Final Order 18

Order Details: Copy of Judgment
Pdf Text: CS No.79 /2019
Executive Vs. Maruti
Judgment 1 of 14
MHCC010068742019 Lodged on : 05.07.2019
Admitted on : 08.08.2019
Decided on : 13.08.2026
Duration : 07 Y : 01 M : 08 D
Exhibit : 76
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON
COMMERCIAL SUIT NO.79 OF 2019
Executive Trading Company Pvt. Ltd.
A company incorporated under the provisions of the
Companies Act, 1956 having its registered office at
G-1, Ashirwad Building, Ahmedabad Street, Carnac
Bunder, Mumbai 400009. Plaintiff
VERSUS
1. Maruti Steel Fab
A partnership firm duly registered under the
provisions of Indian Partnership Act, 1932 having its
registered office at Plot No.9 & 36, B.U. Bhandari
Ind. Estate, Sanaswadi, Tal-Shirur, Pune 412208,
India. And Maruti House, J 60, MIDC Bhosari, Pune
411026, India And #318, 3rd floor, Vardhaman
Market, Plot No.75, Sector 17, Vashi, Navi Mumbai
400703.
2. Deepak C. Bathija
Indian Inhabitant, carrying on his partnership
business at Maruti House, J 60, MIDC Bhosari, Pune
411026, India.
3. Chaturbhuj J. Bathija
Indian Inhabitant, carrying on his partnership
business at Maruti House, J 60, MIDC Bhosari, Pune
411026, India. Defendants
Appearance :
Adv. Arvind Giriraj alongwith Adv.
Anjali Dhoot i/b. Rajani Associates
: For Plaintiff.
Adv. Sanjay Bhojwani : For Defendants
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CORAM : N. B. LAVTE, (C.R.No.31)
DATE : 13.08.2026
***************************************************************
JUDGMENT
(Delivered on this 13th day of August, 2026)
The Commercial Suit is filed for recovery of Rs.8,19,965/- based
on invoice. It is filed by the Director Mr. Pankaj Sureka.
In short, it is the case of plaintiff that:
2. The Plaintiff is a Private Limited Company registered under
the Companies Act, 1956 which is involved in the business of supplying
and trading of Mild Steel Products. The defendant No.1 is a registered
partnership firm and defendant Nos.2 and 3 are its partners. In May
2016 defendant No.1 approached them and placed purchase orders on
12.05.2016. Accordingly goods were supplied and delivered and invoice
an amount of Rs.4,15,502/- was raised. As per invoice, the payment
was to be made immediately after receipt of the goods failing which
24% p.a was chargeable. However, on oral request of defendants, period
of 30 days was granted which was extended to 60 days.
3. The defendant No.1 never raised any dispute as regards to
quality, weight and condition of the goods supplied and the amount
raised in the invoice. However, inspite of several reminders, defendant
No.1 failed to make the payment. Therefore, legal notice Dt.02.03.2017
was issued calling upon defendant No.1 to clear the outstanding
amount of Rs.4,73,924/-. Inspite of receipt of notice, defendants failed
to pay the amount. An application for Pre-Institution Mediation
u/sec.12A of the Commercial Courts Act was filed, however Non Starter
Report was filed on 23.05.2019. Hence, suit.
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4. Pursuant to the issuance of writ of summons, defendants
appeared and filed their Written Statement vide Exh.4 and denied the
entire contents of the plaint in toto. It is their specific defence that they
had placed verbal order with Topworth Pipes and Tubes Pvt. Ltd. (in
short Topworth) @ Rs.30,000/- per ton which material was dispatched
by Topworth. While unloading the material when they checked the
invoice copy, they found the billing was in the name of plaintiff
company. No any bill, acknowledgment, LR Receipt or Delivery Challan
is filed by plaintiff to prove supply of goods.
5. When they inquired with Mr. Ashwin Lodha of Topworth, he
assured to send correct invoice, but failed. After follow up with
Topworth, they received email ID mastersumeet6@gmail.com on
10.06.2016 with an attachment of invoice copy. On 28.06.2016, they
sent reply of which copy was sent to plaintiff about highly charged rates
and requested to send the corrected invoice. In the said email, they
never expressed that payment would be made to plaintiff.
