Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment in Suit No. 1550 of 2021 1
MHCC010067882018
Presented on : 07-06-2018
Registered on : 24-08-2018
Decided on : 12-10-2023
Duration : 5 Yr, 4 M, 5 D
IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
SHORT CAUSE SUIT NO.1550 OF 2021.
Exh. 13.
M/s. Boettcher (India) Pvt. Ltd. ]
Through its Authorised Signatory ]
Mr. Joel Santiago Lopes. ]
Having address at Gala No.14 & 15 ]
Flora Hotel Compound, Village Devdal ]
Chinchoti Bhivandi Road, Vasai (E) ]
Thane – 401 503. ]....Plaintiff.
Vs.
M/s. Prism Art Printers ]
A Company Incorporated under ]
Indian Companies Act 1956 ]
Having its registered office, ]
151/A 1, Shah & Nahar Industrial Estate, ]
Lower Parel, Mumbai – 400 013. ]….Defendant.
Appearance:
Adv. Mr. Pankaj Dubey for the plaintiff.
Defendant – Exparte.
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Judgment in Suit No. 1550 of 2021 2
SUIT FOR RECOVERY OF MONEY
Coram : Shri. U.C.Deshmukh.
Judge.
CR No. : 59.
Date :12th October, 2023.
ORAL JUDGMENT
This is suit for recovery of an amount of Rs. 57,137/- with
interest at the rate of 21% p.a.
Brief facts of the plaintiff’s case is as under :
2. The plaintiff contends that it is manufacturer and supplier
of printing rollers and chemicals. The defendant was associated with
plaintiff’s company, purchased products from the plaintiff.
3. It is specific case of the plaintiff that the defendant in the
month of June 2012 has purchased the goods from the plaintiff which
were mentioned ledger book of the defendant, maintained by the
plaintiff. The plaintiff has submitted debit notes dated 29.06.2012.
The plaintiff specifically contends that the defendant has paid an
amount of Rs. 15,750/- on 31st March, 2018 itself. The defendant is
liable to pay an suit amount with interest as claimed. Hence, this
Suit.
4. Prior to the discuss the merets of the case, it is necessary
to note that initially the suit was registered as Summary Suit.
Thereafter, the plaintiff applied for summons for judgment vide
Summons Judgment No. 119 of 2019 which was rejected by the Court
28th of City Civil Court at Bombay vide Order dated 23rd March, 2021.
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The defendant was directed to submit his written statement on or
before 08.06.2021. consequently the matter was transferred to this
Court. However, the defendant failed to file his written statement.
Hence, suit is proceeded without written statement of the defendant as
per order dated 9th January, 2023.
5. Thereafter, the plaintiff examined one Joel Santiogo
Lopes, as PW 1 at Exh 2 and also filed documents at Exh. 3 which are
marked as follows
Sr.No. Documents Exhibit Nos.
1. Original copy of Authority
Letter dated 14.03.2018.
Exh. 4
2. Original copies of 1st Debit Note
dated 29.06.2012.
Exh.5
3. Original Copies of ledger
account of the defendant.
Exh. 6
4. Original copies of demand
Notice dated 29.03.2018.
Exh. 7
5. Original copy of the postal
receipt.
Exh.8
6. Original Copy of A D Card Exh. 9
7. Original Copy of the postal
receipts.
Exh. 10
8. Original copy of A.D. Card Exh. 11
6. The plaintiff closed its evidence vide pursis at Exh.12. It is
contention of the plaintiff that the defendant failed to resist the suit by
filing written statement. Hence, suit be decreed as claimed.
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Judgment in Suit No. 1550 of 2021 4
7. Considering the facts, evidence and law applicable to the
case, following points arise for determination.:
Sr. No. POINTS FINDINGS
1. Does the plaintiff prove that he is
entitled to recover an amount of
Rs.57,137/-with interest at the
rate of 21% p.a. from the date of
the suit?
..No..
2. Whether the suit is within the
limitation?
..No..
