Final Order 1

Order Details: Other
Pdf Text: 1
Received on : 18.04.2018
Registered on : 02.05.2018
Decided on : 14.12.2021
Duration : 03Y 07M 12D
EXHIBIT7
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.151 OF 2018
( CNR No.MHCC01-005824-2018)
IN
SUMMARY SUIT NO. 1346 OF 2017
Tejraj Manroopchand Tak,
Hindu, aged about 50 years,
businessman, 238 Agrawal Building,
Room NO.7, 1st floor, Thakurdwar Road,
Mumbai 400004. … Plaintiff
Vs.
1. Rajendra Bhansali,Hindu, adult,
Trader, for himself and for the
firm of D.C.Metal carrying on
business at 267, Thakurdwar Road,
Mumbai 400002.
2. M/s.D.C.Metal a partnership firm
carrying on business at 267,
Thakurdwar Road, Mumbai 400002 … Defendants
Advocate Mr.B.B.Parekh for the plaintiff.
None for the Defendant.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 14th December 2021
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JUDGMENT
1. The plaintiff has filed suit for recovery of Rs.46,98,113/ against
defendants with further interest at the rate of 24% p.a. from the date of
the suit till realisation of the decreetal amount.
2. Plaintiff has submitted that he has a business and engaged in the
trading of metal, Steel Metal and scrap etc. The defendant no.1 has
claimed himself businessman. However, some time defendant no.1 used
to act as an agent middleman in the market transaction. The defendant
has acted through defendant no.2 i.e. his brother by name Vasant
M.Bhansali. Vasant Bhansali is partner of defendant no.2 that is
M/s.D.C.Metal a Partnership firm. The defendant no.1 initially acted as
an agent of undisclosed firm and purchased scrap material from
plaintiff on 6/6/2015 worth Rs.14,17,500, on 8/6/2015 worth
Rs.21,36,000/ and on 4/9/2015 worth Rs.21,52,000/. In total the
defendant no.1 has purchased goods from plaintiff worth
Rs.57,05,500/ and he agreed to pay interest at the rate of 24%p.a. The
plaintiff on persistent demand of payment of outstanding dues. The
defendant no.1 informed that he is facing financial crunch. But to
reduce the debt he managed to supply 16 Tons of Aluminium Ingots.
The said goods was delivered at the instance of plaintiff in the godown
of one Mr.Govind Singh. The goods delivered by defendant no.1 was
about 26,30,203/ and the balance of Rs.30,75,295 is payable by
defendants to the plaintiff. Thereafter defendant no.1 filed false
complaint of cheating against Govind Singh in L.T.Marg Police Station.
However, on report of the police the matter appears to be of Civil
nature therefore, the complaint is closed. Defendant no.2 is too much
indebted to the Bank and the financial institution. Financial position of
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defendant no.2 has become more precarious. Therefore, the defendants
requested that it will take some time to clear the dues. Meanwhile,
defendant no.1 disclosed that he has merely acted as an agent of
defendant no.2. His brother Vasant Bhansali is partner of defendant
no.2. The plaintiff has attached invoices of goods supplied by him to the
defendant no.1 which are at Exhibit A to C. As per the case of the
plaintiff inspite of demand the defendants failed to pay the amount to
him, therefore, on 5/5/2017 the plaintiff has issued notice to
defendants and called upon them to make payment of Rs.30,75,297/
with interest. Notice is duly received by defendants. But they failed to
repay it. Therefore, this suit has been filed for recovery of due amount
and in the said suit this Summons for Judgment is tendered on record.
3. From Roznama it appears that the suit is received by Court on
15/9/2017. On 11/12/2017 the advocate for both the defendants
appear on record and filed Vakalatnata on behalf of both defendants.
But only defendant no.2 has filed reply to the Summons for Judgment.
The defendant no.2 claiming himself the partner of defendant no.1. The
Vasant M.Bhansali defendant no.2 appeared on record through
defendant no.1. He submitted that the plaintiff has filed suit on false
and misleading statement. He has suppressed the material facts, filed
false and fabricated documents. Therefore, the suit is liable to be
dismissed and unconditional leave to defend the suit deserves to be
granted to the defendants. One more ground from the side of defendant
that defendants are not liable to repay amount of plaintiff but the
plaintiff is liable to repay the amount of defendants that is to the tune
of Rs.32,12,685/. The defendants further submitted that at the request
of plaintiff the defendants has delivered goods that is Aluminium Ingots
total worth Rs.32,12,685/ in the godown premises of Mr.Govind Singh
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at Vasai. The defendant no.2 has mentioned the Truck number and
receipt of goods which is confirmed by Govind Singh. But it is the case
of defendants that the goods were delivered for selling because the
plaintiff is not businessman, he is just a broker. Thereafter, for some
time the defendant no.2 asked about his goods to plaintiff but he was
avoiding to answer him. Therefore, he further asked to Mr.Govind
Singh. Govind Singh replied him that he has allowed him to only
unload the goods in the premises and on next date goods were taken by
plaintiff from the godown. Accordingly, plaintiff has cheated
defendants. The goods were entrusted that to plaintiff but he has
misappropriated those goods. Therefore, defendant no.2 has lodged FIR
at LT Marg Police Station, the said FIR is pending for investigation. In
that FIR plaintiff has admitted receipt of goods. The defendant no.2 has
denied receipt of demand notice. He has denied the invoice at Exhibit A,
B, & C and submitted that plaintiff has filed false suit alongwith false
documents. As per case of defendant no cause of action has been arisen.
