Final Order 1

Order Details: Other
Pdf Text: SJ No.100196 / 2019,
Orbit – Om Biomedic
Order
1 of 16
City Civil and Sessions Court, Mazgaon, Greater Mumbai
Court Room No. 31 – Commercial Court
MHCC010067432019
SJ Filed :
19.06.2019
Arguments Heard :
03.03.2025
Decided on :
17.03.2025
Duration : 05 Y, 08 M, 26 D
Summons for Judgment No. 100196 / 2019
from
Commercial Suit No. 100723 / 2021
Plaintiff : M/s. Orbit Impex
VERSUS
Defendants 1 M/s. OM Biomedic Pvt. Ltd.
2 Rohit Bhatia
Appearances
Plaintiff
: Adv. Paras Vira
Adv. Mittal Vira
Defendants
: Adv. Siddhi Vadke
Adv. Ashwin Singh
CORAM : H. H. JUDGE SACHIN B. BHANSALI
COURT ROOM NO.31.
DATE : 17.03.2025
***************************************************************
ORDER
1) This Summons for Judgment has been filed seeking Judgment
-- 1 of 16 --
SJ No.100196 / 2019,
Orbit – Om Biomedic
Order
2 of 16
against the defendants jointly and / or severally to pay the plaintiff a
sum of Rs. 4,62,259/- as per the Particulars of Claim annexed at Exh. ‘G’
to the Plaint together with interest @ 24 % p. a. on Rs. 2,68,260/- from
the date of filing of the Suit till payment and or realization with costs.
2) The cause of action in the present Suit is based on two separate
invoices Dt.22.04.2015 and 23.04.2015 (Exh. B1 and Exh. B2), which
have been raised by the plaintiff upon the defendant No. 1 and
guaranteed by the defendant No. 2. Since there was default in the
payment of goods supplied to the defendants, initially a Summary Suit
No. 896/2018 was filed. Subsequently, the Registry of this Court has
converted the said suit to Commercial Suit No.723/2021. In the
aforesaid background, present Commercial dispute has been filed and
decree is sought against the defendants in the Summons for Judgment.
3) Brief facts:
a) Plaintiff is a registered partnership firm.
b) Plaintiff is doing business of importers and exporters of
indenters of Chemicals and Pharmaceuticals in the name and
style of
M/s. Orbit Impex and
M/s. Orbit Lifescience Pvt. Ltd.
and having their registered office at 7th floor, Mehta Mahal,
15th Mathew Road, Opera House, Mumbai 400 004.
c) According to the plaintiff, Defendants placed Purchase Orders
as;
Date Purchase
Order No.
Description of
goods.
Rate
per Kg.
Quantity
16.04.2015 RM150015 Dextro
Methorphan
HBR BP/IP
6350/-
+
CST @
2%
5.000
Kg.
-- 2 of 16 --
SJ No.100196 / 2019,
Orbit – Om Biomedic
Order
3 of 16
16.04.2015 RM150016 Cefixime
Trihydrate
IO/BP/USP
9250/-
+
CST @
2%
25.000
Kg.
d) Accordingly, plaintiff supplied aforesaid goods vide Invoices
as,
Date Invoice
No.
Amount
Rs.
Consignment
No.
Date
22.04.2015 0014 235875/- 8178168 23.04.2015
23.04.2015 0015 32385/- 3355665 20.04.2015
e) Aforesaid goods were delivered by the plaintiff through
transporter
M/s. Vijay Lakshmi Transport Company, vide
aforesaid consignments at the site address of the defendants
vide Consignment Note No. 8178168 Dt. 23.04.2015 and
another Consignment Note No. 3355665, Dt. 20.04.2015
(Exh. C1 and Exh. C2).
f) It is further contended that, defendants while accepting the
goods did not make any dispute in respect of quality, quantity
and rates of the received goods. However, defendants failed to
make the payments.
g) The plaintiff through their Advocate issued Legal / Demand
Notice Exh.‘D’ Dt. 22.08.2017 and called upon the defendants
to clear the outstanding dues.
h) Despite having received intimation of the postal
consignments, the defendants did not claim said Notice.
i) Plaintiff instituted the Summary Suit against the defendants
and is seeking decree for a sum of Rs. 4,62,259/- along with
interest @ 24 % p. a. on Rs. 2,68,260/- till realization.
