Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Presented on : 04.04.2018
Registered on : 04.04.2018
Decided on : 16.11.2021
Duration : 03 Y, 07 M, 12D
EXHIBIT-
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.125 OF 2018
(CNR NO.MH-CC01-004436-2018)
IN
SUMMARY SUIT NO. 1144 OF 2016
SAMOSARAN YARNS PVT. LTD. ]
A Company registered under the ]
Indian Companies Act of 1956 and ]
having it’s registered office at ]
41/42, Liberty Building, 2nd floor, ]
New Marine Lines, Mumbai-400020. ].. Plaintiff.
V/s.
1. M/S.PREM PRAKASH SYNTHETICS]
Having its office at Shop No.193, ]
Main Bazar, Ulhasnagar, Thane, ]
Maharashtra – 421 002. ]
And also Fact: B-6, M.I.D.C., ]
Murbad. ]
2. DEEPAK MATHURADAS CHATIJA ]
Age and full name not known of ]
Mumbai an adult Indian Inhabitant ]
claiming to be the Sole Proprietor of ]
M/s. Prem Prakash Synthetics ]
At Shop No.193, Main Bazar, ]
Ulhasnagar, Thane, ]
Maharashtra – 421 002. ]
And also Fact: B-6 M.I.D.C., Murbad. ]..Defendants.
Advocate Mr. Ramesh Jain for the plaintiff.
Advocate Mr. Sandeep Ailsinghani for the Defendants.
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CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 16th NOVEMBER, 2021
JUDGMENT
The Summons for Judgement is taken out by the plaintiff in
a suit for recovery of amount of Rs. 6,64,082.10ps. along with interest
on the amount of Rs.5,49,568/– at the rate of 18% per annum from the
date of institution of the suit till realisation of the total decreetal
amount.
2. It is the case of plaintiff that, as per the order and
instructions of the defendants, plaintiff sold supplied and delivered
goods to the defendants as per the invoices mentioned below: –
INVOICE NO. DATE AMOUNT
SSY310347 23.05.2015 78,720.00
SSY410251 26.05.2015 78,400.00
SSY410300 04.06.2015 78,400.00
SSY210102 10.06.2015 11,648.00
SSY610231 17.06.2015 72,960.00
SSY610232 17.06.2015 63,840.00
SSY360242 23.06.2015 90,600.00
SSY310918 08.10.2015 75,000.00
Total Rs.5,49,568.00
3. Plaintiff has further stated that defendant received those
goods. The transaction between plaintiff and defendant was subject to
Mumbai jurisdiction. Defendant agreed to pay the amount of invoice
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within 10 days and in default to pay interest at the rate of 18% per
annum up to the delay of 45 days. Defendants agreed to pay interest at
24% per annum if the delay is more than 4 to 5 days but less than 90
days and further agreed to pay interest at the rate of 30% per annum
beyond the period of delay of 90 days.
4. Plaintiff has further stated that he demanded the amount of
invoices to the defendants from time to time but the defendants failed
to pay the amount. Hence, plaintiff issued a letter through its advocate
on 25/06/2016 calling the defendants to pay the amount. Defendants
received the letter and replied the same through their advocate.
Defendants have raised the objection that the goods supplied by the
plaintiff were defective. Therefore, plaintiff was constrained to institute
the present suit for recovery of amount.
5. The writ of summons was duly served upon the defendants.
They appeared in the matter. Plaintiff took of summons for judgement.
It was served upon the defendants. Defendants appeared and filed a
reply along with application for leave to defend the suit.
6. It is the case of defendants that defendants purchased
goods from plaintiff from time to time through the agent by name
Chandrakant Bagadia. There was defect in the specific product that is
27 single arrow yarn containing blends of 60% polyester and 40%
cotton which is approximately 5 tons and the defendant incurred
several expenses of processing like yarn dyeing, weaving, dying of grey
cloth, logistics, administrative expenses, etc. It was found after
processing that the goods were defective and there was a variation in
the cotton blend in plaintiff’s yarn. Defendants have stated that the
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said defect was verbally addressed to plaintiff and the agent. The
defective goods were worth Rs. 16 Lac. Thereafter, plaintiff visited the
defendant’s office. Plaintiff took a sample cloth but never reverted to
the defendants.
7. It is the case of defendants that they sent the sample to
BTRA from the goods supplied by the plaintiff and on testing the
laboratory confirmed that there was a variation in the cotton blend in
that yarn. Defendants sent a copy of that report to plaintiff along with
letter on 25/03/2016. It was difficult for the defendants to stock such a
huge quantity of the goods. Defendants sent a reminder on
15/06/2016. Plaintiff did not reply to any of those letters.
8. It is the case of defendants that they received a notice from
the advocate of plaintiff on 25/06/2016 with false contents and
allegations. Plaintiff stated in the notice that no objection was raised by
the defendants regarding quality, quantity or rate of the goods.
Defendants replied the said notice on 27/07/2016.
9. It is the case of defendants that they filed RCS No. 96/2017
before the Civil Judge Junior Division, Ulhasnagar for a declaration that
the goods supplied by the plaintiff were defective and plaintiff was
bound to take back the same.
