Final Order 1

Order Details: Copy of Judgment
Pdf Text: Summons for Judgment No. 169/19 1 Judgment.
@ Comm.Suit No. 697/21.
MHCC010053102019
Presented on : 28-05-2019
Registered on : 28-05-2019
Decided on : 16-09-2021
Duration : 2 years, 3 months, 19 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
SUMMONS FOR JUDGMENT NO. 169 OF 2019
IN
COMMERCIAL SUIT NO. 697 OF 2021
Narayansingh Jogsingh Solanki )
Proprietor of M/s Prayas Steel & Alloys )
An adult, aged about 44 years, Occupation )
Business, Indian Inhabitant of Mumbai, )
having address at 105, Ratna Sadan Bldg. )
1st Floor, Office No.6, 5th Kumbharwada )
Lane, Mumbai – 400 004 )...Plaintiff
Versus
1. M/s. Better Casting )
(A partnership Firm) )
2. Mr. JSRK Prasad )
(full name not known, aged about 50 years )
Managing Partner of )
M/s. Better Casting )
Both Defendants having common address )
at RS No. 192/8 B/2, 193/3 )
JRD Tata Industrial Estate, Kanuru )
Autonagar, Vijaywada – 520 007 (A.P.) )...Defendants
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Summons for Judgment No. 169/19 2 Judgment.
@ Comm.Suit No. 697/21.
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 16th SEPTEMBER, 2021.
Mr. K.P.Dubey, Advocate for the plaintiff.
Mr. O.P.Singh, Advocate for the defendants.
JUDGMENT
1. The plaintiff filed suit for recovery of Rs.10,89,219/.
2. It is case of the plaintiff that he is the proprietor of M/s.
Prayas Steel & Alloys. He is engaged in the business of stainless steel
pipes, sheets, fittings, carbon steel, alloy steel, ferrous and nonferrous
metals. Defendant no.1 is a partnership firm. Defendant no.2 is the
managing partner of defendant no.1. The plaintiff had sold and
delivered “Nickel Cathod (625) i.e. IN625 Scrap – RM” material to the
defendants as per purchase order no.1516/780 dated 19/09/2015 as
per the plaintiff's tax invoice no. 000092 dated 21/09/2015 worth
Rs.34,43,903/. Said material was dispatched from Mumbai through
transporter 'BombayAndhra Transport Organization' vide their goods
carriage note no. 89800 dated 21/09/2015. Material was delivered to
the defendants at their address mentioned in title clause of the plaint.
The defendants duly accepted and acknowledged the delivery without
raising any dispute regarding quality, quantity and rates etc. The
plaintiff has placed on record the purchase order, invoice, goods
carriage note and delivery challan at Exh.A, B, C and D respectively.
The defendants were required to pay the price within 60 days failing
which interest at the rate of 24% p.a. on entire outstanding dues was
going to be charged as per payment terms in the invoice. The plaintiff
has stated that the defendants paid Rs.26,50,106/ (including
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Summons for Judgment No. 169/19 3 Judgment.
@ Comm.Suit No. 697/21.
Rs.25,93,201/ as price and rejected goods worth Rs.56,905/ on
22/04/2016). Amount of Rs.7,93,797/ was due to be paid. Therefore,
the plaintiff issued demand notice dated 26/12/2016 (Exh.E). The
defendants had given reply dated 13/01/2017 disputing quality of the
material. The plaintiff had issued rejoinder dated 01/03/2017 and the
defendants had given reply to it on 13/01/2017. It is contention of the
plaintiff that the defendants offered to pay Rs.6,24,663/ and the
plaintiff had agreed to accept the same. Later on, the defendants
turned down from said offer and agreed to pay Rs.4,24,663/ and the
plaintiff rejected the said offer. Hence, the plaintiff filed the suit for
recovery of principal amount of Rs.7,93,797/ with interest of
Rs.2,95,422/. He also claimed interest at the rate of 24% p.a. on
principal amount of Rs.7,93,797/ from the date of the suit till
realization of the amount.
3. In this suit, the plaintiff filed Summons for Judgment No.
169/2019. As delay was caused in filing reply to Summons for
Judgment, the defendants had filed Notice of Motion No. 1896/2019
which was allowed on 22/07/2019 and delay of 22 days was condoned
by imposing cost of Rs.1,500/. Accordingly, the defendants placed on
record affidavit in reply to Summons for Judgment. The plaintiff filed
rejoinder to the same. I have gone through all these documents
including the plaint. Heard learned counsel Shri K.P.Dubey for the
plaintiff and learned counsel Shri O.P.Singh for the defendants.
4. Learned counsel Shri K.P.Dubey submitted that the plaintiff
supplied the material to the defendants in one stroke and the
defendants did not raise any dispute regarding quality of the goods.
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Summons for Judgment No. 169/19 4 Judgment.
@ Comm.Suit No. 697/21.
According to him, the defendants consumed the goods. The defendants
made last payment on 30/08/2016 i.e. after one year from the date of
receipt of the goods. It is his submission that the defendants admitted
liability of Rs.4,24,663/ in page no.6 of their affidavit in reply. The
grounds raised by the defendants are not tenable because they neither
kept the goods unused nor rejected the same. By stating so, he
submitted that the defendants do not have sufficient ground to defend
the suit and the plaintiff is entitled to the relief of summary judgment.
