand, as per general practice, defendant, when
supplied the fishes to the plaintiff as per order, were 'refused to
accept' without showing reasonable cause. After said rejection of
goods, by plaintiff i.e. fishes were required to return back.
However, the fishes did not returned back. Plaintiff caused loss
of Rs.47,33,900/-. Therefore, set off claimed of said due and
balance amount of Rs.47,12,052/-. It is contended that, the
present suit is false, frivolous, vexatious and malicious hence
prayed to dismiss with exemplary cost.
13. My ld. Predecessor framed 'issues' vide 'Exhibit-10'
dated 01.08.2022 as under__
SR.NO. POINTS FINDINGS
1 Does plaintiff prove that he has sold,
supplied and delivered fish to defendant
for total amount of Rs.6,67,70,734/-
between August 2017 to March 2018 ?
Partly Yes.
2 Does plaintiff prove that defendant is in
outstanding amount of Rs.75,70,734/-
as on 01.10.11.2018 ?
Partly Yes for
Rs.56,78,730/-
3 Whether this court has territorial
jurisdiction to try and decide this Suit? Yes.
4 Whether plaintiff is entitled for the
relief claimed?
Partly Yes.
5 What order and decree? Suit is Partly
decreed.
REASONS
14. Heard, at length the ld. Advocate Shri. M. A. Khan for
plaintiff and Shri. Yogesh Devani for defendant.
15. Both the parties have placed on record 'written
synopsis of arguments' plaintiff filed vide Exhibit-30 dated
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08.05.2024 before, my ld. Predecessor. and Ld. Advocate for
defendant filed 'written notes of arguments' vide Exhibit-42 on
07.08.2025 & rejoinder at Exhibit-43 dt. 17.09.2025 alongwith
following citation/ratios___
1. Sunkari Tirumala Rao and
Others Versus Penki Aruna Kumari
2025 SCC OnLine SC 125.
2.
Sopan Sukhdeo Sable and
Others Versus Assistant Charity
Commissioner And Others (2004) 3
Supreme Court Cases 137.
3. Bhagirath Prasad Singh
Versus Ram Narayan Rai & Anr.
(2010) SCC OnLine Pat 737: AIR 2010
Pat 189: (2013) 1 PLJR 738: (2011) 1
BBCJ 457.
4. Church of Christ Charitable
Trust and Educational Charitable
Society Versus Ponniamman
Educational Trust (2012) 8 Supreme
Court Cases 706.
5. Poppat Jamal & Sons Vs. N.
M. Venkatachalapathy @ Babulal and
another 2007 (1) CTC 251.
6. The Oriental Insurance Co.
Ltd., Namakkal Town, Namakkal Dist
Vs. Vijaya and others 2007 (1) CTC
254.
7. State of Assam Versus
Union of India and Others (2010) 10
Supreme Court Cases 408.
8. Secretary, Tamil Nadu
Public Service Commission Versus A.
B. Natarajan and others (2014) 14
Supreme Court Cases 95.
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9. Rajive Nandan Mourya
Versus State of Bihar and Others
(2014) 14 Supreme Court Cases 101.
10. Gurmit Singh Bhatiya
Versus Kiran Kant Robinson and
Others (2020) 13 Supreme Court
Cases 773.
11. Vidur Impex and Traders
Private Limited and others Versus Tosh
Apartments Private Limited and others
With Appeal No. 5917 of 2012*
Bhagwati Developers Private Limited
Versus Tosh Apartments Private
Limited and others Civil Appeals No.
5918 of 2012 with No. 5917 of 2012,
decide on August 21, 2012 (2012) 8
Supreme Court Cases 384.
(Further Judgment is deferred due to recess on 14.10.2025)
(Further Judgment is resumed after recess on 17.10.2025).
16. The ld. Advocate Shri. M. A. Khan for plaintiff
submitted that the present Suit is filed for recovery of of all
money towards the price of supply of Fishes by plaintiff to the
defendant to the tune of Rs.84,79,134/-.