-- 3 of 16 --
SJ No.100196 / 2019,
Orbit – Om Biomedic
Order
4 of 16
4) Defendants have been served with the Writ of Summons vide
Affidavit of Service Exh.2. They accordingly, appeared through their
counsel.
5) Plaintiff has filed this Summons for Judgment on 19.06.2019.
Defendants’ Contentions:
6) The defendants, vide Affidavit in Reply Dt. 05.04.2022, are seeking
leave to defend on the grounds stated as under :
i. Plaintiff’s Suit is false, frivolous and filed with an intention to
defame the defendants.
ii. The defendant No. 1 company had business dealing with
M/s.
Orbit Lifescience Pvt. Ltd. and Purchase Orders (Exh.A1 & A2)
were issued to
M/s. Orbit Lifescience Pvt. Ltd. and not to the
present plaintiff,
M/s. Orbit Impex.
iii.
M/s. Orbit Lifescience Pvt. Ltd. is a sister concern of the
plaintiff company.
iv. An amount of Rs. 7,28,815/- was outstanding against
M/s.
Orbit Lifescience Pvt. Ltd., and it was agreed and decided
between the defendants and
M/s. Orbit Lifescience Pvt. Ltd.
to supply aforesaid goods by
M/s. Orbit Lifescience Pvt. Ltd.
to the defendants.
v. The outstanding amount of Rs.7,28,815/- was to be adjusted
against the material/goods supplied to the defendants by
M/s. Orbit Lifescience Pvt. Ltd.
vi. The defendants immediately approached Mr. Janak J. Gandhi
and appraised him of the fact that the goods were supplied by
the plaintiff, and Mr. Gandhi assured them that the goods
-- 4 of 16 --
SJ No.100196 / 2019,
Orbit – Om Biomedic
Order
5 of 16
were delivered through the plaintiff due to taxation issues.
Mr. Gandhi assured the defendants that the amount under
both invoices will be adjusted from the account of
M/s. Orbit
Lifescience Pvt. Ltd.
vii. Plaintiff has
malafidely delivered the goods with the name of
M/s. Orbit Impex and filed this false and frivolous Suit, to
extort money from the defendants.
viii. The defendants repeatedly contacted
M/s. Orbit Lifescience
Pvt. Ltd. for reconciliation of account and for the outstanding
amount. However, officials of the plaintiff always kept
delaying the said issue.
ix. Plaintiff never approached defendants to solve their issues of
reconciliation of the account.
x. The defendants raised an issue with respect to competency of
this Court to entertain, try and decide the present Commercial
dispute in as much as the Purchase Orders specifically
mention about any dispute would be subject to the
jurisdiction of Haridwar Court.
xi. The defendants further contended that, the Suit filed by
plaintiff is hopelessly barred by the law of limitation.
Hence, the defendants are seeking unconditional leave to defend.
7)
Points for determination :
I have Perused Record and Proceeding. Heard the Learned Counsels.
Points for determination, findings and reasons are as follows :
Points
Findings
1. Is plaintiff entitled for Summons
for Judgment?.............................. In the Negative.
-- 5 of 16 --
SJ No.100196 / 2019,
Orbit – Om Biomedic
Order
6 of 16
2. Are defendants entitled for Leave
to Defend?.......................…..…… As per final order.
3. What Order? …………………… As per final order.
R E A S O N S
Reasons as to Point No. 1 to No. 3 :
8) All points being interconnected, are taken together for discussion.
