Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Judgment 1 Sum.Suit 654/18
MHCC010061062018
Presented on : 04-05-2018
Registered on : 21-06-2018
Decided on : 10-03-2021
Duration : 2 years, 10 months, 6 days
IN THE CITY CIVIL COURT AT MUMBAI
SUMMARY SUIT NO. 654 OF 2018
M/s. Amrit Lal & Co.
Through its Partner Mr. Hitendra
Amritlal Savla,
Having office address at 15,
Keshavji Naik Road,
Mumbai 400 009 ...Plaintiff
Versus
Irfan Rahim Salema @ Jeeva
age : not known
Goregaon Aare Milk Colony,
Unit No. 32, Goregaon East,
Mumbai 400 065 ….Defendant.
Appearances:-
Advocate Mr. Jeetendra Ranawat for the Plaintiff.
Defendant Ex-parte.
CORAM : HIS HONOUR AD-HOC JUDGE
DEEPAK L. BHAGWAT
(C.R. NO. 28)
DATE : 10th MARCH, 2021
J U D G M E N T
1. This is Summary Suit for recovery of Rs. 4,42,789/- as
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Rs.1,99,066/- towards the principal amount and Rs.2,43,723/- towards
the past interest amount at the rate of 24% p.a. The plaintiff also
claimed pendente lite and future interest at the rate of 24% p.a..
2. The case of the plaintiff is that, it deals in the business of
supplying goods as cotton seeds and oil cake. Pursuant to the order
placed by the defendant, the plaintiff sold and delivered to the
defendant the goods as per invoice dated 29.10.2012 for amount of
Rs.41,850/- bearing No. 9187, invoice dated 15.11.2012 for amount of
Rs.28,260/- bearing No. 9220, invoice dated 05.07.2013 for amount of
Rs..46,620/- bearing No. 9748, invoice dated 22.07.2013 for amount of
Rs.54,900/- bearing No. 9768, invoice dated 25.08.2013 for amount of
Rs.27,436/- bearing No. 9806.
3. Thus, the plaintiff sold the goods to the defendant for
aggregate amount of Rs.1,99,066/-. Same were delivered to the
defendant. The plaintiff maintained ledger account of the defendant.
The defendant received and used the goods and never raised any
grievance regarding quality or quantity of the goods. In discharge of
the liability, the defendant issued a cheque bearing No.57746 dated
20.07.2017, for amount of Rs.35,000/- in favour of the plaintiff.
However, the same cheque was dishonoured for the reason funds
insufficient. The defendant again issued two cheques as bearing
No.160870 dated 23.04.2018 of Rs.25,000/- and 160871 dated
24.04.2018 of Rs.25,000/-, in total Rs.50,000/-. However, on
26.04.2018, both the cheques were dishonoured for funds insufficient.
As per the invoices, the plaintiff is entitled to levy of interest at the rate
of 24% p.a., in default of payment by the defendant. At the date of
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suit, the defendant was liable to pay total amount of Rs.4,42,789/-.
Therefore, the plaintiff claimed recovery of same amount with pendente
lite and future interest at the rate of 24% p.a.
4. Despite service of summons the defendant failed to appear.
Hence, the suit proceeded ex-parte against the defendant.
5. Considering the material on record and submissions made
on behalf of the plaintiff, points arise for determination along with my
findings thereon for the reasons recorded are as under:-
POINTS FINDINGS
1. Whether the suit is within limitation ? Affirmative, to the extent
of Rs.50,000/- only.
2. To what amount the plaintiff is
entitled ? Rs.50,000/- only.
3. At what rate of pendente lite and
future interest ?
18% p.a.
