Final Order 1

Order Details: Copy of Judgment
Pdf Text: CS No.100045 / 2019, Elektromag - Dhanashri Judgment (Exh.29), 1 of 8
MHCC010048462019 Suit Filed on : 25.04.2019
Evidence Over : 04.03.2020
Arguments Closed : 28.02.2024
Decided on : 28.02.2024
Duration : 04 Y, 10 M, 03 Days
City Civil & Sessions Court, Mazgaon, Greater Mumbai
Court Room No. 31 – Commercial Court
(Additional District Judge : Vijay S. Hingne, LL. M.)
Commercial Suit No. 100045 / 2019 Exhibit No. 29
Plaintiff : M/s. Elektromag Devices Private Limited
General Manager - Sunil Balkrishna Pawaskar
4th floor, Unique Industrial Estate,
Off. Veer Savarkar Marg, Prabhadevi,
Mumbai – 400 025.
VERSUS
Defendants 1 M/s. Dhanashri Tooling Systems Pvt. Ltd.
F-5, Walunj, Aurangbad – 431136.
Registered office address : RN 31,
Veer Savarkar Colony, Bajaj Nagar,
Walunj, Aurangbad – 431136.
2 Santosh Wamanrao Nimbulkar
Director of Defendant No.1, 76, Bajaj Nagar,
Walunj, Aurangbad – 431136
3 Khemraj Vishwanath Hingankar
RM 3A1, Veer Savarkar Colony, Bajaj Nagar,
Walunj, Aurangbad – 431136.
Appearances
Plaintiff
: Adv. Shri Pankaj Shinde
Defendant No.2
: Adv. Shri Balraj R. Reddy
Adv. Shri Mahesh M. Shahane
Suit for Recovery of ₹. 95,93,001/-
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CS No.100045 / 2019, Elektromag - Dhanashri Judgment (Exh.29), 2 of 8
J U D G M E N T
(Delivered on this 28th Day of February, 2024)
Suit is preferred for recovery of . 95
₹ ,93,001/- with
interest @ 18 % per annum.
Case of Plaintiff :
2) Plaintiff M/s. Elektromag Devices Private Limited,
Mumbai, Maharashtra, (hereinafter,
plaintiff), is in business of
trading of Aluminum Sheets.
Defendant No.1 M/s. Dhanashri Tooling Systems,
Aurangabad, Maharashtra, is registered company, with defendant
No.2 Santosh Wamanrao Nimbulkar and defendant No.3
Khemraj Vishwanath Hingankar as its Directors (hereinafter,
defendants / D-1 / D-2 / D-3).
3) During August 2013 to November 2013, plaintiff
supplied Aluminum Sheets worth
.	₹ 48,81.434/- (hereinafter
goods) to defendants. However, defendants avoided the payment.
On 01.04.2015, defendants were under liability of
.	₹ 51,26,784/-.
After negotiations, on 10.04.2015, D-3 agreed to clear
outstanding amount on monthly installment of
.	₹ 5,00,000/-.
On 15.04.2015, defendants deposited
.	₹ 5,50,531/-
through RTGS in bank account of plaintiff.
In April-2015, on request of defendants, plaintiff
provided goods worth
.	₹ 3,04,980/-.
4) With interest, defendants are liable to pay
.	₹ 95,93,001/-
to plaintiff. Hence, plaintiff issued recovery notice on
28.12.2015. Defendants replied on 16.01.2016 and admitted
liability to repay. However, defendants failed to repay. Hence,
plaintiff lodged complaint U / Sec. 420 of IPC against defendants
before Learned Metropolitan Magistrate, 5th Court, Dadar,
Mumbai, wherein enquiry U / Sec. 202 of Code of Criminal
Procedure, 1973 was ordered. In said enquiry, statement of D-2
and D-3 were recorded by the police, wherein these defendants
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CS No.100045 / 2019, Elektromag - Dhanashri Judgment (Exh.29), 3 of 8
admitted existence of liability and assured to repay the amount.
Again defendants defaulted the repayment. Hence, on
18.01.2019, plaintiff subjected dispute to Pre-Institution
Mediation. Defendants appeared only on 14.02.2019. Hence, the
Learned Secretary DLSA, Mumbai, on 30.3.2019, issued Non-
Starter Report.
Therefore, on 25.04.2019, plaintiff preferred present
Suit for recovery of . 95	₹ ,93,001/- with interest @ 18 % p. a.
Defendant :
5) Roznama Dt. 27.01.2020 shows, D-1 and D-3 failed to
appear in the Suit. Hence, suit proceeded Ex-parte against them.
Roznama Dt. 23.10.2019 shows, D-2 failed to appear in
the Suit. Hence, suit proceed Ex-parte against him.
Evidence of Plaintiff :
6) Plaintiff adduced oral and documentary evidence as :
PW1, Exh.5 : Evidence-Affidavit Sunil Balkrishna Pawaskar
Exh.5-A Additional Evidence-Affidavit of PW-1 Sunil
Balkrishna Pawaskar
PW2, Exh.17 : Evidence-Affidavit of Amol Gokul Gavali
Exh.7 : Extract of Resolution of Board of Directors.