9) Written as well as Oral Submissions:
i. Learned Advocate appearing for the plaintiff submitted that, the
defendants filed Notice of Motion No. 104542/2023 for Return of
Plaint under Order 7 Rule 10 of the Code of Civil Procedure, 1908 (in
short, “CPC”) on the ground that, this Court has no territorial
jurisdiction. The Court by an Order Dt. July 20, 2024 has been rejected
the said Motion holding that, this Court has territorial jurisdiction to
entertain, try and decide the Suit. In view thereof, the defendants at
later stage in the same proceeding and while seeking leave to defend
the suit, is not entitled to raise the said issue.
ii. Learned Advocate further submits that, there are Purchase Orders
from the defendants followed by supply of goods under invoices and
therefore the Suit is filed under Order 37 Rule 1 of CPC.
iii. Learned Advocate further submits that the defence as raised by
the defendants is false, frivolous and vexatious and therefore the
Summons for Judgment may be allowed, leave to defend may not be
granted to the defendants and the decree as prayed may be passed
with costs.
-- 6 of 16 --
SJ No.100196 / 2019,
Orbit – Om Biomedic
Order
7 of 16
iv. Per contra, Learned Advocate for the defendants submits that,
this Court while entertaining and deciding the Summons for Judgment
can also decide the issue with respect to territorial jurisdiction of this
Court though the Notice of Motion filed by the defendants was rejected
by this Court vide Order Dt. 20.07.2024, as the same was filed under
Order 7 Rule 10 of CPC.
v. Learned Advocate for the defendants further submits that, the
defendants have made out a case for grant of unconditional leave to
defend the present Suit, as can be seen from the Purchase Orders (Exh.
A1 and A2). Learned Advocate further submits that, the defendants did
place Orders to supply goods to
M/s. Orbit Lifescience Pvt. Ltd,
whereas the goods were supplied by the plaintiff,
M/s. Orbit Impex.
According to Learned Advocate, when the defendants had not placed
any order to the plaintiff to supply goods to them, the question of
supply of goods by the plaintiff to the defendants and making payment
by the defendants to the plaintiff did or do not arise, as there was/is no
privity of contract between the parties to the Suit. Learned Advocate
therefore urges that, the Summons for Judgment filed by the plaintiff
may be dismissed and an unconditional leave to defend the Suit by
these defendants may be acceded.
10) Admitted Facts :
Purchase Orders (Exh.A1 & A2) were issued in the name of
M/s. Orbit
Lifescience Pvt. Ltd. for supply of goods.
Goods mentioned under purchase Orders (Exh.A1 & A2) were
delivered by the plaintiff under Invoices No.0014 and 0015. (Exh.B1
& B2).
M/s. Orbit Lifescience Pvt. Ltd. is a sister concern of Plaintiff and both
have their registered office at 7th floor, Mehta Mahal, 15th Mathew
-- 7 of 16 --
SJ No.100196 / 2019,
Orbit – Om Biomedic
Order
8 of 16
Road, Opera House, Mumbai 400 004.
Defendants neither paid the price of goods supplied nor returned
goods to the plaintiff.
Defendants did not place any order to supply goods to the plaintiff; it
was placed to
M/s. Orbit Lifescience Pvt. Ltd.
11) Principles on Summons for Judgment and Leave to Defend :
The Hon’ble Supreme Court in IDBI Trusteeship Services Ltd. Vs.
Hubtown Ltd., (2017) 1 SCC 568 reiterated the principles on Order 37
of the CPC,
vide Para. No. 17 to 17.6 which are as follows :
17. Accordingly, the principles stated in para 8 of Mechelec
Case will now stand superseded, given the amendment of
Order 37 Rule 3 and the binding decision of four Judges in
Milkhiram case, as follows :
17.1. If the defendant satisfies the court that he has a
substantial defence, that is, a defence that is likely to succeed,
the plaintiff is not entitled to leave to sign judgment, and the
defendant is entitled to unconditional leave to defend the
suit.