17. In order to prove that the Suit claim, Plaintiff
examined PW-1 Nasim Ahmed Shaikh vide Exhibit -13 dated
03.10.2022 reiterated the plaint averments on oath. The sum
and substance is that plaintiff relied on the receipts issued by the
defendant whereby defendant admitted delivery of total fishes
amounting to Rs.1,08,67,351/- (Total Quantity of Box 3292) in
between period 27.10.2017 to 22.11.2017 and Rs.1,04,92,957/-
in between 22.11.2017 to 03.12.2017 (Total 2028 Quantity of
Box) and Rs.4,39,28,971/- for the period 28.12.2017 to
15.03.2018 (Total Quantity of Box 5450 Boxes).
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18. It is testified by PW-1 Nasim that for the period from
August-2017 to March-2018 plaintiff sold, supplied and
delivered fishes for total amount of Rs.6,67,70,734/- defendant
have accepted the delivery of fishes without any protest. The
defendant have accepted the delivery of said fishes without any
protest. So also, defendant have made payments time to time in
between November-2017 to November-2018 leaving balance of
Rs.75,70,734/-.
19. The demand was made several times for clearing the
said outstanding arrears. However, defendant avoided and
neglected to clear the outstanding amount payable on October-
2018. Therefore, legal notice dated 15.07.2019 through
advocate was issued calling upon to clear the outstanding dues
with interest @16% per annum. On 31.07.2019, defendant
choose the false reply through the Advocate denying payment
despite acknowledging the deliveries of fishes. Hence, cause of
action arose to file the suit.
20. I have gone carefully through the cross-examination
of PW-1 Nasim. Suggestion is given to the PW-1 that Cash
amount of Rs.1,12,00,000/- was received by the plaintiff from
the defendant Which has been categorically denied by PW-1.
The attention of the witness has been drawn towards the legal
notice sent by the PW-1 to defendant.
21. The suggestion also appears to be given that
defendant supplied fresh fish/goods worth Rs.57,00,000/- to the
plaintiff Which has been categorically denied by the PW-1. It is
tried to suggest PW-1 that another consignment of fish was
supplied on 20.06.2018 has also been denied. Further, denied
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that defendant paid total amount of Rs.6,10,92,000/-. It is also
tried to suggest PW-1 that on the instance of plaintiff
Rs.2,50,000/- payment was made to a 3rd party i.e. J.D.
Brothers on the instruction of plaintiff.
22. After having gone through the further cross-
examination of PW-1, though, the attention of PW-1 was drawn
towards the I.T. Returns tendered vide list of documents that
Exhibit-22, those documents were referred by the defendant to
the plaintiff. Hence, those were marked as Exhibit-23 (Colly).
23. PW-1 has admitted that In his business, he has to
carry on many cash transactions. During 2022-2023, he had
done cash transaction to the tune of Rs.3,14,12,800/- PW-1 has
admitted that during the period of 2017-2018 he done
maximum and or highest business with the defendant. However,
denied suggestion that he failed to show those business
transaction in his IT returns-worth morethan of
Rs.6,00,00,000/-. PW-1 clarified that turnover of
Rs.5,84,00,000/- has been shown in the account of Vijay Lanke
Seafood with Kotak Mahindra Bank whereas turnover of
Rs.8,00,000/- (?) was shown in the account of Nasim and sons.
Thus, denied that he has not shown the entire turnover in his
I.T. Returns.
24. PW-1 further clarified that whatever transaction
defendant done by sending money directly into the account of
Vijay Lanke Seafood has been shown in the said account and of
Rs.8,00,00,000/-(?) where received in the account of Nasim and
sons from the defendant. However, PW-1 Nasim Ahmed Shaikh
has admitted that the entire transaction was carried out by
Nazim and Sons with the defendant is not shown in his IT
returns.
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25. PW-1 testified that Rs.5,84,00,000/- was received
directly from the defendant into the account of Vijay Lanke
Seafood and Vijay Lanke Seafoods is his partner and shown in
his I.T. Returns as per Exhibit-23.
