Order 1

Order Details: Copy of Judgment
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MHCC010066462018
Presented on : 04-06-2018
Registered on : 19-06-2018
Decided on : 03-02-2023
Duration : 4 years, 7 months, 29 days
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
COMMERCIAL SUIT NO.682 OF 2021
(SUMMARY SUIT NO.646 OF 2018)
Hitesh Khemchand Bhansali, Aged 38 years ]
Proprietor of M/s. Kamal Impex Fitting, ]
Having office at Shop No.G18, 89/91, ]
Durgadevi Street, Mumbai400 004. ] ..Plaintiff
Versus
Indotech Industrial Solutions Pvt.Ltd ]
A Company incorporated under Indian ]
Companies Act, 1956, Having its registered ]
office 2nd floor, Ankur Plaza, Near ]
Matruchaya Nursing Home, Warje Flyover, ]
Warje, Pune411 058, Maharashtra, And ]
also at: S.N.44, Shed No.09, NR Hemant ]
Dangat Shed, Near Bank of Maharashtra, ]
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Near Abhiruchi Parisar, Next to Dhumas ]
Electricals, Narhe, Pune411041, ]
Maharashtra, India. ] ..Defendant
______________________________________________________
Ld. Advocate Ajit Shobhawat for plaintiff
Ld. Advocate M.V.Singhania for defendant
______________________________________________________
JUDGMENT
(Delivered on this 3rd day of February, 2023)
1. Suit is for recovery of an amount of Rs.6,23,067/
along with interest.
Shorn of unessential, the plaintiff’s case may be
summarized as under:
2. In pursuance to the purchase order dated
08/09/2017 placed by the defendant, on 12/09/2017, the
plaintiff supplied goods of worth Rs.6,08,054/ to the defendant
as per invoices No.304 and 307. Goods were sold to the
defendant on a credit period of 30 days. Defendant agreed to
pay interest at the rate of 18% p.a. for the unpaid amount after
the expiry of 30 days. Plaintiff asked the defendant to pay the
outstanding amount. Defendant made a payment of Rs.50,000/
on 12/03/2018 by IMPS, but, failed to make payment of the
balance amount. Plaintiff send a demand notice dated
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13/04/2018 asking the defendant to make payment of the
outstanding amount. The defendant was served with said
notice, but, failed to make the payment. Hence, this suit.
3. A summary suit was filed as per Order 37 Rule 2 of
C.P.C. After receipt of the writ of summons, the defendant
tendered his appearance. Thereafter, the plaintiff has taken out
a Summons for Judgment. As per the order dated 6/10/2021,
passed in the summons for judgment No.11/2019, an
unconditional leave to defend the suit is granted to the
defendant.
4. The defendant by filing a written statement at
Exhibit 7 strongly resisted the suit claim. Defendant has
specifically denied the transaction pleaded in the plaint. It is
contended that the plaintiff relied upon a purchase order dated
8th of September 2017. Had there been any purchase order
dated 8th of September 2017, the plaintiff would have filed it at
the time of the institution of the suit. After taking objection by
the defendant, in the leave to defend application, the plaintiff
has filed a purchase order dated 11/9/2017 along with a reply
to leave to defend the application. The said purchase order is
not signed by the defendant.
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5. Defendant further submits that the invoices filed on
record are neither signed by the issuing party nor signed by its
recipient. Therefore, those invoices cannot be relied upon.
Plaintiff did not file the delivery challan or receipt along with
the suit. Therefore, the receipt filed on record, at the belated
stage, cannot relied be upon. Said receipt is a falsely prepared
document. The receipt shows that the goods were delivered to
‘Mukund Industries’. However, there is no signature of the
recipient on said receipt. The quantity of the goods mentioned in
the receipt does not match the quantity of the goods mentioned
in the invoices. Therefore, from said receipt, it can not be
construed that goods under the suit invoices were delivered to
the defendant. In spite of the directions given by the court, at
the time of the hearing of the summons for judgment, the
plaintiff could not file original documents. Invoices filed on
record are fabricated. Defendant did not receive the invoices.
Defendant did not receive the goods alleged to be supplied by
the plaintiff. Plaintiff did not file the purchase order
deliberately along with the plaint. There is no concluded
contract between the parties. Therefore, a summary suit under
Order 37 Rule 2 of the Civil Procedure Code is not maintainable.
6. Defendant has specifically denied averments made
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in the plaint. Defendant claims that it has not placed the
purchase order for the supply of goods. It has not received the
invoices and the goods. In February 2018, the defendant
demanded some goods of worth Rs. 60,000/ to Rs.70,000.