17.2. If the defendant raises triable issues indicating that he
has a fair or reasonable defence, although not a positively
good defence, the plaintiff is not entitled to sign judgment,
and the defendant is ordinarily entitled to unconditional leave
to defend.
17.3. Even if the defendant raises triable issues, if a doubt is
left with the trial judge about the defendant’s good faith, or
the genuineness of the triable issues, the trial judge may
impose conditions both as to time or mode of trial, as well as
payment into court or furnishing security. Care must be taken
to see that the object of the provisions to assist expeditious
disposal of commercial causes is not defeated. Care must also
be taken to see that such triable issues are not shut out by
unduly severe orders as to deposit or security.
17.4. If the defendant raises a defence which is plausible but
improbable, the trial judge may impose conditions as to time
-- 8 of 16 --
SJ No.100196 / 2019,
Orbit – Om Biomedic
Order
9 of 16
or mode of trial, as well as payment into court, or furnishing
security. As such a defence does not raise triable issues,
conditions as to deposit or security or both can extend to the
entire principal sum together with such interest as the court
feels the justice of the case requires.
17.5. If the defendant has no substantial defence and / or
raises no genuine triable issues, and the Court finds such
defence to be frivolous or vexatious, then leave to defend the
suit shall be refused, and the plaintiff is entitled to judgment
forthwith.
17.6. If any part of the amount claimed by the plaintiff is
admitted by the defendant to be due from him, leave to
defend the suit (even if triable issues or a substantial defence
is raised), shall not be granted unless the amount so admitted
to be due is deposited by the defendant in court.
12) In view of the principles laid down by the Hon’ble Apex Court
supra, I have examined the facts and material placed on record qua
granting or refusing Summons for Judgment and leave to defend as per
points referred
infra.
13) Privity of Contract Between Parties :
(i) Purchase Orders to
M/s. Orbit Lifescience Pvt. Ltd. a sister concern:
Admittedly, the defendants by Purchase Orders (Exh.A1 & A2) placed
Orders to
M/s. Orbit Lifescience Pvt. Ltd., a sister concern of the
plaintiff.
(ii) Supply of Goods by Plaintiff-
M/s. Orbit Impex:
The plaintiff in response to the said Purchase Orders, supplied goods to
the defendants under two Invoices (Exh.B1 & B2).
(iii) Delivery of Goods through Transporter:
-- 9 of 16 --
SJ No.100196 / 2019,
Orbit – Om Biomedic
Order
10 of 16
Defendants without any complaint and objection accepted the delivery
of the goods supplied by the plaintiff through one
M/s. Vijay Lakshmi
Transport Co. at its site under Consignments Dt.23.04.2015 and
20.04.2015 (Exh.C1 & C2).
iv) Demand Notice :
The plaintiff issued Demand Notice on 22.08.2017 (Exh.D) through its
Advocate, calling upon the defendants to pay the price of the goods
lying outstanding against them. The defendants despite getting
intimation, did not claim the Notice. Indeed, the defendants had an
opportunity to respond to the said notice raising a grievance that the
purchase Orders (Exh.A1 & A2) though placed to the sister concern of
the plaintiff, the plaintiff supplied the goods under two Invoices Dt.
22.04.2015 and 23.04.2015 (Exh.B1 & B2) and the defendants
therefore, were / are under no obligation to pay the price of the
supplied goods.
v) Conduct of Defendants :
The defendants remained passive for almost seven years after delivery
of goods, which is improbable for a business entity engaged in
commercial activities.
vi) Except bare interested words of the defendants, there is nothing on
record to demonstrate that defendants at any point of time prior to
filing their Affidavit in Reply to Summons for Judgment put forth their
grievance qua delivery of goods supplied by the plaintiff to Janak J.
