Final Order 1

Order Details: Copy of Judgment
Pdf Text: SJ 157/2018 SUM.SUIT 710/2017 1
IN THE CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT 157 OF 2018
IN
SUMMARY SUIT NO. 710 of 2017
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
(CNR.NO.MHCC010060502018)
V.K.Industrial Corporation Limited
A limited Company incorporated under
Companies Act, 1956 having office
at 303/304, 3rd floor, Loha Bhavan,
93, P.D'Mello Road, Carnac Bunder,
Masjid(East),Mumbai400009. ...Plaintiff
Versus
Jugalkishor Didwania
Age: Adult,
Carrying on business as Proprietor
in the name and style of
M/s. JUGAL STEEL TRADERS
And carrying on business at 35,
Ahmedabad Street, Carnac Bunder
Mumbai400 009 and also
at 406 Bharat Chambers,
Baroda Street, Carnac Bunder,
Mumbai400 009 and residing
at 1003B, Manjula Vasant Valley
Garden, Near Dindoshi Bus Depot,
Goregaon(East), Mumbai400 063. ...Defendant
Appearances:
Advocate Ms.Pooja Rathod for Plaintiff.
Advocate Ms.Sanna Khan for Defendant.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 10TH JANUARY 2020
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SJ 157/2018 SUM.SUIT 710/2017 2
J U D G M E N T
1. This is Summons for Judgment for recovery of Rs.20,05,241/
(Rupees Twenty Lakhs Five Thousand Two Hundred and Forty One
Only) with Pendente Lite and future interest at the rate of 18% p.a..
2. According to the plaintiff, it is a registered company. The
defendant is carrying on business as proprietor in the name and style of
M/S. Jugal Steel Traders. Pursuant to the orders placed by the
defendant with the plaintiff's office, the plaintiff sold supplied and
delivered to the defendant iron and steel goods for Rs.10,04,537/on
25.08.2015 and for Rs.10,00,704/ on 29.08.2015, under two invoices.
The total of the said amounts is RS.20,05,241/. The defendant received
the goods in good and sound condition. The defendant did not raise any
objection regarding the quality, quantity, rates, terms and conditions of
the invoices. The defendant agreed to pay the amount of the invoices
within 30 to 40 days from the date of the invoices and also agreed to
pay interest at the rate of 18% p.a. if the payment is delayed. However,
the defendant did not make the payment inspite of repeated demands
by the plaintiff. Vide legal notice dtd.18.10.2016 the plaintiff asked the
defendant to pay the dues. The defendant replied the notice vide reply
notice dtd.06.11.2016 stating that he has bonafide intention to make
the payment but for financial constraints. Therefore, the plaintiff has
claimed recovery of the amount with interest as prayed.
3. The defendant filed reply contesting the Summons for Judgment.
According to the defendant, though the suit is filed in April 2017
Summons for Judgment is taken on in may 2018 without explaining the
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SJ 157/2018 SUM.SUIT 710/2017 3
delay. The suit has been valued by way of total amount of two bills.
Thus, the suit is on the basis of accounts between the parties without
confirmation of liability. The goods were not sold to the defendant, but
the same were sold to M/s Harish Trading Company. There is no privity
of contract between the plaintiff and the defendant. There is nothing to
show that the goods were supplied to the defendant. Thus, there are
disputed facts which require leading of evidence. Therefore, the
defendant requested to grant unconditional leave to defend.
4. Considering material on record and submissions made on behalf
of the parties points arise for determination alongwith my findings
thereon are as under:
POINTS FINDINGS
1. Whether the plaintiff is entitled
to Summons for Judgment?
In the Affirmative.
2. Whether the defendant is
entitled to Leave to defend?
If yes, whether conditional/
unconditional?
In the Negative.
3. What order? As per final order
REASONS
AS TO POINTS NO.1 to 3 :
5. The Ld Advocate on behalf of the plaintiff argued that the
documents on record i.e. the invoices and the reply notice
dtd.06.11.2016 issued by the defendant prove that the plaintiff supplied
the goods for the total amount of RS.20,05,241/. The defendant
admitted his liability. Therefore, Ld advocate on behalf of the plaintiff
requested to allow the Summons for Judgment.
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6. On the other hand, Ld advocate on behalf of the defendant
argued that the suit is based on accounts which have not been
confirmed. Therefore, the suit is not maintainable. Further, the goods
were never sold to the defendant but the same were sold to M/s Harish
Trading Company. There is nothing to show that the goods were
supplied and delivered to the defendant as the necessary challans are
not produced. Thus, there are triable issues as to whether the goods
were supplied to the defendant or not. Therefore, he requested to reject
the Summons for Judgment and grant unconditional leave to defend.