5. Learned counsel Shri O.P.Singh for the defendants
submitted that terms and conditions mentioned at the bottom of the
purchase order are relevant. He drew attention of the Court towards
para 7 of his reply and submitted that amount of Rs.2,00,000/ was
paid on 30/08/2016. The defendants had offered to pay Rs.6,24,663/
on 02/08/2016. Now, the plaintiff is entitled to recover Rs.4,24,663/
after deducting Rs.2,00,000/ from Rs.6,24,663/. He also submitted
that melting of material is essential for testing. He pointed out
photograph of the material filed at page 13 of reply and submitted that
condition of the material supplied is not good and it is the material of
inferior quality. Therefore, there is triable issue involved in the matter
in order to determine the amount to be paid to the plaintiff. He further
disputed the claim of the plaintiff and prayed for dismissal of summons
for judgment.
6. After considering available material on record and rival
submissions, there is no dispute with regard to basic facts. The
defendants had placed purchase order on 19/09/2015 and goods were
supplied as per tax invoice, goods carriage note and delivery challans
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Summons for Judgment No. 169/19 5 Judgment.
@ Comm.Suit No. 697/21.
dated 21/09/2015. The defendants have placed on record copy of e
mail dated 28/09/2015 of the plaintiff in which there is reference of
dispute regarding quality raised by the defendants. It is stated in it that
the material melted cannot be accepted. In short, the defendants
utilized the material supplied by the plaintiff. Furthermore, the
defendants continued to pay price of the material in installments till
30/08/2016. Email conversation reveals that both sides were
negotiating the remaining amount to be paid. As the defendants failed
to make payment in consonance with offer made on 02/08/2016, the
plaintiff is relieved from liability to act according to the said offer. It is
pertinent to note that the defendants did not pay the entire amount of
Rs.6,24,663/ as per offer dated 02/08/2016. Therefore, there is
nothing to gather that the plaintiff accepted the amount of
Rs.2,00,000/ on 30/08/2016 as a part of offer made by the defendants.
Furthermore, the plaintiff had no reason to refuse amount of
Rs.2,00,000/ considering liability of the defendants with regard to
goods supplied to them as per invoice.
7. The defendants are disputing quality of goods to bargain
outstanding amount with the plaintiff. With this regard, section 24 of
The Sale of Goods Act, 1930 (for short 'the Act') is relevant. Section 24
of the Act provides that property in goods passes to the buyer on
delivery of goods to him. If the buyer does not signify his approval or
acceptance to the seller but retains the goods without giving notice of
rejection, then, if a time has been fixed for the return of the goods, on
the expiry of such time, and if no time has been fixed, on the expiry of a
reasonable time property in the goods passes to the buyer.
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Summons for Judgment No. 169/19 6 Judgment.
@ Comm.Suit No. 697/21.
8. Similarly, as per Section 42 of the Act, the buyer is deemed
to have accepted the goods when the goods have been delivered to him
and he does any act in relation to them which is inconsistent with the
ownership of the seller. If provisions of section 24 and 42 of the Act are
read together in the light of facts and circumstances of the present case,
the defendants have not only accepted the goods but also utilized the
same by melting the same. In addition to it, they continued to pay price
of goods in installments. All these acts are inconsistent with the
ownership of the seller. It is relevant to note that there is reference of
price of rejected goods of Rs.56,905/ on 22/04/2016 in para 3 of the
plaint. Thereafter, period of two years has passed before the filing of
the suit. The defendants have not communicated refusal of goods to
the plaintiff within reasonable period.
9. Considering all these aspects, claim of the plaintiff is
established from material on record and the defendants failed to bring
on record sufficient facts which would entitle him to defend as per
Order XXXVII Rule 3(5) of the CPC. While allowing summons for
judgment, rate of interest claimed by the plaintiff on the basis of terms
and conditions in the tax invoice appears to be exorbitant and it needs
to be reduced. Interest rate in commercial transaction is ranging from
12% to 18% approximately. By striking balance in it, interest at the
rate of 15% p.a. can be granted on the principal amount from the date
of the suit till realization of the amount. Hence, I pass the following
order :
ORDER
1. Summons for Judgment No. 169/2019 is made absolute
with reduction in interest as discussed above.
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Summons for Judgment No. 169/19 7 Judgment.
@ Comm.Suit No. 697/21.
2. Commercial Suit No. 697/2021 is partly decreed.
3. The defendants are directed to pay amount of
Rs.10,89,219/ (Rupees Ten Lakhs Eightynine Thousand
Two Hundred Nineteen Only) to the plaintiff within three
months from the date of decree.
4. The defendants are further directed to pay interest @ 15%
p.a. on the principal amount of Rs.7,93,497/ to the
plaintiff from the date of filing of the suit till its realization.
5. The defendants shall bear the costs of the suit.
6. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
Date : 16/09/2021. Mumbai.
1. Dictated online on : 16/09/2021.
2. Signed on : 16/09/2021.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16/09/2021. 5.54 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 16/09/2021.
Judgment/Order signed by P.O. on 16/09/2021.
Judgment/Order uploaded on 16/09/2021.
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Summons for Judgment No. 169/19 8 Judgment.
@ Comm.Suit No. 697/21.
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