Plaintiff asked for an advance amount. Therefore, the defendant
paid an amount of Rs. 50,000 on 13/03/2018 as an advance for
the supply of goods. However, the plaintiff did not supply the
goods. The amount of Rs50,000 was paid by the defendant as an
advance amount. It was not paid as part of payment towards
supplied goods. Defendant did not receive the demand notice.
The alleged invoice did not contain any clause regarding the
payment of interest. Therefore, Plaintiff is not entitled to the
interest as claimed. The defendant is working for gain at Pune.
Goods were alleged to have been delivered to the defendant in
Pune. Part payment is alleged to have been made by the
defendant from Pune. Therefore, this court does not have
jurisdiction to try this suit. Plaintiff does not have a cause of
action to file the suit against the defendant. By making all these
averments, the defendant prayed to dismiss the suit.
7. After passing the order of case management
hearing, issues were settled at Exh 8. They are reproduced here,
along with findings thereon, for the reasons to follow as under:
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Sr.No Issues Findings
1 Does the plaintiff prove that he
supplied goods of worth Rs.6,08,054
under invoice no. 304 and 307 to the
defendant? ... Proved.
2 Does the plaintiff prove that an
amount of Rs.5,58,054/ is
outstanding against the defendant
towards the supply of goods?
…Proved.
3. Whether the plaintiff is entitled to the
suit amount? …Yes
4. What order and decree? ... The suit is
partly
decreed as
per the final
order .
REASONS
As to issues no. 1 and 2
8. To substantiate the suit claim, the plaintiff has
examined himself at Ex. 9 and placed reliance upon the
following documents:
1 Copy of email along with purchase order dated 8/9/2017
(Exh. 14 collectively).
2 Office copies of the tax invoices ( Exh. 15 collectively).
3 Copy of the email dated 11/09/2017 (Exh. 16).
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4 Cheque dated 27/1/2018 (Exh. 17).
5 Cheque return memo (Exh.18 ).
6 Ledger account ( Exh. 19 collectively).
7 Income tax return along with audited balance sheet ( Exh.
20 collectively).
8 Office copy of notice along with the postal receipt and
acknowledgment ( Exh.21 collectively ).
9 Letter by Kranti Transport dated 18/1/2022 (Exh.22
collectively).
10Certificate under section 65 B of the Indian Evidence Act
( Exh. 23 ) .
11 Lorry Receipt ( Exh.24 ).
9. Plaintiff filed the evidence closing pursis at Exh. 25.
In rebuttal, the defendant has examined DW1 Hemlata
Bhausaheb Janjire at Exh. 26. Defendant placed reliance upon
resolution (Exh. 27 )and filed evidence closing puris at Exh. 28.
10. PW1 Hitesh Bhansali, in his evidence affidavit,
testifies in accordance with the averments made in the plaint. In
addition to the averments made in the plaint, PW1 Hitesh
deposes that the defendant by the email dated 11/09/2017,
sent through one Sundaram, requested the plaintiff to deliver
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the goods at ‘Mukund Industries’ Bhosari and as per instructions
given in the email dated 11/09/2017, goods were delivered at
‘Mukund Industries’ Pune. PW1 Hitesh further testifies that the
defendant issued a cheque of Rs.6,08,054/(Ex.17) against
invoices (Ex.15 colly). Defendant paid an amount of
Rs.50,000/ by IMPS. However, the defendant failed to pay the
balance amount of Rs.5,58,054/. Therefore, the plaintiff
deposited the cheque given by the defendant for encashment.
However, the said cheque was dishonored on 24/04/2018 for
the reason ‘payment stopped by the drawer’. PW1 Hitesh
further testifies that he has maintained the ledger account
(Ex.19) of the defendant. He has filed incometax returns for
the assessment year 201819. His Chartered accountant has
maintained an audited balance sheet for the assessment year
201819. The name of the defendant is mentioned in the
balance sheet as ‘Sundry debtor’. Plaintiff placed reliance upon
a copy of the income tax returns (Ex.20).
11. PW1 Hitesh further deposed that he has paid the
GST amount of Rs. 92,754/ towards the transaction with the
defendant. He has issued a notice dated 13/04/2018 through
an advocate to the defendant. Said notice was duly received by
the defendant. However, the defendant neither paid the
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outstanding amount nor replied to the notice.