10. The defendants have further stated that this Court has no
jurisdiction to try and decide the suit as the goods were supplied at
Murbad. No transaction took place or invoice was raised at Mumbai.
The suit is instituted to harass the defendants. For all these reasons the
defendants have prayed for dismissal of the summons for judgement
and have prayed for leave to defend.
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11. Considering the pleadings, documents on record and
submissions of both learned advocates, following points arise for my
determination and my findings to them are as stated below for the
following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff is entitled to the
Summons for Judgment as prayed for?
In the
Negative
2 Whether the defendant is entitled to the
leave to defend the suit as prayed for?
In the
Affirmative
3 What Order? As per final order
R E A S O N S
AS TO POINT NOS.1 TO 3:
12. All 3 points are related to each other. Hence, they are
discussed at once.
13. Before going into the merits of the matter, it would be
proper to state the admitted facts. It is admitted that there was
transaction between plaintiff and defendant prior to the present
transaction. It is admitted that, in the present transaction also, plaintiff
supplied the goods as per the order placed by the defendants. It is the
case of plaintiff that defendants accepted the goods. It is admitted that
the goods were issued by the defendants. It is also admitted that the
defendants processed some of the goods. It is admitted that the
defendants have not paid the costs of the goods which are allegedly
defective.
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14. It is the case of defendants that they communicated to the
plaintiff that the goods were defective. The goods were supplied during
the period from 23/05/2015 to 08/10/2015. The present suit was
instituted on 26/09/2016. It is the case of defendants that they sent a
sample from the goods supplied by the plaintiff to the laboratory of The
Bombay Textile Research Association. The report dated 22/03/2016 is
filed on record. The conclusion drawn by the laboratory is that there
was shade difference between fabrics due to difference in blend.
Defendants wrote a letter to plaintiff on 25/03/2016 informing them
about the report and the defect in the goods supplied. The defendants
also sent a copy of the report to the plaintiff. The defendants have
requested plaintiff to look into the matter seriously. A reminder to that
letter it sent on 15/06/2016 to plaintiff.
15. The plaintiff issued a notice to defendants through the
advocate on 25/06/2016. It is important to note that there is no
mention of the report of the laboratory and the communication by the
defendants to plaintiff regarding defect in the goods supplied. The
notice was replied by the defendants on 27/07/2016 communicating in
clear terms about the report of the laboratory regarding defect in the
goods. Plaintiff sent a rejoinder to the defendants on 24/08/2016
denying the fact that there was defect in the goods supplied by plaintiff.
Plaintiff further stated that he had supplied the same goods to 25 – 30
other clients and none of them raised a concern about the quality or
defect in the goods.
16. It is important to note that on the day of institution of the
suit, the plaintiff was aware of the objections raised by the defendants
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regarding quality of the goods supplied by the plaintiff. However, there
is no mention of any such communication or even the report of the
laboratory in the plaint. The conduct of defendants of obtaining report
from the laboratory and communicating the same to the plaintiff shows
that he was diligent and had informed the plaintiff about the defect in
the goods prior to the institution of the suit. Therefore, the said defence
cannot be said to be after thought. Now it is the matter of evidence to
prove the contents of that report. Both the parties need opportunity to
lead evidence in that regard.
17. It is for the defendants to prove the report of the laboratory.
I have come to the conclusion that defect in the goods is triable issue
and gives ground for defendant for leave to defend. Secondly, there was
no written agreement between the parties. It is the case of plaintiff that
the jurisdiction was with the court in Mumbai. In fact, if we consider
the invoices filed by plaintiff on record, they show that the transaction
is subject to D and NH (Dadra and Nagar Haveli) jurisdiction.
Therefore, it is for the plaintiff to show that the jurisdiction lies with the
courts at Mumbai.
18. It is the case of defendants that they have filed RCS No. 96
of 2017 in the court of Civil Judge Junior Division, Ulhasagar.
Therefore, the point of jurisdiction is to be decided after hearing both
the parties in detail and this is another triable issue.
19. In the circumstances above, I have come to the conclusion
that the defendants have raised the point regarding defect in the goods
before institution of the suit. There are triable issues in the matter as
stated above. Therefore, summons for judgement in the matter cannot
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be allowed. On the other hand, an opportunity needs to be given to the
defendant to present their side. Accordingly, I answer point No. 1 in the
negative and point No. 2 in the affirmative and as to point No. 3, I
proceed to pass following order.
O R D E R
1. Summons for Judgment No.125 of 2018 is
dismissed with costs.
2. Unconditional Leave to Defend the suit is
granted to defendants.
3. The suit be sent to appropriate authority for
registration on filing of Written Statement by the
defendant.
4. Summons for Judgment No. 125 of 2018 is
disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 16.11.2021 Gr.Mumbai.
Dictated on: 16.11.2021
Typed on : 17.11.2021
Signed on : 18.11.2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
20.11.2021 AT 3.30 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
16/11/2021
Judgment/Order signed by P.O. on 18/11/2021
Judgment/Order uploaded on 20/11/2021
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