Exh.8 : Original invoices, delivery challans and lorry
receipts. (Collectively)
Exh.9 : Office copy of Notice Dt. 28.12.2015.
Exh.10 : Reply of defendant Dt. 16.01.2016.
Exh.11 : Certified copy of criminal case.
Exh.12 : Ledger Account by plaintiff regarding transaction
with defendant during April, 2013 to 20.04.2015.
Exh.12A : Statement of account with Certificate U / Sec. 65-B
of Evidence Act 1872 (Collectively)
Exh.13 : Evidence closing pursis filed by plaintiff.
Exh.14 : Application for issuing witness summons.
Exh.16 : Order Dt. 09.05.2017 by the Learned ACMM, 5th
Court, Dadar, Mumbai, directing enquiry U / Sec.
202 of Cr.P.C.
Exh.18 : Certified copies of statements of Khemraj Hingulkar
and Santosh Nimbulkar, recorded by police on
26.06.2017.
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CS No.100045 / 2019, Elektromag - Dhanashri Judgment (Exh.29), 4 of 8
Exh.19 : Evidence closure pursis Dt. 04.03.2020.
Exh.21 : Written Arguments filed by plaintiff.
Points for determination :
7) None present. Perused Record. Points for determination,
findings and reasons are as follows :
Points
Findings
1. Is plaintiff entitled for recovery as
prayed?............................................. In the Negative.
2. What Order?..................................... As Final Order.
R E A S O N S
8) Important dates in the Suit are as follows :
Date
Business in the Suit
27.01.2020 : D-1 and D-3 failed to appear in the Suit. Hence,
the suit was proceeded Ex-parte against them.
23.10.2019 : D-2 failed to appear in the Suit. Hence, suit was
proceeded Ex-parte against him.
14.02.2020 : Plaintiff examined Sunil Balkrishna Pawaskar.
20.02.2020 : Plaintiff closed its evidence.
21.02.2020 : Heard arguments of plaintiff.
Suit adjourned for Judgment on 24.02.2020.
26.02.2020 : Plaintiff sought permission to examine witness.
Said application was allowed.
04.03.2020 : Plaintiff examined Witness No. 2 Amol Gokul
Gawli. On same day, plaintiff closed its evidence.
12.10.2020 : Plaintiff filed its written arguments (Exh.21).
31.10.2020 : Plaintiff moved Chamber Summons for
relinquishing cost of . 1,00,000/- to save the
₹
jurisdiction of this Commercial Court.
07.01.2021 :
My Learned Predecessor, observing that, plaintiff
is master of the Suit, permitted the Chamber
Summons No.100609 / 2020 and the amendment.
12.01.2021 : Plaintiff carried out amendment.
19.01.2021 :
Pursis by plaintiff, stating about death of D-3.
Hence, my Learned predecessor ordered that, the
suit is abated against D-3.
Accordingly Suit was adjourned for Judgment.
29.01.2021 :
Counsel appeared for D-2 and filed VP at Exh.23.
Exh 24 application to set aside Ex-parte order.
Exh 25 application for dismissal of the suit.
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20.02.2021 :
Reply by plaintiff at Exh.27 and Exh.28 to Exh.24
and Exh.25.
My Learned Predecessor directed application at
Exh.24 and 25 be registered as Notice of Motion.
20.03.2021 : Above applications are registered as Notice of
Motion No.100496 / 2021 and 100497 / 2021.
13.04.2022 : Both Notice of Motions are dismissed in default.
9) Thereafter, from 24.06.2022 till today, on each and
every date, plaintiff was directed to take steps, but, he failed.
Hence, suit was adjourned for dismissal order.
On perusal, it was noticed that, plaintiff has adduced
evidence. Hence, Suit is taken for Judgment.
Reasons as to Point No. 1 & No. 2 :
10) Plaintiff has preferred recovery suit. Limitation for
recovery suit is of three years. In that backdrop, relevant dates of
the transaction and the Suit are as follows:
Date
Business
August 2013 to
November 2013 : Goods worth .	₹ 48,81,434/- supplied by
plaintiff to defendants .
15.04.2015 : Defendants made part payment of .	₹ 5,50,531/-.
April, 2015 : Goods worth .	₹ 3,04,980/- supplied by plaintiff.
28.12.2015 : Plaintiff issued recovery notice.
16.01.2016 : Defendants issued reply.
19.11.2016 : Complaint No. 139 / SW / 2016 by plaintiff
against defendants, U / Sec. 420 of IPC (Exh.11)
26.06.2017 : Statement of defendant No. 2 Santosh Wamanrao
Nimbulkar and defendant No. 3 Khemraj
Vishwanath Hingulkar recorded by Police.
18.01.2019 : Plaintiff filed Pre-institution mediation.
30.03.2019 : Non Starter Report.
25.04.2019 : Suit is filed.
Limitation : From supply of goods :
11) As per plaintiff, he supplied the goods to defendant in
August 2013 to November 2013 and thereafter in April 2015.
Period of limitation for filing recovery suit is of three
years. So, the plaintiff ought to have filed the suit by 30.04.2018.
