Order 1

Order Details: Other
Pdf Text: 1 Summary Judgment 21/21
In Comm.SU No.4592020
Presented on : 07/09/2021
Registered on : 07/09/2021
Decided on : 02/02/2022
Duration : Y0, M4, D26
IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
SUMMARY JUDGMENT NO.21 OF 2021
IN
COMMERCIAL SUIT NO.459 OF 2020
Nasim Ahmed Shaikh )
Aged 62, Occupation )
Proprietor Nasim & Sons )
Indian Inhabitant )
Having his office at )
Chhatrapati Shivaji Maharaj Market )
Office No.4, 03RD Floor )
Palton Road, Mumbai400001 )......Plaintiff
V/s
Shibu Saha )
Aged , Occupation )
Proprietor J.A. )
Indian Inhabitant )
Having his office at )
Shop No.21, New HIT Fish Market )
Howrah711101. ).......Defendant.
APPEARANCE:
Adv. M. A. Khan for the plaintiff.
Adv. B. K. Das for the defendant.
CORAM : RAJESH A. SASNE
ADHOC JUDGE
(C.R.No.32)
DATED : 02nd February, 2022
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JUDGMENT
This application for Summary Judgment is taken out by the
plaintiff under Order XIII A of the Code of Civil Procedure to pass the
judgment in the claim against the defendant.
In brief, the plaintiff's case is as under :
2. The plaintiff is engaged in wholesale business of fish
market. The defendant is fish merchant and commission agent. From
August2017 to March2018, the defendant placed telephonic orders
with the plaintiff for supply of fishes. Accordingly, the plaintiff has sold,
supplied and delivered fishes to the defendant for total amount of
Rs.6,67,70,734/. The defendant has made payment of Rs.
5,92,00,000/ leaving behind balance of Rs.75,70,734/ due as on
01.10.2018. The defendant has not paid amount of Rs.75,70,734/. By
letter dated 15.07.2019, the plaintiff has called upon the defendant to
pay said amount. The defendant by reply denied his liability. Therefore,
to recover said amount of Rs 75,70,734/, the plaintiff has filed this suit
and therein by this application has prayed for passing Summary
Judgment against the defendant.
3. The defendant by reply at Exhibit7 resisted this application
for Summary Judgment contending that this application is false,
frivolous and without any merit. It is the case of the defendant that this
court has no jurisdiction as the transaction took place at Howrah. The
defendant admits that the plaintiff delivered fishes to the defendant
from August 2017 to March 2018 amounting to Rs.6,67,70,730/. The
defendant denied that he has made payment of only Rs.5,92,00,000/
leaving behind balance of Rs.75,70,734/. According to the defendant
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In Comm.SU No.4592020
he has paid Rs.6,10,92,000/ to the plaintiff. Upto 27.02.2018, the
defendant has paid Rs.4,69,92,000//. Same has been recorded in the
challans issued by the defendant. Thereafter, from April 2018 to
October 2018, the defendant has paid Rs.1,41,00,000/ to the plaintiff.
Therefore balance payable was Rs.56,78,730/ and not Rs.75,70,734/
as claimed by the plaintiff. The plaintiff in lieu of said balance amount
of Rs.56,78,730/ placed an order for supply of fishes from the
defendant to the plaintiff. Accordingly, the defendant has delivered
fishes amounting Rs.57,00,578/. The plaintiff suddenly refused to
accept the fishes without any reason or cause. He failed to return the
fishes to the defendant. The plaintiff's calculations in Para No.5, 7, 9
and 10 are not correct. By his reply dated 13.07.2019, the defendant
has claimed the amount from the plaintiff. With these contentions the
defendant has prayed to dismiss the application for summary judgment.
4. Heard the learned advocate for the plaintiff and the
learned advocate for the defendant. Points for determination alongwith
my findings thereon are as follows:
POINTS FINDINGS
1. Whether the plaintiff establishes that the
defendant has no real prospect of successfully
defending the claim?
No
2. Whether the plaintiff establishes that his claim
can be disposed of before recording of oral
evidence?