26. It is also suggested that as per I.T. Returns at Exhibit-
23, he has not done the business is the defendant and said
suggestion is also denied. It is also denied that entire payment
has been made by the Defendant to PW-1 and Vijay Lanke
Seafood. It is also suggested that PW-1 wants to suppress
intentionally, deliberately the details of the total amount
received by Vijay Lanke Seafoods. That is the reason Vijay
Lankesh Seafoods was not made party to the present suit.
27. It was also tried to suggest that the false claim has
been filed by the against the defendant by the plaintiff. So far as
the evidence adduced by the defendant, defendant have
examined two witnesses DW-1 Shibu Saha Son of Jadhav
Chandra Saha by filing affidavit of evidence dated 07.02.2024.
The sum and substance of his testimony is that, DW-1 is a
Commission agent and also engaged in the business as an
independent fish merchant/ trader and trading under the name
and style of M/s. J. Adak and company (In short J. A. & Co.).
DW-1 is conversant with the facts of the present case. He
testified that fish business is a ‘two way street’. Whereas
sometimes the plaintiff approached defendant for search of
different kind of fish to sell different kind of fishes in their
respective areas which are not available in Mumbai.
28. According to DW-1 Shibu Shah, plaintiff approached
the Defendant with specific requirement for supply of certain
kind of fishes (?). This is the evidence of the defendant. It is
incumbent upon the defendant to specify what kind of fishes
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ordered by plaintiff to supply by DW-1.
29. Similarly, DW-1 says that plaintiff also approached
him for requirement of various kind of fish. Again DW-1 is silent
as to ‘what Variety or kind of fishes’ was plaintiff interested in
purchase of such fishes from the defendant for selling it to in his
area, i.e. Mumbai.
30. According to DW-1 he approached the plaintiff, who,
is a Commission agent to supply fish in different parts of India,
including Howrah fish market. According, to DW-1 plaintiff also
brought fish from all over India, including Howrah fish market.
Thus, defendant DW-1 placed orders and fishes were delivered
at Howrah. DW-1 admits that plaintiff supplied fishes from
August 2017 to March-2018 at Howrah, as a Commission agent
on the basis of oral / verbal orders placed telephonically by DW
-1 and admitted that plaintiff supplied fish worth
Rs.6,67,70,730/-.
31. According to DW-1, he made full payment of
Rs.6,67,70,730/- to the suppliers of Fishes and/or plaintiff as
per the agreement arrived in between the concerned parties.
32. At this juncture, I want to take pause for a while, for
the reasons that the as per-testimony of DW-1 or evidence laid in
Para No.3 of the affidavit of evidence, it is the stand of
defendant that he made full payment of Rs.6,67,70,730/-.
Whereas, as per his defence and stand taken in the written
statement, he delivered, fishes worth Rs.57,00,000/- ordered by
the plaintiff to the defendant. It is stand of DW-1 that Plaintiff
without assigning any reason, refused to accept the delivery of
said rotten fishes worth Rs.57,00,000/-. Plaintiff did not
returned and abandoned fish supplied by DW-1 on the ground of
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‘Rotten Fishes’. Therefore, whatever balance amount was due
and payable by him, categorically denied the claim of the suit of
plaintiff to the tune of Rs.75,70,734/-(?). Thus, defendant come
up with the stand that the said amount was not due and payable
by him. Therefore, he claimed set-off of the amount. According
to balance-sheet of Defendant nothing remain to be paid or due
or payable by the defendant to the plaintiff.
33. The defence of defendant is that nothing due and
payable by the defendant to the plaintiff including alleged suit
claim of Rs.75,70,734/-. PW- Nasim has been falsely claimed
Suit amount as per the testimony of the DW-1 Shibu Saha.