6. They had no any privity of contract with plaintiff and the
material was received from Topworth, therefore, question of agreeing to
terms and conditions does not arise. Objection of charging high rates at
Rs.37,225/- per ton was raised and short fall of 80 kgs of weight. By
email Dt.28.06.2016, plaintiff were requested to send corrected invoice
at the rate of Rs.30,000/- per ton. There was no any direct agreement
between them and plaintiff, therefore the suit is not maintainable. The
suit is also not maintainable for non joinder of parties and misjoinder of
parties. No legal notice was received by them. They have already settled
the matter amicably with Topworth through MOU Dt.19.09.2016
wherein Mr. Ashwin Lodha conveyed them that plaintiff company is
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sister concern of Topworth. The suit is not within limitation. Hence,
dismissal of suit with cost is prayed.
7. In view of pleadings of the parties, my Predecessor framed
issues vide Exh.7. The same are reproduced below on which I have
given my findings alongwith reasons as under:
Sr. ISSUES FINDINGS
1. Do plaintiff prove they supplied goods and are
entitled to recover an amount of Rs.8,19,965/- with
interest from defendant?
Affirmative
2. Whether defendant proves there is no privity of
contract between plaintiff and defendant?
Negative
3. Whether suit is bad for mis-joinder of parties? Negative
4. Whether suit is bad for non-joinder of necessary
parties?
Negative
5. Whether defendant proves supplied material was of
bad quality?
Negative
6. Whether defendant proves that material supplied
was highly charged by plaintiff?
Negative
7. Whether suit is well within limitation? Affirmative
8. What order and decree? As per final
order.
REASONS
8. In order to prove the suit claim, plaintiff filed evidence
affidavit of its Director Mr. Pankaj Rajkumar Sureka (PW1) at Exh.28
and Mr. Rakesh Sharma (PW2) at Exh.56. Reliance is placed on the
following documents namely, certified copy of Board Resolution
(Exh.30), Tax Invoice Dt.12.05.2016 (Exh.31), Mill Test Certificate
(Exh.32), Tax Invoice Dt.12.02.2016 (Exh.33), Original Challan
Receipts (Exh.34 & Exh.35), Office copy of Notice Dt.04.03.2021
(Exh.36), Legal Notice (Exh.37), Authority letter (Exh.57), Photocopy
of relevant extracts of Audit Report in Form 704 under the MVAT
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(Exh.58), Reminder Notice Dt.14.01.2025 (Exh.59). Plaintiff closed his
evidence by filing pursis Exh.55.
9. Whereas, the defendants filed examined its partner Mr.
Deepak Bathija (DW1) vide Exh.38 and Mr. Gaganjot Singh (DW2) vide
Exh.40 and placed reliance on documents namely, Tax Invoice
Dt.12.05.2016 (Exh.60), Original Weight Slips (Exh.61, Exh.62 and
Exh.64), Original Transport Slip (Exh.63), Email Dt.10.06.2016
(Exh.65), Original Memorandum of Understanding Dt.19.09.2016
(Exh.66), Office copy of letter Dt.21.10.2016 (Exh.67), Bank Statement
(Exh.68) and Invoice (Exh.69), Certificate under Sec.65-B of Indian
Evidence Act filed by defendant No.2 (Exh.71), Email Dt.28.06.2016
with postal receipt (Exh.72) and Printout of email Dt.01.07.2016 with
two postal receipts (Exh.73). By filing pursis Exh.74, defendants closed
their evidence.
AS TO ISSUE NOS.1, 5 & 6 :
(As all the issues are interlinked with each other, therefore, to avoid
repetition they are discussed together)
10. It is the case of plaintiff that they sold, supplied and delivered
goods worth Rs.4,73,924/- to defendant. The defendants are admitting
delivery of goods, but have taken defence that they had not given
Purchase Order to plaintiff, but to Topworth, which supplied the goods.
Thus, from the pleadings of the parties, supply of goods is not disputed.
The dispute is as to who had supplied goods to defendants. On this
point, Adv. Giriraj for plaintiff submitted that the goods were ordered by
the plaintiff with Topworth which Topworth supplied and plaintiff in
turn supplied the same to defendants and thereafter raised invoice. The
question of Topworth issuing invoice to plaintiff and plaintiff in turn
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issuing separate invoice to defendants will have no any bearing on the
point of supply of goods. Therefore, according to Adv. Giriraj, the
defendants cannot deny the supply of goods.