12. As against this, DW1 Hemlata deposes that the
plaintiff failed to file on record a purchase order dated
08/09/2017 along with the plaint. Purchase order and invoices
are falsely prepared by the plaintiff. Defendant has not received
the goods mentioned in the invoices. The lorry receipt did not
bear the signature of the recipient. From the lorry receipt, it
cannot be inferred that goods were delivered to the defendant.
Material facts, mentioned in the evidence affidavit of the
plaintiff, were not pleaded in the plaint.
13. DW1 Hemlata further deposes that in February
2018, defendant demanded goods of worth Rs. Sixty to seventy
thousand to the plaintiff. However, the plaintiff refused to
deliver the goods without advance payment. Therefore, on
13/03/2018, the defendant made an advance payment of
Rs.50,000/ to the plaintiff. However, the plaintiff did not
supply the goods. Plaintiff has not supplied the gods as per the
invoices. The suit is liable to be dismissed.
14. Relying upon the aforesaid evidence, Ld. Counsel
for the plaintiff made the following submissions:
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a Plaintiff has filed on the record a purchase order to
show that defendant asked the plaintiff to supply the goods.
Defendant has sent a purchase order through email. Plaintiff
has filed a printout of the email along with the printout of the
purchase orders.
b Goods were supplied to the defendant along with
invoices (Ex.15). Defendant has duly received the goods. As
per the directions given by the defendant, by the email dated
11/09/2017, goods were delivered at ‘Mukund Industries’,
Bhosari. The fact that goods were delivered at ‘Mukund
Industries’, Bhosari is not pleaded in the plaint. However, the
defendant has denied receipt of the goods. Therefore, the
plaintiff approached the transporter and the transporter has
given a letter (Ex.22) wherein it is specifically mentioned that
goods were delivered at ‘Mukund Industries’, Pune. Plaintiff has
also filed on record an email dated 11/09/2017(Ex.16) to show
that defendant instructed the plaintiff to deliver the goods at
‘Mukund industries’.
c Defendant made part payment of Rs.50,000/ on
13/03/2018. Defendant has also issued a cheque of
Rs.6,08,054/. No explanation is offered by the defendant as to
why it has issued the cheque corresponding to the invoice
amount.
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d Defendant has received the notice given by the
plaintiff. However, the defendant failed to reply to said notice.
e Plaintiff is coming with the specific case that he has
paid GST amount to the Government towards the transaction
with the defendant. However, the defendant during cross
examination, states that she cannot produce GST documents
relating to the relevant period. Thus, an adverse inference is
required to be drawn against the defendant for the non
production of the documents. Plaintiff has filed on record an
audited balance sheet wherein the name of the defendant is
mentioned as ‘Sundry debtor’.
f Plaintiff has brought on record sufficient evidence
to show that he has delivered the goods to the defendant in
pursuance to the purchase orders placed by the defendant, but,
the defendant failed to pay the outstanding amount.
By making these submissions, Ld. Counsel
appearing for the plaintiff urged to decree the suit.
15. Ld. Counsel appearing for the defendant
contravened the above submissions with the following
arguments:
a Plaintiff failed to file material documents along
with the suit. Plaintiff failed to file purchase order Ex.14, copy
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of the email (Ex.16), cheque(Ex.17), cheque returned
memo(Ex.18), ledger account (Ex.19), income tax returns
(Ex.20), transport letter given by transporter (Ex.22) and lorry
receipt (Ex.24) along with plaint. These documents are filed at
a belated stage by violating relevant provisions of C.P.C.
b Plaintiff also failed to plead the following material
facts:
I Receipt of purchase order dated 08/09/2017 by e
mail.
II Receipt of email dated 11/09/2017
III Receipt of cheque dated 27/01/2018
IV Maintenance of ledger account and delivery of the
goods at Mukund Industries, Bhosari.
c Plaintiff adduced evidence regarding aforesaid
material facts without pleadings. The evidence without
pleadings cannot be relied upon. To buttress this submission,
the defendant placed reliance upon the case of Biraji @ Brijraji
and anr V/s Surya Pratap and others, Civil appeal No.4883
4884 of 2017 dated 03/11/2020.
D Plaintiff did not follow the conditions in the order.
He has not given confirmation of the purchase order. He has not
issued a proforma invoice. Thus, there was no concluded
contract between the parties.
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e Plaintiff supplied the goods to the defendant at
Pune. Defendant alleged to have made part payment from
Pune. Therefore, this Court did not have territorial jurisdiction
to try the suit.
VIII Plaintiff is claiming interest at the rate of 18% p.a.
However, stipulation regarding the rate of interest is not
mentioned in the invoices.