No
3. Whether the plaintiff is entitled for judgment in
claim? No
4. What order ? Application is
dismissed
REASONS
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In Comm.SU No.4592020
AS TO POINT NOS.1 to 3:
5. All these points are interlinked with each other and hence
they are taken together for consideration. Admittedly there is
transaction of sale of fishes between the parties. It is the case of the
plaintiff that he has sold fishes to the defendant amounting to
Rs.6,67,70,734/. It is further case of the plaintiff that the defendant
has made payment of Rs.5,92,00,000/ leaving behind balance of
Rs.75,70,734/. Whereas it is the case of the defendant that he has paid
amount of Rs.6,10,92,000/. It is further case of the defendant that for
balance amount of Rs.58,78,730/, the plaintiff had placed an order for
supply of fish with the defendant. It is further case of the defendant
that after placing of order, the plaintiff has suddenly refused to accept
the goods without reason and failed to return the same, which caused
loss of Rs.47,33,900/ to the defendant. Therefore, according to the
defendant the plaintiff is not entitled for decree on claim.
6. The plaintiff in support of the claim has relied upon
statement of supply Exhibit' A', Goods dispatch memo Exhibit' C' and 'I',
Copies of receipts at Exhibit' D' and 'J', Bank statement at Exhibit' E' and
'H', Goods dispatch memo at Exhibit' F', Statement of amount received
at Exhibit' K', Demand notice at Exhibit' L'. These documents support
the plaintiff contention about supply of fishes to the defendant.
7. The defendant in support of his claim has relied on
challans, statement of supply, statement of payments. He also relied on
challans issued by the defendant to plaintiff for supply of fishes by the
defendant. The defendant alleged that the plaintiff has issued
acknowledgement for the receipt of supply of the fishes to the plaintiff
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which is at Exhibit' D'. It shows that there is some transaction beyond
the transaction pleaded by the plaintiff. No doubt the defendant has
admitted that the plaintiff has supplied fishes to the defendant. But, it is
also the case of the defendant that he has also supplied fishes to the
plaintiff. The plaintiff in support of said transaction from his part has
relied on memos of supply, statements etc. The learned advocate for
the plaintiff disputed the transaction pleaded by the defendant in
respect of supply of fishes to the plaintiff. Whether, the
acknowledgement for receipt of the fishes is genuine or fabricated can
be decided on the basis of evidence. For decree in favour of the plaintiff
it is required to be considered whether liability also exist on the plaintiff
and in favour of the defendant. It is the case of the defendant that the
plaintiff had placed order for supply of fishes but, suddenly refused to
accept the goods. Therefore, it requires evidence to verify whether
plaintiff has placed with the defendant such order and later on refused
to accept the goods. In such circumstances it is required to verify
whether plaintiff was bound to accept the goods delivered by the
defendant or rejection of goods is proper. Under these circumstances it
is also required to verify whose liability exist in respect of said supply of
goods. Unless and until this aspect is adjudicated, the plaintiff's claim
cannot be decided. Therefore, there is triable issue. The defendant has
defense against the claim. The plaintiff's claim requires adjudication
after evidence. Moreover, the defendant has also disputed the
jurisdiction of this Court. Hence, this aspect is also required to be
decided. Hence, on the present set of facts, the plaintiff is not entitled
for judgment on claim by application for summary judgment. I answer
point Nos.1 to 3 accordingly.
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AS TO POINT NO.4:
8. In view of my findings to point Nos.1 to 3, the application
for summary judgment is required to be dismissed. In the result, in
answer to point No.4, I pass the following order.
ORDER
1. The application for Summary Judgment No.21 of 2021
is dismissed.
2. Costs shall follow the event.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date : 02.02.2022. Mumbai.
Dictated on : 02.02.2022
Typed on : 03.02.2022
Signed by HHJ on : 04.02.2022
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In Comm.SU No.4592020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
05.02.2022 at 02.20 pm
UPLOAD DATE AND TIME
(Mr. S. V. Ambekar)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI RAJESH A.SASNE
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
02/02/2022
Judgment/order signed by P.O. on 04/02/2022
Judgment/order uploaded on 05/02/2022
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