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CS No.100045 / 2019, Elektromag - Dhanashri Judgment (Exh.29), 6 of 8
However, the suit is subjected to Pre-Institution Mediation on
18.01.2019. Hence, the Suit is time barred.
Limitation : From notice-reply :
12) As per evidence of plaintiff, he had issued recovery
notice on 28.12.2015 (Exh.9) and said notice was replied by
defendants on 16.01.2016 (Exh.10).
Said notice and its reply are unchallenged from
defendant. Hence, they are relied upon. In its paragraph No.3,
defendants have stated as follows:
“The company is still undergoing huge financial
problems and the company is trying its level best to
overcome the same, the company assures you and your
client company that the company shall remit whatever
would be the outstanding amount at its end as soon as
its financial problems are over”.
Through above notice-reply, defendants admitted the liability.
13) This notice is Dt. 16.01.2016. So, three years Limitation
for plaintiff to file Suit commenced from 16.01.2016 and will
conclude on 15.01.2019.
It means, Suit ought to have been filed prior to or on
15.01.2019. However, plaintiff subjected the dispute to Pre-
Institution Mediation on 18.01.2019 and thereafter filed the
present suit on 25.04.2019.
So, even from admission from the notice-reply, the suit
is barred by Limitation.
Limitation : From knowledge of notice-reply :
14) Plaintiff stated that, notice reply of defendant Dt.
16.01.2016 was received by plaintiff on 20.01.2016.
Questions arises as to whether, limitation can be
commenced from this date of knowledge.
15) However, said fact (
reply is received on 20.01.2016) is
stated by the plaintiff, for the first time, only during evidence-
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CS No.100045 / 2019, Elektromag - Dhanashri Judgment (Exh.29), 7 of 8
affidavit, that too, by way of
handwritten addition. Said fact was
never disclosed by plaintiff in the Plaint.
It means, fact (
reply is received on 20.01.2016), is out
of pleading.
Importantly, plaintiff did not adduce evidence to show
that, reply Dt. 16.01.2016 was received by him on 20.01.2016.
So, for want of specific pleading and for disclosing said
fact at belated stage during evidence-affidavit, that too through
handwritten addition and then for failure to lead evidence
regarding the date of knowledge of said notice-reply,
contention
of plaintiff that, (reply is received on 20.01.2016), appears to be
improvement, cannot be considered.
Further, said admission is made by defendant on
16.01.2016 itself. So, whatever date plaintiff might have received
said notice-reply, limitation will start running from 16.01.2016.
So, Suit subjected to Pre-Institution Mediation on
18.01.2019, is barred by limitation.
Admissions of defendant before Police :
16) Perusal shows that, plaintiff had initiated Complaint
before the Learned Metropolitan Magistrate, who has initiated
enquiry U / Sec. 202 of Cr.P.C.
During said enquiry, police had recorded statements of
Khemraj Hingulkar and Santosh Nimbulkar on 26.06.2017.
Plaintiff has filed its certified copies at Exh.18).
Plaintiff examined PSI Amol Gawli (PW2, Exh.17). He
deposed that, he had recorded statements of both Khemraj and
Santosh, wherein both admitted that, they are under the liability
of .	₹ 48,49,010/- and they will repay said amount to plaintiff in
installments.
Hence, question arises as to, whether these admissions
will recommence the limitation from 26.06.2017 onward.
It needs to be considered that, these admissions are
recorded before the police officer in the Criminal Complaint.
Hence, they have assumed the nature of confession.
As per Sec. 25 of the Indian Evidence Act, said
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CS No.100045 / 2019, Elektromag - Dhanashri Judgment (Exh.29), 8 of 8
confession, being made before Police Officer, cannot be proved
against the defendant.
Hence, said admission / confession will not revive
limitation and it will not bring the Suit within Limitation.
Conclusion :
17) From all Points, the Suit is filed beyond the period of
limitation. Therefore, plaintiff cannot be granted relief of
recovery. Hence, Point No.1 is answered in the Negative and the
Suit is disposed off, by following Order :
ORDER
1. Commercial Suit No. 100045 / 2019, M/s. Elektromag
Devices Private Limited Vs. Ms. Dhanashri Tooling
Pvt. Ltd., is dismissed with cost.
2. Decree be drawn up accordingly.
3. Judgment dictated and pronounced in Open Court.
4. Plaintiff be informed about their right to challenge this
Judgment and period of limitation for the same.
5. After compliance and period of Appeal, Shirestedar and
AS to consign Record of the Suit, to Record Room.
Mumbai
Dated : 28.02.2024 (Vijay S. Hingne)
Additional District Judge,
Court Room No.31 – Commercial Court,
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
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Note : The regular Stenographer of this Court was on leave. The Court
was working with in-charge steno.
This Judgment was dictated and pronounced on 28.02.2024 in Open
Court. Dictation was recorded by in-charge Stenographer.
Despite reminders, she did not submitted the final draft for correction
till, 21.03.2024.
Hence, the Judgment was corrected through regular Stenographer and
it is signed and uploaded today i.e. on 22.03.2024.
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