34. DW-1 Shibu Saha testified that he paid total amount
of Rs.6,10,92,000/- to the plaintiff i.e. suppliers with the
knowledge and consent of the plaintiff. However, plaintiff
concealed the said material fact from the Court. It is stated by
DW-1 that he paid Rs.4,69,92,000/- upto 27.02.2008 and
having receipts. DW-1 has a Challan/receipt bearing No.1326
dated 15.03.2018 issued by the plaintiff. The said fact is
admitted by the plaintiff. Challan duly produced at Page No.120
along with the plaint. I reproduce relevant plaint Para as under:-
Plaint Page No.120:-
After perusal of the plaint, I
perused the said challan No. 1326
found to be at Page No. 118 not No.
120 showing balance of previous
challan No. 1324 dated 28.02.2018 of
Rs.2,23,92,047/- & total balance of
Rs.2,27,78,730/- if added in each
other the amount comes to the
Rs.4,51,70,777/-.
35. It is pertinent to note that plaintiff annexed the
challan/invoices/receipts of those challans or invoices with
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plaint and come up with the case that these amounts have been
paid. There is no dispute about the payment of these
invoices/challans attached to the plaint. The only question for
consideration of the court is, whether as per the claim of the
suit, Plaintiff is entitled to recover amount of Rs.75,70,734/-(?)
as against the rival stand of claim of set-off. The defense of the
defendant is that the said amount is not due. The due amount is
Rs.56,00,000/- and odd as against the Suit amount.
36. As per the order of the plaintiff, DW-1 supplied the
fishes worth Rs.57,00,000/-. Therefore, claim the set off saying
& stand that no amount is due and payable by the defendant, if
it is so, then, it is incumbent on the shoulder of the defendant to
prove that Plaintiff have placed the orders of Fishesh of the
different kind, which was not available in Mumbai. Therefore,
defendants agreed to sell the said variety/kind of the fishes
which is available at ‘Howrah Fish market’ and supplied those
fishes as per the order of the plaintiff.
37. Further, testimony of the DW-1 goes to point out that
though PW-1 denied that he did not receive cash amount,
however, PW-1 subsequently, admitted payment of cash amount
of Rs.5,00,000/- out of Rs.7,50,000/- and Rs.2,50,000/- in two
installment of Rs.1,00,000/- and Rs.1,50,000/-. According to the
DW-1 he paid under his instruction of plaintiff.
38. DW-1 contended that he has maintained the
statement of all supplies of (Fishes) made by the plaintiff and
the payment made by DW-1 until 27.02.2018. Said record is
maintained by him in his regular course of business and produce
Statement of payments for the year 2017-2018 and prayed to
admit it in evidence marked as Exhibit- D-2.
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39. I have perused Exhibit-D2. It is marked at Exhibit-33
by My Ld. Predecessor supported by 65-B marked as Exhibit-35.
There appears total 67 various challan, starting from Challan
No. 507 to 1326 (1st Challan and Last Challan No. 526 Total 67
in Numbers and not having chronical challan number) and total
amount in bill appears to be Rs.6,67,70,730/- Out of which paid
Rs.4,69,92,000/- leaving balance of Rs.1,97,78,730/-.
40. According to DW-1, he also paid additional amount of
Rs.1,41,00,000 between April-2018 and October-2018. The said
payment is also duly recorded in his bank statement. DW-1
tendered vide ExhibitD-3. I have also perused the said bank
statement D-3. This is also supported by 65-B certificate
alongwith affidavit. It is marked as Exhibit-35. Thus, Exhibit-34
Bank Statement, goes to show that opening balance is
Rs.1,97,78,730/-. Total amount, by way of total 15 transaction
of Rs.1,41,00,000/- have been made and leaving balance to the
tune of Rs.56,78,730/-, as against what has been claimed by the
plaintiff in a suit Rs.75,70,734/-.