Gandhi and adjustment of accounts. In view thereof, now at such
belated stage, it does not lie in the mouth of the defendants to contend
contrary to their acts, deeds and conduct, which they did by accepting
-- 10 of 16 --
SJ No.100196 / 2019,
Orbit – Om Biomedic
Order
11 of 16
the delivery of the goods so supplied by the plaintiff.
In view of above discussion, it is evident that the plaintiff on
preponderance of the probabilities, has demonstrated the privity of the
contract between itself and the defendants qua supply of goods as
aforesaid. Hence, I hold that the Suit falls within the purview of the
Order 37 Rule 2 (a) (i) of CPC.
14) Defendants’ probable Defence:
Defendants by Affidavit in Reply Dt. 05.04.2022 raised twofold defence.
15) It is pertinent to note that the learned Advocate for the plaintiff
places reliance upon the case of Siyaram Silk Mills Ltd. Vs. Tessival S. P.
A., 2005 (2) All MR 818 in which Para No. 18 reads as follows :
18. The learned counsel for the defendant vehemently argued
that once the Court comes to the conclusion that there is a
triable issue raised by the defendant, then the defendant is
entitled to unconditional leave. The purport of Order XXXVII
does not appear to be so. In a given case, more than one
issues may arise and if any one of the issues is held to be
triable, that by itself would not entitle to the Defendant to
have an unconditional leave. In the present case, the issue is
relating to jurisdiction and supply of defective goods may
arise after the Written Statement is filed by the defendant. On
seeing the affidavit for leave to defend, what this Court finds
is that the defendant has in clear terms accepted the delivery
of the consignment of goods as per the invoices. The
admission is clear from the correspondence when the
defendant disputes the quality of goods which have been
supplied and, therefore, to that extent, this Court is inclined
to grant conditional leave to the defendant to defend the suit.
16) In view of above observations, and after perusing the record, this
Court finds that the defendants though admit delivery of goods from the
-- 11 of 16 --
SJ No.100196 / 2019,
Orbit – Om Biomedic
Order
12 of 16
plaintiff, raised an issue of not placing Purchase Orders (Exh.B1 & B2)
upon the plaintiff but to its sister concern and just to have an
adjustment of a taxation issue, they supplied the goods through
plaintiff.
17) Another issue is with respect to an adjustment of accounts with
plaintiff’s sister concern-
M/s. Orbit Lifescience Pvt. Ltd. The defendants
contended that an amount of Rs. 7,28,815/- was outstanding against
M/s. Orbit Lifescience Pvt. Ltd. They with an intention to get their
accounts adjusted / settled, placed Purchase Orders (Exh.A1 & A2) to
M/s. Orbit Lifescience Pvt. Ltd., which go to show that defendants have
set out a probable defence to plead before the Court.
18) In this view of the matter, claiming interest @ 24% p.a. on the
amount under Invoices would also be in question. Hence, the Summons
for Judgment cannot be entertained and the defendants are required to
grant conditional leave to defend.
19) It is further to note that the defendants have disputed the Suit
transaction, the question of claiming interest @ 24 % p.a. over the
amount shown in the Plaint would again be a disputed issue. Here also,
defendants have a probable defence to make.
Issue of Limitation :
20) It is seen that pursuant to Purchase Orders Dt.16.04.2015 (Exh.A1
& A2), they delivered the goods to the defendants under two Invoices
Dt.22.04.2015 and 23.04.2015 (Exh.B1 & B2) through consignments
Dt.23.04.2015 and 20.04.2015 (Exh.C1 & C2). As per Purchase Orders,
the defendants within 45 days were to make the payment of goods.
-- 12 of 16 --
SJ No.100196 / 2019,
Orbit – Om Biomedic
Order
13 of 16
However, as per Invoices (Exh.B1 and B2) the credit period of 90 days
was provided to the defendants. The suit is filed on 17.07.2018.
However, in the peculiar facts and circumstances of the case, it is
crystallized that the issue of limitation in this case is a mixed question
of law and facts and can be decided only after trial by framing issues
and leading evidence by the parties.
