Order 1

Order Details: Other
Pdf Text: Summons for Judgment No. 6/19 1 Order
in Comm.Suit No. 722/21.
MHCC010001832019
Presented on : 05-01-2019
Registered on : 05-01-2019
Decided on : 27-09-2021
Duration : 2 years, 8 months, 22 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
SUMMONS FOR JUDGMENT NO. 6 OF 2019
IN
COMMERCIAL SUIT NO. 722 OF 2021
Premium Transmission Private Limited )
(Previously known as Premium Transmission )
Limited), Premium House, Mumbai Pune Road )
Chinchwad, Pune411019 )...Plaintiff
Versus
Gactel Turkey Projects Limited )
Registered office : Gammon House )
Veer Savarkar Marg, )
Prabhadevi, Mumbai400025 )...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 27th SEPTEMBER, 2021.
Mr. Amit Singh, Advocate for the plaintiff.
Mr. Ramesh Sahu, Advocate for the defendant.
JUDGMENT
1. The plaintiff filed suit for recovery of Rs.29,82,766/ with
interest of Rs.19,42,392/ at the rate of 20% p.a. from the date of
-- 1 of 7 --
Summons for Judgment No. 6/19 2 Order
in Comm.Suit No. 722/21.
default till filing of the suit.
2. It is case of the plaintiff that he is a company registered
under the companies Act, 1956 having its office at Chinchwad, Pune.
The plaintiff is engaged in the business of manufacture, sell and supply
of gear boxes. The defendant is a private limited company carrying on
the same business of gear boxes production having its office at
Prabhadevi, Mumbai. The plaintiff has business transaction with the
defendant since 2011. The plaintiff sold, supplied and delivered gear
boxes to the defendant as per purchase order dated 15/11/2011. The
plaintiff had sold and delivered goods worth Rs.40,89,691/ during
June 2014 to March 2015. The defendant paid Rs.11,06,925/ as a
partial payment of price of goods. As the defendant failed to pay
remaining principal amount of Rs.29,82,766/, the plaintiff issued
notice dated 04/04/2018 under Form 'D' of the Insolvency and
Bankruptcy Code, 2016 (for short 'the Code') to the defendant. The
defendant ignored the notice issued by the plaintiff. The plaintiff
initiated the action against the defendant as per provisions of the Code.
The plaintiff has placed on record the purchase order, invoices, copies
of delivery challans, copies of email dated 20/03/2017 and
24/03/2017. He also filed copies of ledger accounts for the period from
201415 to 201819 and notice in Form 'D'. The defendants were
required to pay the interest at the rate of 20% p.a. on all amounts
remained unpaid one month after delivery of goods as mentioned in tax
invoices. Hence, the plaintiff filed the suit for recovery of principal
amount of Rs.29,82,766/ with interest of Rs.19,42,392/. He also
claimed interest at the rate of 20% p.a. on outstanding amount from the
date of the suit till realization of the amount.
-- 2 of 7 --
Summons for Judgment No. 6/19 3 Order
in Comm.Suit No. 722/21.
3. In this suit, the plaintiff filed Summons for Judgment No.
6/2019. The defendant placed on record affidavit in reply to Summons
for Judgment on 19/12/2018. I have gone through all these documents
including the plaint. Heard learned counsel Shri Amit Singh for the
plaintiff and learned counsel Shri Ramesh Sahu for the defendant.
4. Learned counsel Shri Amit Singh for the plaintiff submitted
that the defendant placed purchase order (Exh.B) in which terms of
payment are mentioned. Goods were supplied and tax invoices were
raised. He relied upon table of invoices in para 5 of the plaint and also
pointed out the invoices filed with list of documents. According to him,
last payment is received on 18/05/2015. As there was summer
vacation in May 2018, the suit is filed on the opening day of the court
after summer vacation i.e. on 04/06/2018. He further submitted that
the suit is well within limitation as per Section 4 of the Limitation Act.
The defendant has raised the issue of limitation in his affidavit in reply.
Learned counsel Amit Singh relied upon the citation of Jatin Koticha
Vs. Vfc Industries Pvt. Ltd. 2008(2) BomCR 155 in which Hon'ble
Bombay High Court considered invoices raised on the defendants as
written contract as mentioned in para 5 of the judgment. He also relied
upon paras no.10, 13 and 21 in the judgment of Hon'ble Bombay High
Court in Writ Petition No. 2694/2018 Olive Tree Trading Pvt. Ltd.
V/s. Filli De Cecco Di Filipro decided on 23/03/2018. By placing
reliance upon these observations, he submitted that Hon'ble High Court
observed in para 21 of this citation that the suit on the basis of the
invoices is maintainable in the summary form. He referred para 10.5 of
the affidavit in reply and submitted that the defendant did not dispute
payment of Rs.11,06,925/. He prayed to allow the summons for
-- 3 of 7 --
Summons for Judgment No. 6/19 4 Order
in Comm.Suit No. 722/21.
judgment and to decree the suit.