41. According to DW-1 Shibu Saha, he made cash
payment also of Rs.5,00,000/- + Rs.2.50,000/- at two times
Rs.1,00,000/- and Rs.1.50,000/- Total Rs.7,50,000/-. From bank
statement of DW-1. It is apparent that cash amount of
Rs.8,50,000/- has been paid to clear the entire dues vide
Exhibit-D-5 i.e. Challan No. 507 dated 16.12.2017.
42. I also perused the document at D-5 i.e. the challan
No. 560 which is a carbon copy marked at Exhibit-36. After
perusal of it, goes to show that balance of previous of Challan
No. (Sic) dated 20.12.2017 amount of Rs.64,63,486/-. Total
balance amount of Rs.69,01,678/- is reflected and in the last
column of debit or credit balance, amount of Rs.69,01,678/- less
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amount shown. In last but one row, in the Colum of (less
amount be remitted) amount of Rs.16,00,000/- is reflected. In
the column of debt / credit balance amount Rs.59,01,678/-(?) is
reflected.
43. From the said challan No.560 it can be inferred that
the credit balance amount of is 59,01,678/- and not as reflected
in Suit Claim Rs.75,70,734/-. However, said document cannot
be inferred that amount of Rs.8,50,000/- as stated on work in
Para No. 6-C which would indicate that cash amount of
Rs.8,50,000/- has been paid by the defendant to the plaintiff.
44. DW-1 testified in Para No. 6-D and Para No.7 of the
‘affidavit of evidence’ at Exhibit-27 as per chart of Para No.7 on
05.02.2018 Fish was transported by way of Truck (Truck
Number not mentioned and details of truck also not mentioned)
11375 KG worth Rs.47,33,900/-, on 05.06.2018 by way of Train
(However, no train number or name of the train is reflected)
transported 8 boxes of fishes worth Rs.2,28,150/- and again on
15.06.2018 by way of Train (However, no train number or name
of the train is reflected) Transported 26 boxes of worth
Rs.7,38,528/- Total worth Rs.57,00,578/- vide Exhibit-D.
45. It is pertinent to note that no truck number and
details of the truck are not given. The bone of contention of ld.
Advocacy, M. A. Khan is that though the said consignment of
goods of fishes has been shown transported by truck or train
neither details of the truck or trade has been given. The said
conduct of the defendant goes to show that the said stand is
false and frivolous and taken only with a view to avoid the
liability of a repayment. Hence, prayed to reject the claim of set
off of Rs.57,00,000/- taken by the Defendant which is also
devoid of merit. It is not at all established, even through
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examination of the another witness by the defendant DW-2
Manindra Bera S/o Tarapada Bera Who had showing ignorance
during the cross-examination about a person named One
‘Shreyas Srivastav’. Mute question arises whether his affidavit
was drafted by the said person D-2. He is unable to know
English language and knows little Hindi language and can able
to read and talk and speak only Bengali language fluently. DW-2
was asked by his company to attend today's date i.e. by the
defendant. However, DW-2 specified that he narrated the
contents of his affidavit to one Mou Shah resident of Calcutta,
who, in return drafted his affidavit into English and explained
him and got notarized. DW-2 also fairly admitted that he do not
know Advocate Mou Shah and whether said name is reflected in
his affidavit of evidence? DW-2 is unable to read English,
therefore, DW-2 unable to tell said fact.
46. DW-2 Manindra Bera further also admitted that along
with his affidavit, no document have been tendered to show that
he was serving as a Manager in the defendant company i.e. J. &
A Co. It is pertinent to note that D-2 stated that company told
the name of PW-1 Nasim Bhai. DW-2 had no occasion to meet
Nasim Bhai, however again changed the version and stated that
he had been seen Nasim Bhai’s company & not PW-1. However,
according to DW-2 never talked with PW-1 and unable to state
about content of his affidavit Whether statement about Nasim
Bhai is a true or correct fact.
47. According to Defendant, Nasim Bhai is he not liable
to pay Rs.56,78,730/- as stated in his affidavit of evidence in
Para No.5 to the plaintiff. However, defendant denied suggestion
that it is not correct to say that the false statement made by him
in his affidavit of evidence Para No.5.