11. Adv. Giriraj further submitted that if the defendants had not
received the goods and invoice, there was no any need for them to
claim VAT on the invoice. The defendants cannot blow hot and cold at
the same time by denying the delivery of goods but claiming VAT which
is admitted by witness of defendant in cross examination. On the point
of Memorandum of Understanding (in short, MOU) between
defendants and Topworth, Adv. Giriraj submitted that nowhere MOU
Exh.66 contain details of dispute, reference of invoice or in what respect
the outstanding amount of Rs.25,00,000/- was due. Therefore,
according to him, the MOU will not help the defendants. On the point
of inferior quality of goods and charging higher rate, Adv. Giriraj
submitted that the plaintiff ordered the goods with Topworth and then
sold it to defendants, therefore there is difference of rate which plaintiff
is entitled for doing trade/business. No any Purchase Order or any
invoice is filed by defendants to show they had placed the disputed
order of supply of goods with Topworth. Even no any Ledger Account is
filed showing transaction between defendants and Topworth. Therefore,
adverse inference can be drawn against the defendants. To buttress his
submission, reliance is placed on the following authorities :
1 Union of India Vs. Ibrahim Uddin & Anr., (2012) 8 Supreme Court
Cases 148.
2 Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif & Ors., 1968 SCC
OnLine SC 63.
3 Godrej and Boyce Manufacturing Co. Ltd. Vs. Remi Sales &
Engineering Ltd., 2025 SCC OnLine Bom 5334.
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12. Whereas, Adv. Bhojwani vehemently opposed the submissions
on the ground that the pleadings and the evidence led by the witnesses
of plaintiff, there is variance, as in the plaint there is no any pleading
that the goods were ordered from Topworth and then supplied to
defendants. The order for goods were placed by defendants with
Topworth and accordingly supply was made. When the invoice was
received, it was found that instead of Topworth, the invoice was raised
by plaintiff which was immediately objected by sending email.
Therefore, the subsequent evidence of witnesses of plaintiff regarding
placing order with Topworth is beyond pleading and needs to be
discarded.
13. Adv. Bhojwani further submitted that already the account with
Topworth is settled by defendant in view of MOU executed, therefore,
there is no any amount due and payable to Topworth or the plaintiff.
The plaintiff was involved in issuing false, bogus and fabricated invoices
and case was registered by CBI against them. The alleged due amount is
highly charged as the rate agreed and the rate applied are different, the
VAT was claimed on Rs.2,00,000/- and not on invoice amount. Thus,
there is no any amount due and payable. Hence, prayed for dismissal of
suit.
14. As discussed in the admitted facts, the defendants are not
denying receiving goods but have taken specific defence that they had
placed Purchase Order with Topworth. Therefore, the plaintiff will have
to prove whether the goods were in fact supplied by them to
defendants. In order to prove the same, they have filed on record Tax
Invoice Exh.31 which goes to show that it was issued by Topworth to
plaintiff in respect of purchase of black Mild Steel Pipes. It is
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accompanied with Mill Test Certificate Exh.32. The other invoice Exh.33
(filed by plaintiff) and Exh.69 (filed by defendant) is issued by plaintiff
to defendants in respect of supply of Mild Steel Pipes. The invoice is
accompanied with Delivery Challans Exh.34 and Exh.35 respectively.
The invoice Exh.69 filed by defendant alongwith evidence affidavit of
witness DW1 shows the seal of defendant firm. It was submitted by
Adv. Giriraj that the Delivery Challans and seal of defendants on Exh.69
proves delivery of goods.
15. When Adv. Bhojwani had raised objection about delivery of
goods, Adv. Giriraj apart from Exh.33, Exh.34, Exh.35 and Exh.69
invited my attention to the Audit Report in Form No.704 (Exh.58) and
the admission given by witness of DW1 in cross-examination. From the
perusal of Form No.704 (Exh.58) under MVAT and the admission given
by witness of DW1 in cross-examination wherein he admitted that they
claimed VAT on invoice Exh.33 sent by plaintiff. This admission goes to
show that in lieu of the goods received on credit, VAT credit was
claimed by defendants. Though during the course of argument Adv.