IX There is no record or acknowledgment to show that
the defendant has received invoices and goods.
X On the basis of mere payment of GST amount, it
cannot be inferred that goods were delivered to the defendant.
XI Plaintiff claims that the cause of action to file the
suit accrued in April2017, however, it is not clear how the
plaintiff got the cause of action to file the suit in April2017.
Plaintiff has filed material documents at a belated stage.
Plaintiff has brought on record evidence without pleading by
showing utter disregard to order VI Rule 1 of C.P.C.
By making these submissions, the defendant prayed
to dismiss the suit.
16. Considered the submissions advanced on behalf of
both sides. Defendant has specifically disputed the issuance of
the purchase order dated 08/09/2017. Plaintiff claims that he
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has received said purchase order through email. Plaintiff has
filed on record email (Ex.14) which shows that the defendant,
through its purchase department, placed a purchase order.
Along with the email, two attachments were sent. Plaintiff has
filed on record printouts of those attachments. Although, the
defendant has disputed said purchase order, the material on
record shows that the defendant placed an order through one
Kajal Niranjane by email. It is pertinent to note that the email
shows the domain name of the defendant company i.e. Indotech
Industrial Solutions Pvt. Ltd. Thus, Kajal Niranjane has sent the
email from the official email id provided by the defendant
company and not from his personal email id. Defendant simply
says that it has not placed the purchase order and that the
purchase order placed on record is forged. However, the
defendant has not stated that the email address mentioned in
the purchase order is false.
17. On one hand defendant claims that it has not issued
the purchase order. On the other hand, during the cross
examination of the plaintiff, it was tried to canvass that the
plaintiff has not followed the conditions in the purchase order.
By referring to the purchase order, the following facts were
asked to the plaintiff.
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a In the purchase order it is mentioned that the total
amount will be considered as per actual weight. Payment is to
be made by the defendant against tax invoices and delivery
challans.
b Plaintiff has not given written acknowledgment to
the purchase order placed by the defendant by email.
c Plaintiff has not sent a proforma invoice as per the
purchase order.
d In the email dated 08/09/2017, it is mentioned
that the defendant asked the plaintiff to give the acceptance of
the purchase order along with proforma invoices.
18. From the crossexamination of the plaintiff, it can
be inferred that the defendant tried to suggest to the plaintiff
that the plaintiff has not followed the terms and conditions of
the purchase order. As discussed supra, the defendant is coming
with the specific case that it has not issued a purchase order
dated 08/09/2017, therefore, the defendant cannot claim that
the plaintiff has not followed the terms and conditions of the
purchase order.
19. As discussed supra, the defendant has specifically
denied receipt of the invoices and goods. The invoices (Ex.15)
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and the lorry receipt (Ex.22) do not bear any endorsement
regarding the receipt of the invoices and goods by the
defendant. Plaintiff, during the course of the trial, claimed that
goods were delivered at ‘Mukund Industries’, Bhosari in
pursuance to the directions given by the defendant by email
dated 11/09/2017. Defendant has denied having issued an e
mail dated 11/09/2017. However, the plaintiff has filed on
record a printout of an email dated 11/09/2017(Ex.16) to
show that defendant has sent said email.
20. It is well settled that in a civil case, the court has to
see the evidence adduced by the parties on the principle of
preponderance of probabilities. Defendant, as discussed supra,
denied issuance of the purchase order. It has also denied the
issuance of emails dated 08/09/2017 and 11/09/2017. The
record shows that the defendant has sent both emails. Plaintiff
has filed on record a letter given by the transporter (Ex.22)
which shows that goods were delivered at ‘Mukund Industries,’
Bhosari. Plaintiff further claims that towards part payment, the
defendant made a payment of Rs.50,000/ on 13/03/2018.
Defendant claims that said amount was paid towards a different
transaction. Defendant claims that it has paid an advance
amount of Rs.50,000/ to the plaintiff and the plaintiff did not
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supply the goods. The record shows that the defendant placed a
purchaser order through email dated 8/9/2017. However, the
defendant has not stated the specific date of the purchase order.
He has not filed on record any email to show that he has placed
the purchase order in February 2018. He has not issued any
notice asking the plaintiff to deliver the goods or to return the
amount. Defendant has also not filed the counterclaim asking
the defendant to pay the amount of Rs.50,000/.
21. Learned counsel for the defendant argued that the
plaintiff claimed that the cause of action to file the suit accrued
in April 2018. However, the plaintiff has not explained how the
cause of action accrued in April 2018.
