Final Order 1

Order Details: Other
Pdf Text: ..1.. SJ No.170/2019
MHCC010053132019
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO.170 OF 2019
(CNR NO.MHCC01-005313-2019)
IN
SUMMARY CIVIL SUIT NO.669 OF 2015
Mr. Nitul Naginbhai Mehta )...Plaintiff
V/s.
Ameya Prints and Others )...Defendants
Appearance :-
Learned Advocate Prashant Chande for plaintiff.
Learned Advocate Dinesh Kumar Dubey alongwith Rohit Kumar Pandey for
defendants.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84
DATE : 16/01/2024.
ORDER
1 This suit is filed for recovery of amount contending that the
plaintiff is the sole proprietor of firm named Nipa Fine Arts. Defendant
No.1 is a partnership firm, defendant No.2 and deceased Alok Saxena
were the partners of the firm. After the death of second partner Alok
Saxena, his son Ansul Saxena is made party to the suit. It is contended
that the defendant No.1 has placed purchase orders for supplying of Art
Paper Royal Gloss. Accordingly, the defendants supplied the goods of
value of Rs.5,82,676/- and raised invoices. The defendants have made
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part payment of Rs.2,77,898/-. After adjusting the part payment the
amount of Rs.3,04,687/- remained due and recoverable from the
defendants with interest, but the defendants failed to pay the amount.
The defendants have acknowledged the delivery of goods, but failed to
pay the amount, hence, plaintiff has issued notice, but in vain.
Consequently, plaintiff had filed this suit for recovery of amount.
2 The defendants tendered appearance in response to the
writ of summons. Thereafter, the plaintiff took out instant summons for
judgment. The defendants have tendered their reply to the summons for
judgment. It is the contention of the defendants that the defendant No.1
is a proprietorship business. The defendant No.2 is the sole proprietor,
deceased Alok Saxena has no concern. The plaintiff has misjoined Ansul
Saxena to this proceeding. This has to be demonstrated by adducing
evidence, therefore, the defendants are entitled to leave to defend. They
further pointed out that the calculation of amount is not properly
mentioned. The invoices are not having names of the persons who
received the goods. The defendants also raised objection that the
documents are fabricated, no summary suit could be filed on the basis
of document filed by and prayed for grant of unconditional leave to
defend.
3 Heard rival parties at length. The plaintiff as well as
defendants tendered written notes of arguments alongwith copies of
documents.
4 The plaintiff is relying on the judgment passed by the
Hon’ble Bombay High Court in the case of Jatin Koticha Vs. M/s. VFC
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Industries Pvt. Ltd. reported in 2008 Volume 2 BomCR 155, to establish
that a summary suit can be filed on the basis of invoice raised against
the purchase order. Therefore, it is clear that the summary suit could be
filed on the basis of invoice.
5 The defendants have pointed out that plaintiff has filed the
document annexed with the written arguments i.e. copy of statement of
bank account. As per the statement, the defendant No.1 firm has
deposited the amount of Rs.4,00,000/- on 07/04/2014 whereas the
plaintiff is claiming in the plaint that the defendants have deposited the
amount of Rs.2,77,898/-. Therefore, this discrepancy denotes that
unconditional leave should be granted to the defendants to establish
their defence.
6 The learned advocate for defendants also pointed out that
the plaintiff has not filed original documents i.e. invoice, delivery
challan and other documents on which basis the plaintiff is claiming
recovery of amount. The record discloses that the plaintiff has not filed
original document on record. The defendant is relying on the judgment
passed by the Hon’ble Supreme Court in the case of Neebha Kapoor Vs.
Jayantilal Khandwala and others reported in (2008) 3 SCC 770. In the
cited case, having found that the plaintiff has not produced original
document, the Hon’ble High Court has granted unconditional leave to
defend. When the matter came up before the Hon’ble Supreme Court, it
was observed that no decree could be passed until and unless original
documents are produce. It is further observed that the question of
strength of defence of defendant is not a matter to be considered at the
stage when the original documents are not produced as the decree
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could not have been granted on the basis of photostat copies of the
documents and confirmed the order of the Hon’ble High Court. Now, it
is clear that the production of original documents is necessary where
the plaintiff is seeking the decree under summary suit. Thus, definitely
no decree could be passed on the basis of copies of the documents while
considering the instant summons for judgment.
7 Considering the omission to file original documents and the
defence raised by the defendants regarding summons for judgment of
parties as well as the discrepancy regarding payment as discussed
above, I am of the view that defendants are entitled for unconditional
leave to defend. In the result, I proceed to pass the following order :-
ORDER
1. Summons for Judgment No.170 of 2019 in Summary
Civil Suit No.669 of 2015, is hereby rejected.
2. Defendants are granted unconditional leave to defend.
3. Defendants are directed to file written statement
within stipulated period from the date of this order.
4. Summons for judgment is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Mazgaon
Mumbai
Date: 16/01/2024. Court Room No.84
Dictated on : 16/01/2024.
Transcribed on : 16/01/2024.
Signed by HHJ on : 17/01/2024.
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“Certified to be true and correct copy of the original signed order”.
18/01/2024
at about 5.30 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge, Court
Room No.84, Mazgaon, Mumbai
Date of pronouncement of Order : 16/01/2024
Order signed by Hon'ble Judge on : 17/01/2024
Order uploaded on : 18/01/2024
at about 5.30 p.m.
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