5. Learned counsel Shri Ramesh Sahu for the defendant
submitted that the summary suit is filed on 04/06/2018 and there is
apparent delay of two months in filing the plaint from the date of last
invoice i.e. 04/02/2015. Purchase order is not signed by both sides. He
further submitted that the suit is not based on invoices and there is
need of regular trial. The defendant did not admit the liability. He also
pointed out para 10.5 of Affidavit in reply and submitted that the
defendant has specifically stated that nothing is due and payable to the
plaintiff. According to him, goods were not supplied. He referred filing
of the proceeding before NCLT. According to him, arbitration
proceeding is also pending. He further submitted that amount claimed
in the present suit and proceeding before NCLT is in respect of the same
transaction. This matter can be heard after decision in NCLT case. He
stated that emails dated 04/09/2021 and 09/08/2021 have not been
replied by the plaintiff. Two proceedings relating to the same relief are
not maintainable. He prayed for dismissal of summons of judgment.
6. After considering available material on record and rival
submissions, it appears that the defendant is harping upon the issue of
limitation. The defendant has stated in para 10.5 of his affidavit in
reply that total amount of Rs.11,06,925/ is received by the plaintiff.
While asserting payment of this amount, he has not clarified the dates
of payment. The plaintiff has stated in para 5 of the plaint that he
received the said amount and he has also stated tranches of payment
with relevant dates. The plaintiff received amounts of Rs.10,00,000/
and Rs.30,125/ on 18/05/2015. It is contention of learned counsel
-- 4 of 7 --
Summons for Judgment No. 6/19 5 Order
in Comm.Suit No. 722/21.
Mr. Amit Singh that this date can be taken as the date of
acknowledgement of liability by the defendant. Period to file suit for
recovery of amount is counted by the plaintiff from this date.
7. Article 15 in the schedule to the Limitation Act, 1963
prescribes three years limitation for the price of goods sold and
delivered to be paid for after the expiry of a fixed period of credit from
the date of expiry of such credit period. Invoices placed on record
reveals that payment has to be made within period of one month after
delivery failing which interest at the rate of 20% p.a. will be charged. It
means that, one month's period from the date of delivery can be taken
as a credit period for payment within the meaning of Article 15 in the
schedule to the Limitation Act.
8. The plaintiff has filed on record copies of delivery challans
(Ex.D) which are showing that delivery of goods is made on
28/02/2015. If period of one month's passes or lapses from
28/02/2015 without payment of price of goods, limitation to file the
suit will commence. It means that limitation to file the suit will start
from 28/03/2015. Admittedly, summer vacation commences in the
month of May of each year. Therefore, there is prima facie delay in
filing the suit by the plaintiff.
9. Learned counsel Amit Singh for the plaintiff relied upon
Section 18 of the Limitation Act to treat the date of last payment as an
acknowledgement in writing to count the period of limitation. Section
18 of the Limitation Act has specific requirements i.e. acknowledgement
in writing with signature. Therefore, there is less scope to apply Section
-- 5 of 7 --
Summons for Judgment No. 6/19 6 Order
in Comm.Suit No. 722/21.
18 of the Limitation Act to the case in hand. In short, facts of the case
and provisions of the Limitation Act show that there is some substance
in the point of limitation raised by the defendant.
10. In addition to it, the plaintiff has initiated the action before
NCLT. Then, the present suit came to be filed before this court. The
plaintiff has initiated both proceedings for the purpose of recovery of
goods' price. It shows that matter in issue in both proceeding is the
same. There is scope to apply Section 10 of the Civil Procedure Code.
11. Aspect of limitation is the mixed question of fact and law.
Similarly, effect of two legal proceedings is required to be determined
after hearing both sides. In short, there are triable issues involved in
the matter. For this reason, the summary suit cannot be disposed off at
the threshold. The defendant is liable to be allowed to defend the suit
by granting leave unconditionally. Hence, I pass the following order :
ORDER
1. Summons for Judgment No. 6/2019 is dismissed.
2. Leave is granted to the defendant to defend the suit
unconditionally.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
Date : 27/09/2021. Mumbai.
1. Dictated online on : 27/09/2021.
2. Signed on : 27/09/2021.
3. Delivered to Certified :
Copy Section on
-- 6 of 7 --
Summons for Judgment No. 6/19 7 Order
in Comm.Suit No. 722/21.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
27/09/2021. 5.40 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 27/09/2021.
Judgment/Order signed by P.O. on 27/09/2021.
Judgment/Order uploaded on 27/09/2021.
-- 7 of 7 --