4. What order & decree? As per final order
REASONS
AS TO POINTS NO.1 to 4:-
6. The plaintiff filed affidavit of evidence of it’s partner PW-1
Jitendra at Exh.6. The plaintiff also produced documents with list
Exh.7. Since, the defendant failed to contest the suit and the
unchallenged testimony of PW-1 Jitendra reveals that the goods of total
Rs.1,99,066/- were sold by the plaintiff to the defendant and the
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defendant failed to make payment of the same. It is clear that the
defendant owed the amount of Rs. 1,99,066/- to the plaintiff.
7. However, the crucial question is whether the suit is within
limitation. Apparently, the goods were sold vide 5 separate invoices,
first of 29.10.2012 and last of 25.08.2013. There is no contention that
the transactions were running and continuous. Thus, all the 5
transactions were separate and different for the recovery of which
amount the period of limitation of three years would start from the date
of invoice. Even it is not disputed by the plaintiff’s Advocate that the
period of limitation of three years would start from the date of each
invoices. Thus, for the recovery of amount of Rs. 41,850/- as per
invoiced dated 29.10.2012, the limitation would end on 29.10.2015.
The limitation for recovery of amount of Rs.28,260/- as per the invoice
dated 15.11.2012 would end on 15.11.2015. The limitation of three
years for recovery of amount of Rs.46,620/- as per invoice dated
05.07.2013 would end on 05.07.2016. The limitation for recovery of
amount of Rs.54,900/- as per invoice dated 22.07.2013 would end on
22.07.2016. The period of limitation of three years for recovery of
amount of Rs.27,436/- as per invoice dated 25.08.2013 would end on
25.08.2016. However, the suit has been filed on 04.05.2018.
8. The Ld. Advocate Shri Ranawat on behalf of the plaintiff
argued that, the defendant has issued cheques dated 20.07.2017,
23.04.2018 and 24.04.2018. The same are part payments made within
the meaning of Sec.19 of the Limitation Act. Therefore, fresh period of
limitation would start from the cheque dated 20.07.2017, the cheque
dated 23.04.2018 and the cheque dated 24.04.2018. The suit as filed
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on 04.05.2018, is within three years from the same dates and therefore,
the suit is well within limitation.
9. At the outset it must be mentioned that though the plaintiff
relied on cheque dated 20.07.2017 of Rs.35,000/-, the original cheque
is not produced on record. Adv. Ranawat contended in the course of
argument that the same cheuque is deposited before the Metropolitan
Magistrate Court in proceeding under Sec. 138 of the Negotiable
Instruments Act, therefore, the original cheque could not be produced.
However, there is absolutely no pleading in the plaint that any
proceeding before Metropolitan Magistrate is pending under Sec. 138 of
the N.I.Act, and in the same proceeding the original cheque dated
20.07.2017 is filed. Even in the evidence affidavit, PW-1 Jitendra does
not utter a single word that any such proceeding has been filed before
the Metropolitan Magistrate and the cheque has been produced in the
same proceeding. No documents are produced regarding pendency of
proceeding before the Metropolitan Magistrate and showing that the
cheque was produced in the said proceeding. In these circumstances,
the contention of Advocate Ranawat in absence of any pleading and
proof regarding proceeding before the Metropolitan Magistrate Court
and filing of cheque dated 20.07.2017 therein, is not acceptable. The
net result is that only a photo-copy of cheque dated 20.07.2017 is
produced on record that too at the time of the filing of the plaint and
not in the course of evidence. In any case, it being a photo-copy a
secondary evidence, without any grounds to admit it in absence of
primary evidence, the same cannot be considered at all.
10. The plaintiff has also produced cheque dated 19.08.2013.
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However, neither there is any pleading nor any version in the testimony
of PW-1 Jitendra regarding the cheque dated 19.08.2013. Resultantly,
the same cannot at all be considered.
11. Further, the contentions of the Ld. Advocate Ranawat,
regarding application of Sec.19 are not at all applicable to the present
case. The first and foremost important ground why Sec.19 is not
applicable in respect of the cheques dated 20.07.2017, 23.04.2018 and
24.04.2018, is that as per Sec.19, the part payment must be made
before expiration of the prescribed period of limitation. As already
noted the limitation of three years in respect of the last invoice dated
25.08.2013 would end on 25.08.2016. None of the cheques were
issued before 25.08.2016. Therefore, Sec.19 of the Limitation Act is not
at all applicable.