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48. I perused the Para No.5 of Exhibit-39 i.e. affidavit of
evidence of DW-2. No such amount of Rs.56,78,730/- is
reflected. On the other hand, in said para, the value of total Fish
supplied by the plaintiff to the defendant showing
Rs.6,67,70,730/- is reflected. Secondly, the amount due and
payable by the defendant to the plaintiff to the tune of
Rs.75,70,734/- is reflected. Lastly, the amount of
Rs.6,10,92,000/- is shown to be paid by the defendant to the
plaintiff is reflected. Therefore, by giving such suggestion by
plaintiff, instead of suggestion ought to have giving the
suggestion that defendant was supposed to pay amount of
Rs.75,70,734/- as due & payable. It has been suggested on
behalf of the plaintiff that amount of Rs.56,78,730/- is due and
payable by shattering his own case of the plaintiff in respect of
outstanding amount claimed in a suit.
49. It appears suggestion is given, what stand has been
taken by the defendant about outstanding amount of
Rs.56,78,730/- as per his balance-sheet and ledger or bank
Statement. No doubt, the said amount as per the stand of the
defendant in written statement, sought set-off of the said
amount as against the fish sold to the plaintiff worth
Rs.57,00,000/-. However, set off claim is required to be
established and proved. The onus to prove said fact of set-off
claim, is on the shoulder of the defendant.
50. Further, perusal of the testimony of DW-2 goes to
show that the purpose of examination of DW-2 Manindra Bera is
that DW-2 is working as Manager of the defendant Company. He
is knowing the dealing with the customers in respect of business
transaction as a Manager. Set-off claim transactions are well
within his knowledge. However, in view of the aforesaid cross-
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examination and the fact that in challan at Exhibit D-6 marked
as at Exhibit-26 wrong Truck number is mentioned mistakenly in
challan by handwriting. I Perused the Exhibit-37, after perusal
D-6, it appears marked as Exhibit-37 (Colly) by my ld.
Predecessor as per roznama dated 03.07.2024.
(Due to Court time over further judgment is deferred
17.10.2025)
(Further Judgment is resumed on 18.10.2025)
51. Thus, from the documentary evidence, the defendant
tendered vide list of documents at Exhibit-28 total 7 documents
mark as Exhibit-32 to 37, as against the documentary evidence
tendered by plaintiff vide Exhibit-16 list of document, out of
which the document at serial No.1 bills for supplier of fishes
marked as Exhibit-17 (Collectively), the document at Serial
No.4 letter dated 15.07.2019 marked as Exhibit-18 and
Document at Serial No.5 reply dated 31.07.2019 marked as
Exhibit-19, and document at Serial No. 2 Bank statement of the
plaintiff, at Serial No.3 ‘Goods Dispatch Memo’ and serial No.6
email letter dated 31.08.2021 are not proved. If it is so, to prove
the outstanding amount, plaintiff has to either tendered his
Ledger accounts extract or Bank statements duly certified by the
certificate under Section 2 of Bankers Books Evidence Act along
with either 65-B Certificate under Indian Evidence Act, 1872 or
63 of Bharatiya Sakshya Adhiniyam, 2023 or especially in the
light in plaint para No.16 it is averred as under:-
Plaint Para No.16
The present Suit is filed as a
Summary Suit under Order XXXVII
Rule 1 and 2 of CPC based on
admitted liability and upon settled
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account, duly confirmed by the
defendant by way of
acknowledgement, therefore, suit is
maintainable as summary suit. The
plaintiff further submits that he is not
seeking any relief which is not falling
within the ambit of this rule.
52. Surprisingly, despite the said fact it appears that the
suit is registered as a Commercial Suit No.459 of 2020 especially
by erasing the word ‘Summary’ and inserted handwritten word
‘Commercial’ when the original typed title appears to be capital
SUMMARY SUIT NO._____ OF 2019. Therefore, I perused the
endorsement of the Court and found that the Summary Suit of
2019 was lodged on 03.09.2020. Subsequently, it appears that
the word ‘Summary’ has been erased and the nomenclature of
the Summary Suit has been converted into Commercial Suit.