3. What order and decree? Suit is dismissed
REASONS
As to point Nos
8. At the outset, it is necessary to note that the defendant
failed to file written statement, hence, there is no reason to discard the
case of the plaintiff at threash-hold. However, it has necessary to see
that whether the plaintiff has succeeded to prove its case. In support of
the its case, the plaintiff has filed documentary evidence in form of
minute book dated 05.09.2014 and copies of debit notes dated
29.06.2012. It has also filed copy of ledger account and copy of
demand notice dated 29th March 2018. No documentary evidence was
produced on record to show that the plaintiff has delivered the goods,
as it claimed, to the defendant.
9. The plaintiff has examined one Joel Santiago Lopes at
Exh. 2 where he deposed in verbatism as pleaded in the plaint. It is
significant to note that Mr. Joel Santiogo Lopes is silent as to the part
payment at the instance of the defendant on 31st March, 2018 as
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Judgment in Suit No. 1550 of 2021 5
pleaded in plaint. It is specific submission of the Ld. advocate for the
plaintiff that considering the date of the part payment on 31.03.2013
the suit instituted on 07.06.2018 is within limitation. He placed
reliance upon the decision of Hon’ble High Court in M/s. Oil and
Natural Gas Corporation Ltd V/s. Essar Oil Limited in Arbitration
Petition No. 267 of 2011.
9. Keeping in mind, the observation of Hon’ble High Court in
aforesaid decision it has to see whether the suit is within limitation. To
buttress its contention, the plaintiff filed on record the copy of ledger
account at Exh. 6 and copies of debit note at Exh.5. The debit note at
Exh. 5 show that on 29th June, 2012 the plaintiff has delivered goods
worth of Rs. 62,678/- and Rs.10,209/-. The entry of debit note is
taken to the ledger account at Exh. 6. The debit note and ledger
account are maintained by the plaintiff. It is mentioned in the debit
note and ledger account that Form No ‘C’ was not received what was
the form ‘C’ is not made it clear by the plaintiff. In short there is no
evidence on record to show that the goods are delivered by the
plaintiff to defendant, apart from the debit note and ledger account.
The plaintiff ought to have produce any receipt issued by the
defendant or any other proof of delivery of goods.
11. So far as the ledger account at Exh. 6 is concerned, it
show that at the end of June 2012 the balance amount of Rs.
6,20,944/- is mentioned. However, considering the contents of ledger
account, if it is presumed that the defendant is liable to pay an amount
of Rs. 72,887/-. Hence, it has see whether the defendant is liable to
pay said amount. It is specific case of the plaintiff that goods were
delivered in the month of June 2012. No specific period is asserted by
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Judgment in Suit No. 1550 of 2021 6
the plaintiff for repayment of goods. In such circumstances, the
defendant ought to have pay the price of the goods within three years
of the delivery of the goods within the meaning of Article 14 of the
Limitation Act.
12. It is specific contention of the ld. advocate for the plaintiff
that the Hon’ble High Court in M/s. Oil (Supra) has observed that
when party acknowledged the liability by making part payment.
Further period of limitation will begin. The observation of Hon’ble
High Court in aforesaid para No. 77 are reproduced as under :
“ The Court in the case of CMC Ltd. Mumbai vs. Unit Trust
of India (Supra) has held that once the cause of action has
commenced when the breaches were alleged to have been
committed by the party. Such cause of action would not
stop in view of Section 9 of the Limitation Act there is any
part payment made by the other party or the liability is
acknowledged. The Division Bench of the Court in the case
of Avalon Investment Pvt Ltd v/s Mukesh Brokerage and
financial Ltd (supra). After adverting to Section 9 of the
Limitation Act has held that once the cause of action had
arisen. It did not stop subsequently and once limitation has
begun to run upon the accrual of the cause of action. It
would run continuously and it crease to run when the
party commences legal proceedings in respect of the cause
of action to question. It is further held that limitation
stopped running in respect of the counter claim only when
the party lodged the counter claim with the arbitral
tribunal. It is held that exchange of correspondence does
not extend the period of limitation and can be extended
only if there is part payment or acknowledgment of liability.