12. The next reason is that, all these cheques are admittedly
dishonoured and not encashed. If the cheques were dishonoured, it
does not constitute part payment. According to Adv. Ranawat, though
the cheques were dishonoured issuance of cheques constituted part
payment. This Court must note that payment can be constituted only if
discharge regarding that amount can be given from the due amount. If
no discharge is given or cannot be given and also the payment is
claimed in the plaint, the amount cannot be treated as part payment.
So as to constitute part payment under Sec. 19 there should be actual
payment. The cheques dishonoured cannot be treated as part payment.
If the same were to be treated as part payment then a question will
arise whether same amount can be excluded from the claimed amount.
As there has been no payment, the amount cannot be excluded from the
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due amount. It will be a fallacy to claim on one hand that the
dishonoured cheques can be treated as part payment and on the other
hand to include the same amount of the dishonoured cheques as due
amount without giving it a discharge. For these reasons, the contention
that the dishonoured cheques can be treated as part payment is not
acceptable. Resultantly, the arguments of Adv. Ranawat, are not
acceptable and Sec.19 of the Limitation Act, cannot be applied.
13 This Court has also considered whether Sec. 18 of the
Limitation Act can be applied. This court has no hesitation to say that
a cheque can be treated as acknowledgment. However, neither cheque
dated 23.04.2018 nor cheque dated 24.04.2018 have been issued
within prescribed period of limitation and a pre-condition for
application of Sec.18 is that the acknowledgment must have been
issued before the expiration of prescribed period of limitation. Thus,
even Sec. 18 of the Limitation Act, cannot be made applicable to the
present case.
14. Still this court cannot ignore the provision of Sec. 25(3) of
the Indian Contract Act, according to which a promise made in writing
and signed by the person to be charged therewith, to pay a time barred
debt, is valid and enforceable. Since, the cheques dated 23.04.2018
and 24.04.2018 can be treated as promise to pay the time barred debts
in respect of the amount mentioned in the cheques, to the extent of the
amounts in the cheques, the liability of the defendant is enforceable.
Thus, by virtue of Sec. 25(3) of the Indian Contract Act, the plaintiff is
entitled to recovery of the said amount and it has to be held that the
suit is within limitation to the extent of said amount. Hence, point
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No.1 is answered in the Affirmative to the extent of amount of
Rs.50,000/- only and point No.2 is answered that the plaintiff is entitled
to recovery of amount of Rs.50,000/- only. The same cheques dated
23.04.2018 and 24.04.2018, being the Negotiable Instruments, in view
of Sec. 80 of the Negotiable Instruments Act, pendente lite and future
interest at the rate of 18% p.a., deserves to be granted. Hence point
No. 3 is answered as 18% p.a.. In conclusion and in answer to point
No.4 order as follows is passed:-
ORDER
1. The suit is partly decreed with costs as under.
2. The Defendant shall pay to the plaintiff the amount of
Rs.50,000/- (Rupees Fifty Thousand Only) with simple interest at
the rate of 18% p.a. from the date of the suit till realization of the
amount.
3. Decree be drawn up accordingly.
(Deepak L. Bhagwat)
Ad-hoc Judge,
City Civil Court, Mumbai
Date: 10.03.2021
Dictated on : 10.03.2021
Transcribed on : 12.03.2021
Date of sign : 26.03.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 30.03.2021 2.20 p.m.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri.D.L.Bhagwat
(C.R.NO.28)
Date of Pronouncement of
JUDGMENT /ORDER
10.03.2021
JUDGMENT /ORDER signed by P.O. on 26.03.2021
JUDGMENT /ORDER uploaded on 26.03.2021
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