53. It is pertinent to note that in ‘Written Statement’ at
Exhibit-5 (initial affidavit in reply dated 09.03.2021 has been
adopted as a written statement) while commenting upon the
contents of Plaint Para No.16 in Written Statement Para No.20
the following environments are found in Written Statement Para
No .20:-
With reference to Para No.
16, I deny the contents of same in
its entirety. The present suit has
not been filed under Order XXXVII
Rule 1 and 2 of CPC. The plaintiff
has falsely misrepresented the
present suit under Order XXXVII
Rule 1 and 2 of CPC.
54. It is apparent that written statement is not the in fact
written statement. Written Statement appears to be a ‘affidavit
in reply tendered to the motion’ dated 09.03.2021. Therefore, it
is evident, when the said reply was filed, that time the
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nomenclature of the summary suit has been changed to
commercial suit. Even, on the first page of the plaint i.e. Index,
it is also under the title it is reflected as under ‘Under Order
XXXVII of Code of Civil Procedure 1908. It means that
nomenclature appears to be a suit.
55. This, being, a factual scenario in roznama dated
09.03.2021 there is the endorsement that Ld. Advocate of the
defendant filed affidavit in reply at Exhibit-5 taken on record.
Therefore, ld. Advocate sought to treat reply as written
statement. It appears that despite there was no interim
application, the said Exhibit-5 reply had been tendered
subsequently vide purshish Exhibit-05 asked to treat written
statement.
56. Be as it may be now, I have to deal, what grounds are
taken in the written synopsis of argument by the plaintiff at
Exhibit-30 and rejoineder at Exhibit-43 by dealing with issue
No.1 to 4. It case of plaintiff that PW-1 has proved that he has
sold, supplied and delivered fishes to the defendant for total
amount of Rs.6,67,70,734/- during August-2017 to March-2018
according to the plaint chart. In Chart, while dealing with issue
no.2, the amount of the fish sold, supplied and delivered of
total 3292 boxes as per (As per First Chart) Rs.1,08,67,351/-
and Second chart for total 2028 quantity of box
Rs.1,04,92,957/-, as per chart in para No.10 of Rs.
1,25,07,994/-, Rs.4,39,28,971/- for total 5450 boxes i.e.
6,67,70,734/- by saying that amount of Rs.5,92,00,000/- is
received by RTGS remaining amount as a due and payable by
the defendant.
57. It is the stand of the defendant that as per his ledger
amount of Rs.56,78,730/- is outstanding and not as per the
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claim of the suit Rs.75,70,734/-. It is pertinent to note that
defendant proved the said amount by producing his ledger
accounts duly supported by B-65 certificate whereas the bank
statement tendered by the plaintiff at serial No. 2 of Exhibit-16
and goods dispatch memo at serial No. 3 and e-mail at serial no.
6 dated 31.08.2021, said fact have been not at all proved.
58. On the other hand, defendant failed to prove that he
supplied, sold and delivered fishes to the tune of Rs.57,00,057/-
as per his stand. According to DW-2 fishes were sold by truck
and trains. However, wrongly mentioned the number of the
truck inadvertently by sleep of pen. However, as I have already
pointed out that even assuming that the truck number is
wrongly mentioned, however, no truck or train numbers, name
of the train are mentioned and no cogent evidence have been
tendered to prove the said stand. In written statement, he come
up with the admission about outstanding amount of
Rs.56,78,730/-. Therefore, it is absolutely not at all proved that
the defense of set-off taken is true and correct and probable one.
Therefore, this is the admission about the outstanding amount
by the defendant and disputed the claim of the suit
Rs.75,70,734/-. The amount to be recovered with interest is
Rs.84,79,134/-, as stated in written arguments of plaintiff at
Exhibit-30.