22. Plaintiff claims that he has issued notice dated
13/04/2018 to the defendant (Ex.21). Thus, it appears that on
the basis of said notice, the plaintiff pleaded that cause of action
to file the suit is accrued in April 2018. Plaintiff has also filed on
record acknowledgment which shows that said notice was
received by the defendant. If the plaintiff has issued a notice
without delivering goods to the defendant, the defendant ought
to have replied to the said notice. If the plaintiff has falsely
prepared certain documents and made a false claim, the
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defendant ought to have reacted sharply and strongly.
However, the record shows that defendant kept mum and
denied receipt of the notice.
23. Plaintiff has filed on record copies of income tax
returns along with an audited balance sheet. Income tax returns
appear to have been verified on 28/10/2018. The audited
balance sheet shows that the name of the defendant finds a
place in the list of ‘Sundry Debtor’ and an amount of
Rs.5,58,054/ is shown as outstanding against the defendant.
24. Plaintiff has filed on record a ledger account
maintained by him. Ledger account (Ex.19) shows that prior to
these transactions also, the plaintiff supplied goods to the
defendant and the defendant paid amounts in installments.
25. The record shows that the plaintiff failed to plead
certain material facts. In a civil suit, pleadings have immense
importance. Evidence without pleading cannot be accepted.
However, in present case, plaintiff has pleaded material facts
such as purchase order by the defendant, supply of goods under
two invoices, and issuance of the notice. As stated supra, in a
civil suit parties have to prove their claim on the basis of
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preponderance of probabilities. The material on record shows
that the defendant has placed the purchase order. However, the
defendant has denied having placed the purchase order. An
email dated 11/09/2017 shows that the defendant has asked
the plaintiff to deliver the goods at ‘Mukund Industries,’ Bhosari,
Pune. However, the defendant has denied the same. Plaintiff
has filed on record a lorry receipt to show that goods were
delivered at ‘Mukund Industries,’ Bhosari Pune. Plaintiff has
filed a copy of the notice given to the defendant along with
acknowledgment. Defendant denied receipt of the notice.
Defendant’s case is based upon mere denials. Whereas the
plaintiff’s case is based on documents placed on the record. With
the evolution of information technology, there has been
acceptance of the use of email communication in commercial
transactions. Plaintiff has filed on record the email
communication to show that the defendant has placed the
purchase order and given the address for the supply of the good.
Nothing could be brought on record, on behalf of the defendant,
to discard this material evidence. For all the above reasons, the
plaintiff’s case regarding supply of goods in pursuance to the
purchase order placed by the defendant appears to be nearer to
the truth.
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26. From all the above discussion, it is held that the
plaintiff supplied goods of worth Rs. 6,08,054/ along with
invoices No.304 and 307 to the defendant. Defendant has made
a part payment of Rs.50,000/. By giving due credit to the part
payment made by the defendant, an amount of Rs.5,58,054/
remained outstanding against the defendant. Thus, the plaintiff
has succeeded to prove that he has supplied the goods of
Rs.6,08,054/ and an amount of Rs.5,58,054/ is outstanding
against the defendant. Issue Nos.1 and 2 are answered
accordingly.
Issue No.3
27. As per particulars of the claim, the plaintiff claimed
interest at the rate of 18% p.a. from the date of invoice till the
date of filing of the suit. However, invoices did not contain a
stipulation regarding payment of interest. Parties to the suit
have not agreed on the rate of interest. This transaction, being a
commercial transaction, it would be just and proper to grant the
interest at the rate at which moneys are lent or advanced by
Nationalized banks in relation to the commercial transaction.
Therefore, taking into consideration, the nature of the
transaction, it would be just and proper to award interest @
12% p.a. on the principle outstanding amount from the date of
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invoice till its realization. Issue No.3 is answered accordingly.
Issue No.4
28. Conspectus of above all discussion is that the
plaintiff has proved the suit claim and is therefore entitled to the
decree as per final order. In the result, following order:
ORDER
1. Suit is partly decreed with costs.
2. Defendant shall pay an amount of Rs.5,58,054/(Rs.
Five Lacs FiftyEight Thousand and FiftyFour only) to
the plaintiff along with interest at the rate of 12% p.a.
from 12/09/2017 till its realization within two months
from the date of this order.
3. Decree thus follows.
03/02/2023 S.U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
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Dictated on : 03/02/2023
Transcribed on : 07/02/2023
Signed on : 15/02/2023
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
15/02/23 at 04.20 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
03/02/2023
Judgment and order signed by P.O. 15/02/23
Judgment/order uploaded on 15/02/23
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