7. True that the suit was filed in 2017 whereas the Summons for
Judgment is filed in 2018. However, that cannot be a reason to reject
the Summons for Judgment. So far as the sale and delivery of goods to
the defendant is concerned, the invoices dtd.25.08.2015 and
29.08.2015 clearly show that the same were addressed to Jugal Steel
Traders and not to M/s Harish Trading company. Although the
defendant came with the contention that the goods were sold to Harish
Trading Company nothing is filed on record to reliably say that the
defence raised by the defendant by said contention is probable. It is not
disputed that the defendant had issued the reply notice dtd.06.11.2016.
Having gone through the copy of reply notice, the defendant admitted
therein that he had ordered for the goods. He contended therein that
the said goods were further sold and supplied by him to Harish Trading
Company. Thus, it is clear from the contents of reply notice that the
goods were sold to the defendant by the plaintiff and the defendant
resold the goods to Harish Trading company. However, the defendant
in the reply to Summons for Judgment flatly denied sale of goods to
him but taken a false stand that the plaintiff sold the goods to Harish
trading company. Thus, the defence as raised by the defendant is totally
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SJ 157/2018 SUM.SUIT 710/2017 5
false.
8. In the reply notice the defendant had also contended that the
Harish trading company has raised issues regarding quality of the
goods. However, this court must note that no such contention is raised
in the reply to the Summons for Judgment. That apart, there is nothing
to show that Harish Trading Company had raised any issues regarding
quality of the goods. So also, the defendant prior to the reply notice
dtd.06.11.2016 never intimated the plaintiff about the quality of the
goods. Thus, the same contention in the reply notice is without any
substance. In any case, in reply to summons for judgment such plea is
not taken.
9. The defendant also argued that the suit is based on accounts.
However, the suit clearly shows that it has been based on two specific
invoices dtd.25.08.2015 and 29.08.2015 for amounts of Rs.10,04,537/
and 10,00,704/ respectively. The total of the said invoices is
Rs.20,05,241/ which is claimed by the plaintiff. Thus, the suit is not
based on the unsettled accounts. It is based on specific two invoices in
respect of specific two transactions for specific amounts. Thus,
contention of the defendant that the suit is based on accounts is not
accepted.
10. Worth to note, the defendant in reply notice dtd.06.11.2016
clearly admitted that he has bonafide intentions of making payment to
the plaintiff but for the financial constraints. This admission clearly
shows that the case of the plaintiff is true and genuine. Having
scrutinized the contentions on behalf of the parties the defence as raised
by the defendant is false. Therefore, the plaintiff is entitled to recovery
of the amount of RS.20,05,241/. However, regarding the request for
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pendente lite and future interest, there is nothing to show that the
defendant agreed to pay the interest at the rate of 18% p.a.. Therefore,
interest at said rate cannot be granted. Considering the nature of
transaction between the parties and the overall circumstances it is just
and proper to grant pendente lite and future interest at the rate of 10%
p.a.. In this background the plaintiff is entitled to the summons for
judgment whereas the defendant is not entitled to leave to defend.
Hence, point no.1 is answered as that the plaintiff is entitled to the
summons for judgment for recovery of RS.20,05,241/ with pendente
lite and future interest at the rate of 10% p.a., Whereas, Point no.2 is
answered in the Negative. In answer to point No.3 Order as follows is
passed:
ORDER
1. The Summons for Judgment 157/2018 is allowed as under:
2. The defendant shall pay to the plaintiff amount of Rs.20,05,241/
(Rupees Twenty Lakhs Five Thousand Two Hundred and Forty One
Only) with simple interest at the rate of 10% p.a. from the date of suit
till realization of amount.
3. Leave to defend is rejected.
4. Decree be drawn up accordingly.
5. The summary suit No.710/2017 and summons for judgment
No.157/2018 are disposed.
(Deepak L. Bhagwat)
AdHoc Judge,
Date: 10/01/2020 City Civil Court, Gr. Mumbai
Dictated on : 10/01/2020
Transcribed on : 14/01/2020
Signed on : 14/01/2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
15/01/2020 at 5.30p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 10/01/2019
Judgment/Order signed by P.O. on 14/01/2020
Judgment/Order uploaded on 15/01/2020
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