Therefore, the suit is not tenable. However suit is not covered under
Order 37 Rule 2 of the Code of Civil Procedure with these allegations
the defendant no.2 requested to allow him to defend the suit
unconditionally. In para 7 of reply the defendant no.2 stated that the
defendant no.1 and 2 have wrongly joined as party in the suit.
Therefore, the suit is bad for misjoinder of parties.
4. Considering contents in plaint and defence raised by defendants,
following points arise for consideration to which I have given reasons
before them:
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Sr.
No.
POINTS FINDINGS
1 Does plaintiff entitled for the relief sought
in the summons for judgment ?
In the
negative
2. Does defendant entitled for leave to defend
the suit unconditionally ?
In the Affirmative
3 What Order ? Summons for
Judgment is rejected
R E A S O N S
AS TO POINT NOS.1 AND 2:
5. From Roznama it appears that the concerned advocate is
appeared on record for both the defendants. Though the reply is filed by
defendant no.2 only but he has also pleaded some facts from the side of
defendant no.1. Heard learned advocate of plaintiff and defendant no.2.
As per case of the plaintiff that he has delivered goods to defendant
no.1 who has acted from the side of defendant no.2. It is admitted
position that defendant no.2 is partnership firm and Mr.Vasant Bhansali
is the partner of defendant no.2. As per case of the plaintiff that the
defendant no.1 Rajendra Bhansali had approached him through
defendant no.2. But Rajendra Bhansali is not appeared on record. The
plaintiff submitted that initially Mr.Rajendra Bhansali appeared through
undisclosed partnership firm but lateron he dislcosed the name of
defendant no.2. When it is the fact as per the case of the plaintiff that
defendant no.1 appeared through undisclosed firm then how the
plaintiff has delivered goods in the name of M/s.D.C.Metal and
Partnership Firm. On the other hand, it is the case of defendant no.2
that the plaintiff is not businessman he has worked as middleman in the
market transaction. Therefore, through plaintiff he has delivered goods
in the godown of Mr.Govind Singh at Vasai for selling but lateron those
goods are misappropriated by plaintiff and Govind Singh. Therefore,
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defendant has lodged report against plaintiff and Govind Singh.
6. The plaintiff in the plaint stated that the defendants managed to
supply 16 Tons Aluminium Ingots in respect to the due amount
accordingly Rs.26,30,203/ have been deducted from total due amount
of Rs.57,05,500/. As per statement of defendants they lodged report
against plaintiff and Govind Singh at L.T.Marg Police Station. The copy
of FIR is annexed with reply. From FIR it appears that on 16/3/2017
FIR is lodged against plaintiff and Govind Singh that same contents
have been mentioned by defendant no.2 in his reply. The report is
lodged on 16/3/2017 and the suit is received by Court on 15/9/2017
means after lodging of FIR by defendant no.2 against plaintiff. It is
submitted by plaintiff that the police came to the conclusion that the
dispute is of Civil nature and they closed the complaint. It is settled
principle that once FIR is lodged though the dispute might have
disclosed of civil nature the police cannot close report but the police
have to take action as per procedure prescribed in Criminal Procedure
Code and Criminal Manual. On the other hand, defendant no.2
submitted that investigation of that FIR is going on. As per case of the
defendants the plaintiff has admitted delivery of goods in the godown of
Govind Singh. Then plaintiff has to show it was delivered for
adjustment. This dispute is triable issue between the parties whether
plaintiff has delivered goods as per invoices or whether defendant has
delivered goods as per his contents in the reply. The fact is also material
to consider that the plaintiff has admitted delivery of goods in the
godown of Govind Singh but as per his case that goods were delivered
towards adjustment of his due amount. The question raised from the
side of defendant no.2 is certainly triable question that needs to be
decided on merit by giving fullfledged opportunity to both the parties.
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Defendant has denied purchase of goods as per invoice produced by
plaintiff on record. Submission of plaintiff is that though the defendant
no.2 has raised triable issues but defendant no.1 failed to file reply.
Therefore, defendant no.2 entitled for leave to defend unconditionally.
Therefore, the Summons for Judgment be allowed against defendant
no.1. Here defendant no.1 is appeared on record through advocate but
failed to file reply to the Summons for Judgment in such circumstances
the suit can be proceeded exparte against him. But in absence of no
reply from defendant no.1 for Summons for Judgment, the Summons
for Judgment cannot be allowed against him. Accordingly, I answer to
point no.1 in negative, 2 in affirmative and following order is passed:
O R D E R
1. Summons for Judgment No.151/2018 stands
rejected.
2. Defendant no.2 is allowed to defend the suit
unconditionally.
3. The Summons for Judgment No.151/2020 is
disposed of accordingly.
(C.V.Patil)
Adhoc Judge,
City Civil Court,
Date: 14.12.2021 Gr.Mumbai.
Dictated on: 14.12.2021
Typed on : 17.12.2021
Signed on : 22.12.2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
22/12/2021 4.30p.m. Mrs.Jyoti Mane
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
14/12/2021
JUDGEMENT /ORDER signed by P.O. on 22/12/2021
JUDGEMENT /ORDER uploaded on 22/12/2021
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