Bhojwani claimed that VAT was claimed only on the amount of
Rs.2,00,000/-, however, I am not impressed with the said submission,
because, if really the defendants had no any business transaction with
the plaintiff, then question of claiming VAT on credit could not have
arise. Therefore, the argument is without any merit.
16. It is also material to note defendants claimed the material
supplied was of inferior quality and the rates were highly charged by
plaintiff. Though the law permits that defendants can raise multiple
defences, however, in view of said defence taken, it can be inferred that
goods were delivered by plaintiff which is already proved vide invoice
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Exh.33 and Exh.69. If really the defendants had purchased the goods
from Topworth, in that event, they would have filed the purchase orders
or the invoice issued by Topworth or the statement of account and lastly
would have examined witness of Topworth to prove the same. However,
no any steps to that effect were taken. Therefore, as rightly argued by
Adv. Giriraj and held in
Union of India and
Gopal (supra), adverse
inference can be raised against defendants for non production of the
material documents.
17. As regards the defence that the goods supplied were of inferior
quality, except bald claim there is no any document filed on record by
the defendants to prove the same. On the contrary, the Mill Test
Certificate Exh.32 goes to show the goods were sold after proper test.
There is no any correspondence on behalf of defendants raising dispute
about the quality of the goods supplied. Adv. Giriraj had submitted that
though the defence of inferior quality goods supplied is raised at
belated stage, however, the goods were not returned and in fact were
consumed. I do find force in the submission, because in cross-
examination witness DW1 categorically admitted that they did not
return any goods. Therefore, if really the goods were of inferior quality,
defendants would have rejected the same and by informing the
plaintiffs would have returned the same which is not done. Even, no
document is filed on record showing objection was raised over quality
of the goods supplied.
18. In
Godrej (supra) the Hon’ble High Court by relying on Sec.42
of Sale of Goods Act held in Para 45 that,
“45. There is nothing in Clause-6(b) which made the Petitioner
entitled to reject the goods even after using them. The present case
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does not involve passing of title in Petitioner’s favour. Situation here
is that the title in the goods had not passed on to the Petitioner as it
had not paid for the same, but it used the tubes in the heat
exchangers. As observed above, Clause-6(b) does not cover the
situation of consumption/use of goods. In that view of the matter,
Clause-6(b) cannot be treated as a variation from statutory concept
of acceptance under Section 42”.
19. Therefore, the defendants utilized the goods supplied and
once the same are utilized, they are bound to pay the amount of the
goods which is held in the above referred authority. Similarly, as
regards the defence of overcharging, on this point Adv. Giriraj had
already explained that the goods were procured from Topworth and
then sold to defendants. Therefore, according to him in trade/business
margin of rate may differ. I do agree with the said submission, because
the goods were procured by plaintiff from Topworth @ Rs.33,000/- per
metric ton and were sold to defendants @ Rs.37,225/- per metric ton.
Therefore, the defence that the goods were charged at higher rate is
devoid of any merit. Hence, the issues are answered accordingly.
AS TO ISSUE NOS.2 to 4 :
(As all the issues are interlinked with each other, therefore, to avoid
repetition they are discussed together)
20. The defendants claimed privity of contract between them and
plaintiff and also challenged the suit on the ground of misjoinder and
non joinder of necessary parties. To prove that there was no privity of
contract between them and plaintiff, except purported MOU Exh.66, not
a single documentary evidence is filed on record to show that they had
placed Purchase Order with Topworth in respect of the goods which is
already held while discussing issue Nos.1, 5 & 6. Even otherwise, after
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going through the purported MOU Exh.66, the contents of which are
reproduced for ready reference are :
MEMORANDUM OF UNDERSTANDING BETWEEN MARUTI STEEL FAB
AND TOPWORTH PIPES AND TUBES PVT. LTD.
Place : Pune Date : 19/09/2016
We both the parties MARUTI STEEL FAB AND TOPWORTH PIPES AND
TUBES PVT. LTD are concern towards full and final settlement of the dues.
MARUTI STEEL FAB is accountable to pay amount Rs.25,00,000/- (Rupees
Twenty Five Lakhs Only)
The above said amount payable by MARUTI STEEL FAB to TOPWORTH
PIPES AND TUBES PVT. LTD is the full and final settlement of the all dues.
