Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Presented on : 30052019
Registered on : 30052019
Decided on : 25102021
Duration : 02 Y, 04 M 25 D
EXHIBIT2
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.178 OF 2019
(CNR NO.MHCC010053522019)
IN
SUMMARY SUIT NO. 404 OF 2018
WADHAWAN LIFESTYLE RETAIL ]
PVT. LTD., Registered under the ]
Companies Act,1956 having address ]
at 4th Floor, HDIL Towers, Anant ]
Kanekar Marg, Bandra (East), ]
Mumbai 400 051. ].. Plaintiff.
V/s.
VAMA APPAREL (I) PVT. LTD. ]
A Company incorporated and ]
registered under the provisions of ]
the Companies Act 1956 having its ]
registered office at 72, Pedder Road, ]
Mumbai 400 026. ]..Defendant.
Advocate Mr. Nitin Parkhe for the plaintiff.
Advocate Mr. Brijesh Nittekar for the Defendant.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 25th OCTOBER, 2021
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JUDGMENT
The Summons for Judgment is taken out by the plaintiff in
a suit for recovery of amount.
2. It is the case of the plaintiff that the plaintiff is engaged in
the business of retail. Defendant is engaged in the business of the
departmental stores dealing with premium brands. Plaintiff further
states that it has acquired a license to sell the Edhardy and Cristian
Audigier Brands in India. Plaintiff was interested in marketing of those
two brands through the retail store of defendant located at Pedder
Road, Mumbai. Defendant agreed to sale the products of those brands
in its store on 20/10/2008. As per the agreement the plaintiff was to
supply the goods to defendants at wholesale price and the defendant
had to sale it by MRP and submit the report to plaintiff on 7th day of
every month. Defendant was entitled to 28% margin in full price sale
and 17% price during end of season sale.
3. It is the case of the Plaintiff that the defendant was
required to remit the monthly sales amount net of defendant’s margin
and the applicable VAT within 5 days of submitting the monthly report.
In case of delay, the defendant was liable to pay the interest at the rate
of 15% p.a.
4. It is the case of the Plaintiff that there was heavy demand
for the goods till mid 2011 and Plaintiff raised invoices to defendant
from time to time and the amount was paid by the defendant
accordingly. However, after September 2011, the demand was
decreased and resultantly the Plaintiff was required to decrease the
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supply to the defendant. Supply was completely stopped by December
2012 owing to lack of sales. Plaintiff asked the defendant to close the
counter on 17/12/2012 as the cost of overhead expenses was very high
to bear. Defendant committed default in payment and at the end of
December 2012, amount of Rs. 6,10,813/ was due to Plaintiff from the
defendant. Plaintiff demanded the balance amount to defendant from
time to time but defendant did not pay the same.
5. It is the case of the plaintiff that on 11/01/2013, Mr. Vishal
Salgia, the Director of the defendant assured plaintiff that he was
travelling and would look into the matter once he returns to India on
20/01/2013. After repeated reminders, defendant made part payment
of Rs.2,00,000/ on 26/06/2013 and requested Plaintiff to give some
time to pay the balance amount due to lack of business activity.
Accordingly, plaintiff gave 6 months time to defendant to pay the
balance amount. However, the defendant did not pay the amount even
in the extended period. Hence, Mr. Dhiren Desai the business head of
the plaintiff met with Mr.Vishal Salgia who assured to pay the balance
amount at the earliest. In spite of repeated demands by email, the
defendant failed to pay the amount of Rs. 4,10,813/. Hence, Plaintiff
was constrained to institute the present suit for recovery of the said
amount along with 15% interest.
6. Suit summons was served upon the defendant and he
appeared before the Court. Hence, Plaintiff took out summons for
judgment. It was duly served upon the defendant. He filed his reply and
prayed for leave to defend. It is the case of the defendant that,
defendant did not commit any default in payment. It is further stated
that the agreement executed on 20/10/2008 was executed for the
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period of one year only. However, the parties continued with the
arrangements envisaged therein further upto the later part of December
2012. Defendant further stated that as there were no sales, plaintiff
informed defendant that it was closing its counter with immediate effect
as per the email dated 17/12/2012. Defendant lateron realised that the
license given to Plaintiff was canceled and there was no merchandise
with the plaintiff for sale.