59. The suit cannot be decreed as prayed as per prayer
clause or the argument advance.
60. So far as the ‘written argument’ tendered by the
defendant at Exhibit-42, I have carefully gone through it. The
stand taken about unregistered partnership firm, therefore, the
suit is not maintainable under Section 69 of Indian Partnership
Act is not at all digestible being this is not the suit of rendition of
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accounts in between the partners. Suit being filed against the
3rd party, the section 69 of Partnership Act would not attract.
Therefore, the ratio relied upon in the matter of
Sunkari
Tirumala Rao and Others (Supra) with utmost respect would
not come to the help of defendant.
61. Similarly, so far as the other objection taken in respect
of the ‘cause of action arose in Calcutta’, therefore, this Court
have no jurisdiction, jurisdiction would be at ‘Calcutta’, cannot
be accepted as the the orders from Calcutta is placed at Mumbai.
The goods/fish were supplied from Mumbai to Calcutta. The
payments was received from Calcutta to Mumbai. Therefore,
equally the cause of action can said to be having, to the Calcutta
as well as Mumbai Courts. However, it is the ‘sweet choice’ of
the plaintiff, where to institute the suit unless there is a contrary
contract is shown to it by consent of the parties about the
jurisdiction is decided by the parties. Therefore, I do not found
any merits in the said submission.
62. So far as the further objection in respect of ‘benami
transaction’ in respect of sale of fish to the defendant is
concerned being ‘Vijay Lanke of Seafood or Mr. Vittal Lanke is a
partner of the plaintiff, having partnership (unregistered firm)
are concerned, it is not at all digestible because it is the case of
the plaintiff that he purchased the fish from the vendors and
sold to prospective buyer and sometimes the money is to be
deposited in directly in the account of the seller/vendors i.e.
private party & said fact is admitted by DW-1. Hence, I do not
found any merits in the said allegation of the benami
transaction. Thus, the ratios relied upon by the
Sunkari
Tirumala Rao and Others (Supra) relied upon by the defendant
would not come in his aid. Therefore, I have no hesitation being
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this is a ‘Summary Suit’ might, be advertently or inadvertently it
has been changed to the commercial suit. However, appears to
be a ‘Summary Suit’ being instituted on the basis of invoices of
the vendors /sellers i.e. Maharashtra Fresh Fish Suppliers
Association marked at Exhibit-17 (colly).
63. Thus, I noted my finding to issue No. 1 & 2 partly
affirmative that the outstanding amount is Rs.56,78,730/- and
not as claimed Rs.75,70,734/- inter-alia noting my affirmative
finding to the issue no.3 that this court has jurisdiction to try
and adjudicate the suit. Therefore, noted my partly affirmative
finding to the issue No.1 holding that plaintiff is entitled for
amount of Rs.56,78,730/-. Hence, I proceed to pass following
order___
ORDER
1. The erstwhile Summary Suit subsequently converted
in Commercial Suit No. 459 of 2020 is partly decreed with
proportionate cost.
2. Defendant do pay to the plaintiff a sum of
Rs.56,78,730/- alongwith @ 16% P.A. from the date of filing of
the Suit till its realization.
. Decree be drawn up accordingly.
(Dictated, delivered and pronounced in open Court)
(SANJIV PRABHAKAR PINGLE )
JUDGE, CR NO.32,
Date : 18.10.2025 CITY CIVIL COURT, AT MAZGAON,
MUMBAI.
Dictated on:18.10.2025
Typed on :22.10.2025
Signed on :10.11.2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE:11.11.2025 NAME OF STENOGRAPHER
TIME: 05.50 p.m. Mr.Mahesh S. Lugade
Name of the Judge (With Court
room no.)
HHJ Shri. S. P. Pingle
(Court Room No.32)
Date of Pronouncement of
JUDGEMENT/ORDER
18.10.2025
JUDGMENT/ORDER signed by P. O.
on
10.11.2025
JUDGEMENT/ORDER uploaded on 11.11.2025
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