Further on both the parties are bound with this MOU. Both the parties will
not file any sue or claim against each other and their partners or Directors
& will not raise any claim or demands, in regards to pending dues in
future.
Both parties will abide by all the conditions of the said MOU.
21. If the contents of the MOU are gone into, it reveals that there
is no any reference of purchase order, supply of goods or balance
amount. The purported MOU is between defendant and Mr. Ashwin
Lodha, Director of Topworth. It is a settlement regarding outstanding
amount of Rs.25,00,000/-. At the cost of repetition, the MOU has no
any reference about the disputed delivery of goods or invoices. As
rightly argued that MOU is between defendants and Topworth and it
has no any reference of purported invoice nor reference of plaintiff. On
the contrary, as discussed while answering issue No.1 that plaintiff
proved delivery of goods, issuance of invoice and defendant’s claiming
VAT credit, therefore, plaintiff proved there was contract between them
and defendants and not between defendants and Topworth. Hence, the
defence of lack of privity of contract is devoid of any merit.
22. Likewise, the defendants are necessary parties and are
properly joined in the suit. As regards non joinder of necessary parties, I
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am of the view that the dispute is between the plaintiff and defendants
over unpaid amount of goods supplied having no any relation with
Topworth as the invoices issued by Topworth in favour of plaintiff were
in turn were issued by them in favour of defendants itself shows that
Topworth is not a necessary party. Hence, issue nos.2 to 4 are answered
in the negative.
AS TO ISSUE NO. 7 :
23. The defendants have challenged the suit on the ground of
limitation. On this point, Adv. Giriraj had submitted that the invoice is
Dt.12.05.2016. As the amount was not paid, hence before filing the suit
mandatory Pre-Institution Mediation application was filed on
13.02.2019 which concluded in Non-Starter Dt. 23.05.2019 therefore
excluding the said period, the suit filed on 05.07.2019 is within
limitation. Gone through the Non-Starter Report Dt.23.05.2019 which
reveals application for Pre-Institution Mediation was made on
13.02.2019 and after issuance of notice, the defendants appeared
through Advocate and filed application on 22.04.2019 that they are not
willing for mediation. Accordingly, the Non-Starter Report came to be
issued. As per Rule 3 (1) of the Commercial Courts Rules, the mediation
period is to be excluded as regards the limitation. If the said period is
excluded, then the suit filed is perfectly within limitation. Hence, issue
No.7 is answered in the affirmative.
24. Considering the above discussion and my findings to the
issues, plaintiff company proved they sold, supplied and delivered
goods worth Rs.4,15,502/- and defendants failed to pay the amount
inspite of repeated demands, follow ups and legal notice. The Tax
Invoice contains interest of 24% p.a for non payment of the invoice
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amount. The transaction is commercial in nature and defendants inspite
of receiving the goods firstly took defence that it was not the plaintiff
who supplied it and second defence of inferior quality as well as higher
rates. Therefore, the defence raised was to deny the rightful claim.
Hence, while decreeing the suit, the commercial rate of interest as per
the terms of the invoice is necessary to be granted coupled with cost of
suit. In the result, I proceed to pass following order :
ORDER
1. The Commercial Suit No.79 of 2019 is decreed with cost.
2. The defendants are directed to pay to plaintiff an amount of
Rs.8,19,965/- (Rs. Eight Lakhs Nineteen Thousand Nine
Hundred and Sixty Five Only) with 24% p.a on principal
amount of Rs.4,73,924/- from the date of filing of the suit till
realization.
3. The decree be drawn up accordingly.
4. The R & P be sent to Record Department.
( N. B. Lavte )
Judge, (C.R.No.31)
Dt.: 13.08.2026 City Civil Court, Mazgaon,
MUMBAI.
Dicated on : 13.08.2026
Signed by HHJ on : 14.08.2026
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
14.08.2026 5.00 p.m. Prachi Y. Potdar
Stenographer - Grade I
Name of the Judge HHJ Shri. N. B. Lavte
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
13.08.2026
Judgment/order signed by P.O on 14.08.2026
Judgment/order uploaded on 14.08.2026
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