Commercial Dispute :
21) This is a dispute between two commercial entities. It is filed with
respect to recovery of the price of goods supplied by the plaintiff and
delivered to the defendants. Hence, the said dispute certainly comes
within the ambit of Section 2(c) of the Commercial Courts Act,2015.
Res-Judicata between Two Stages in the same proceeding :
22) It is evident that the Notice of Motion No. 104542/2023 filed by
the defendants for Return of Plaint under Order 7 Rule 10 CPC for want
of territorial jurisdiction of this Court, was rejected by the Court vide
Order Dt. 20.07.2024.
23) By the present leave to defend / affidavit in reply Dt. 05.04.2022,
again the defendants have agitated / raised the said issue of territorial
jurisdiction of this Court to entertain, try and decide the suit.
24) For that purpose, I am guided by the decision of the Hon’ble
Supreme Court in the case of Prahlad Singh Vs. Sukhdev Singh, (1987)
1 SCC 727, wherein it was held as under :-
The principle of res judicata applies also as between two
stages in the same litigation to this extent that a court,
whether a trial court or a higher court having at an earlier
stage decided a matter in one way will not allow the parties
-- 13 of 16 --
SJ No.100196 / 2019,
Orbit – Om Biomedic
Order
14 of 16
to re-agitate the matter again at a subsequent stage of the
same proceedings.
25) In view of the preposition of law enunciated from the cited case
supra, the issue with respect to territorial jurisdiction of this Court has
already been answered by this Court while deciding the Notice of
Motion No. 4542/2023 taken out by the defendants for Return of Plaint
under Order VII Rule 10 of CPC and now by way of the present Leave to
Defend, the defendant again raises the same issue at later stage in the
same proceedings. Therefore, the issue which has already been agitated
cannot be re-agitated at later stage in the same proceeding, as it hits by
the principle of res judicata. Hence, the submission to the effect as
canvassed by the learned advocate for the defendants is discarded.
26) For the forgoing discussions, it is crystallized that the defendants
have admitted delivery of goods, making no payment of the price of the
delivered goods, the defendants can be granted conditional leave,
subject to deposit of Rs.4,62,259/- (Rs. Four Lakh Sixty Two Thousand
Two Hundred and Fifty Nine only). Therefore, Points No.1 and 2 are
answered accordingly and to answer point No.3, I pass following order :
ORDER
1. The Summons for Judgment No.196/2019 is dismissed.
2. The defendants are granted conditional leave to defend the
Suit on condition that the defendants shall deposit
Rs.4,62,259/- (Rs. Four Lakh Sixty Two Thousand Two
Hundred and Fifty Nine Only) in this Court within a period of
60 days from today.
3. On deposit of the said amount, the Registry of the Court shall
invest the deposited amount in any Nationalized Bank as per
rules.
-- 14 of 16 --
SJ No.100196 / 2019,
Orbit – Om Biomedic
Order
15 of 16
4. On failure of the defendants to deposit the amount and to file
Written Statement within stipulated 60 days as directed by
the Court, the plaintiff would be entitled to a Judgment and
decree as prayed for.
5. Dictated and pronounced in open Court.
6. Record of Summons for Judgment No. 196/2019 shall be part
of Commercial Suit No.723/2021.
Mumbai
Dated : 17.03.2025
(Sachin B. Bhansali)
District Judge,
Court Room No.31 - Commercial Court,
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
Visit ecourts.gov.in for updates or download mobile app “eCourts Services” from Android
or iOS
-- 15 of 16 --
SJ No.100196 / 2019,
Orbit – Om Biomedic
Order
16 of 16
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
20.03.2025 5.10 p.m. Prachi Y. Potdar
Stenographer - Grade I
Name of the Judge HHJ Shri. S. B. Bhansali
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
17.03.2025
Judgment/order signed by P.O on 20.03.2025
Judgment/order uploaded on 20.03.2025
-- 16 of 16 --