13. In the light of observation of Hon’ble Supreme Court
reference to the Section 9 and 20 of The Limitation Act is essential.
Hence, those are reproduced as under :
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Section 9. Continuous running of time – where once time
has begun to run, no subsequent disability of inability to
institute a suit or make an application stops it.
Provided that, whether letters of administration to the
estate of a creditor have been granted to his debtor, the
running of the period of limitation for a suit to recover the
debt shall be suspended while the administration continuous.
Section 20. Effect of acknowledgment or payment by
another person -(1) The expression “agent duly authorized on
this behalf” in sections 18 and 19 shall, in the case of a
person under disability, include his lawful guardian,
committee or manager or an agent duly authorized by such
guardian, committee or manager to sign the acknowledgment
or make the payment.
(2) Nothing in the said sections renders one of several joint
contractors partners, executors or mortgagees chargeable by
reason only of a written acknowledgment signed by, or of a
payment made by, or by the agent of, any other or others of
themselves
(3) For the purpose of the said sections
(a) an acknowledgment signed or a payment made in
respect of any liability by, or by the duly authorised agent of,
any limited owner of property who is governed by Hindu law,
shall be a valid acknowledgment or payment as the case may
be, against a reversioner succeeding to such liability, and
(b) where a liability has been incurred by or on behalf of
the a Hindu undivided family as such, an acknowledgment or
payment made by, or by the duly authorised agent of, the
manager of the family for the time being shall be deemed to
have been made on behalf of the whole family.
14. Conjoint effect of the observation of Hon’ble High Court in
aforesaid case laws and the provisions of the Limitation Act is that
once the limitation period begin, it does not stop. The part payment of
the liability begins the fresh period of limitation and it shall be
computed from the time when the part payment was made. It is case
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of the plaintiff that the defendant made part payment of liability of
31st March, 2018. At the cost of repetition, it is apt to mention that the
witness of the plaintiff does not depose this fact on oath. Therefore,
the fact of part payment of the plaintiff is without proof.
15. It is submission of the Ld. advocate for the plaintiff that
ledger account fortify the contention of the plaintiff that the defendant
has made part payment on 31st March, 2018. Even, for the sake of
discussion, if it is presumed that the defendant has made part payment
against his liability on 31st March, 2018, then also suit would be
beyond the period of limitation prescribed under Article 12 of The
Limitation Act. The plaintiff ought to have instituted the suit on or
before 31st December 2015 or the defendant ought to have made part
payment on or before such date. In that situation, the suit would
have been within the limitation if it had instituted on or before 31st
December 2018. The suit is instituted on 7th June, 2018. The
defendant has not made part payment within such period of
limitation. Therefore, it cannot be said that the fact that the defendant
made part payment on 31st March, 2018 brings the suit within the
limitation.
16. At the cost of repetition, it is noted that the plaintiff has
not adduced any evidence on record to fortify his contention that he
delivered the goods. His witness is silent as to the part payment made
by the defendant. It impliedly suggest that the contents of the ledger
account and debit note are concocted. Hence, the plaintiff failed to
prove his case. Accordingly, point Nos. 1 & 2 are answered.
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Judgment in Suit No. 1550 of 2021 9
17. The plaintiff failed to prove its case. Hence, it is just and
proper to direct him to bear its own cost. Accordingly, in answer to
point No. 3, following order is passed :
ORDER
1. Suit No 1550 2021 is dismissed.
2. Suit No. 1550 of 2021 is disposed off accordingly.
3. No order as to costs.
(Dictated and pronounced in open Court)
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:12.10.2023 Greater Bombay (CR 59)
Declared on : 12.10.2023
Dictated on : 12.10.2023
Transcribed on : 28.10.2023
Checked on : 31.10.2023
Final Print : 10.11.2023
Signed on : 20.11.2023
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
22.11.2022 at 5.00 -p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF
STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.U.C.Deshmukh,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 12.10.2023
Order signed by P.O. on 20.11.2023
order uploaded on 22.11.2023
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