7. It is the case of defendant that the plaintiff was repeatedly
calling defendant for payment. The defendant was having no idea about
it. Hence, he told plaintiff that he would look into the matter once he
comes to India. However, after returning to India, defendant came to
know that Plaintiff filed a petition for winding up against the defendant
and obtained exparte decree therein.
8. The defendant has sought leave to defend the suit on the
following grounds:
A) Payment of Rs.2,00,000/ was made on adhoc
basis by the defendant as per the prevailing practice.
B) Plaintiff himself lost the license as he failed to
maintain the sales.
C) Plaintiff wanted to reexport the merchandise in
September 2012 and get license for new brand
called Adolfo Dominguez which he could not
acquire.
D) In November 2012, Plaintiff assured defendant
to have a new stock though his license was canceled.
E) In the month of December 2012, Plaintiff
misrepresented defendant that the counter at
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WAMA was closed due to low sales when his license
was canceled.
9. Defendant has further stated that Plaintiff has not produced
any reliable documents to show that any amount was due to him by the
defendant. Defendant has prayed for dismissal of summons for
judgment and for grant of leave to defend.
10. Considering the pleadings, evidence 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?
In the
Affirmative
3 What Order ? As per final order
R E A S O N S
AS TO POINT NOS.1 TO 3:
11. Before going to the merits of the matter, it is necessary to
state the admitted facts. Execution of the agreement dated 20/10/2011
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is admitted. Nature of the transaction between Plaintiff and defendant
is also admitted. It is admitted that the counter was closed in the month
of December 2012. The email dated 17/12/2021 is also admitted. The
part payment of Rs.2,00,000/ was made by the defendant.
12. In the above circumstances, it is the case of the defendant
that the amount of Rs.2,00,000/ was paid by the defendant on adhoc
basis. However, there was no mention of the adhoc payment in the
email sent by the defendant to plaintiff.
13. Admittedly, plaintiff filed a winding up petition against the
defendant and defendant has deposited the amount in the Hon’ble high
court. This suit is instituted within 4 weeks from 14/02/2018.
14. The only triable issue as per the case of the defendant is
that the claim of the plaintiff is based on the extract of ledger account
maintained by the plaintiff. Hence, unless the contents of the said
extract are proved by the plaintiff, he is not entitled to the relief as
claimed for. In support of this submission learned Advocate for the
defendant relied upon the judgment in the case of Sai Om Petro
Specialities Ltd. Mumbai Vs M. Industries Mumbai reported in
MANU/MH/1253/2011. In the matter before the Hon’ble Lordship, the
transaction was regarding selling a shop. The defendant though replied
to the demand notice, did not file reply to the suit. In the circumstances
it is held that the plaintiff has to prove his case for summons to
judgment.
15. Learned Advocate for defendant further relied upon the
judgment in the case of Chandradhar Goswami and Others Vs The
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Gauhati Bank Limited reported in MANU/SC/0031/1966. It is held
that, mere entry in the account extract is not sufficient to hold that the
amount was advanced. There needs to be some independent evidence
to prove the fact of advancement of the amount. In the matter, before
Hon’ble Lordships, the extract was furnished by the Bank and it has got
benefits of the Bankers Books Evidence Act. In the present matter, the
plaintiff has not produced any document except the Account Extract to
show that the goods were supplied to the defendant. Therefore, it is
necessary for the plaintiff to lead independent evidence to show that the
goods were so supplied to the defendant. Therefore, I have come to the
conclusion that the plaintiff is not entitled to the judgment at this stage.
On the other hand the defendant is entitled to leave to defend the suit.
16. The defendant has already deposited the amount in
compliance of the order of the Hon’ble High Court. Hence, it is not
necessary to impose any condition on the defendant while granting the
leave to defend. Hence, I answer point No. 1 in the negative, point No.2
in the affirmative and in answer to point No. 3, I proceed to pass the
following order.
O R D E R
1. Summons for Judgment is dismissed.
2. Unconditional Leave is granted to defendant to
defend the suit.
3. The suit be renumbered as a Short Cause suit
and be placed before the appropriate authority for
allotment.
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4. Summons for Judgement No.178 of 2019 is
disposal of accordingly.
5. Matter be sent to Board Department for
registration.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 25.10.2021 Gr.Mumbai.
Dictated on: 25.10.2021
Typed on : 27.10.2021
Signed on : 30.10.2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
30.10.2021 AT 3.00 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
25.10.2021
Judgment/Order signed by P.O. on 30.10.2021
Judgment/Order uploaded on 30.10.2021
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