Final Order 4

Order Details: Copy of Judgment
Pdf Text: CS No.100706 / 2021
Renwat – Gammon Judgment (Exh.34) 1 of 13
Suit Filed on
: 12.06.2018
Evidence Over / Plaintiff
: 19.06.2023
Evidence Over / Defendant
: 25.09.2024
Arguments Over
: 22.10.2024
Judgment
: 06.12.2024
MHCC010069972018
Duration : 06 Years, 05 Months, 24 Days
City Civil & Sessions Court, Mazgaon, Greater Mumbai,
Court Room No. 31 – Commercial Court
(Additional District Judge : Vijay S. Hingne, LL. M.)
Commercial Suit No. 100706 / 2021 Exhibit No. 34
Plaintiff : Renwat Badriramji Devasi
Proprietor : M/s. R. K. Corporation,
B/3, Narayan Park Society,
Hazira Road, Ichhapore, Surat - 10.
VERSUS
Defendant : Gammon India Limited
Gammon House, Veer Savarkar Marg,
Prabhadevi, Mumbai 400 025.
Appearances
Plaintiff
: Adv. Pankaj Shah
Defendants
: Adv. S. M. Khaire
Adv. Ramesh Sahu
Suit for Recovery of ₹. 15,30,857.14/-
************************************************************************
J U D G M E N T
(Delivered on this 06th Day of December, 2024)
Suit is preferred for recovery of . 15
₹ ,30,857.14/- with
interest @ 18 % per annum.
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Case of Plaintiff :
2) Renwat Badriramji Devasi, Surat, Gujarat, is Proprietor
of M/s. R. K. Corporation (hereinafter,
plaintiff), in business of
supply of hardware material.
Defendant Gammon India Limited, Mumbai,
Maharashtra (hereinafter,
defendant), is Construction Company.
3) Against Orders placed by defendant, plaintiff, from time
to time supplied hardware material, welding accessories, lifting
material, electrical goods etc. Said goods were delivered at Cable
Stay Bridge, Surat, Gujarat, through various delivery challans.
Defendant acknowledged invoices and accepted the goods,
without any dispute of quality and quantity.
4) During June 2011 to December 2014, defendant made
part-payment. On 01.06.2015, plaintiff sent confirmation-account
of .10,22,563/- to defendant. On said confirmation-account,	₹
defendant, on 13.06.2015, confirmed liability of . 9,94,709/-.	₹
5) Plaintiff through his email Dt. 17.06.2016, 30.07.2016,
20.02.2017, 12.07.2017, 19.09.2017 and 23.12.2017 requested
defendant to clear outstanding liability. However, defendant
ignored. Hence, on 12.06.2018, plaintiff preferred present
Commercial Suit No. 100706 / 2021, for recovery of
.15,30,857.14	₹ /- with interest @ 18 % p. a.
Case of defendant (Written Statement, Exh.7, Dt. 29.04.2022) :
6) Defendant prayed for dismissal of Suit with
compensatory costs, on following grounds :
1. There are no written purchase orders.
2. Plaintiff is claiming invoices of June 2011 to December
2014. Suit, filed on 12.06.2018, is barred by limitation.
3. Plaintiff failed to annex Purchase Orders, Tax Invoices
and Delivery Challans.
4. Defendant never acknowledged Invoice or Challan.
5. No goods were received by defendant.
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6. Defendant never made part-payment during June 2011
to December 2014.
7. As per own case of plaintiff, he has received payment.
Hence, defendant is not under any liability.
8. Defendant never received any emails or reminders.
9. Defendant never received balance confirmation letter
Dt. 01.06.2015 of .10,22,563/-. It is fabricated
₹
document. Defendant never confirmed liability of
.9,94,709/- on said document on 13.06.2015.
₹
Evidence of Plaintiff :
7) Plaintiff adduced oral and documentary evidence as :
PW1, Exh. 11 : Evidence of Khuswant Renwat Devasi.
Exh.13 : Certificate U/ Sec. 65-B of Indian Evidence Act.
Exh.15 : Balance Confirmation Letter Dt. 01.06.2015.
Exh.16
to
Exh. 21
: Emails Dt. 17.06.2016, 30.07.2016, 20.02.2017,
12.07.2017, 19.09.2017 and 23.12.2017, issued by
plaintiff to defendant.
Exh.22 : Original Power of Attorney Dt. 20.02.2015.
Exh. 23 : Evidence closure pursis filed by plaintiff.
Evidence of defendants :
8) Defendant adduced oral and documentary evidence as :
PW1, Exh. 25 : Evidence of defendant Jayesh Sahal.
Exh.26 : Letter of Authority Dt. 09.02.2023.
Exh.27 : Resolution Dt. 09.02.2023.
Exh.31 : Evidence closure pursis filed by defendant.
Issues :
9) Heard Adv. Pankaj Shah for plaintiff. Heard Adv. S. M.
Khaire and Adv. Ramesh Sahu for defendant. Perused written
arguments of plaintiff (Exh. 32) and written arguments of
defendant (Exh.33). Perused Record.
10) Issues framed by my Learned Predecessor (Exh. 9, Dt.
12.10.2022), are reproduced here. My findings and reasons to
them are as follows :
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Issues
Findings
1. Whether plaintiff proves that on
oral order placed by the defendant
the plaintiff has supplied hardware
material, building accessories,
lifting material, electrical good and
other required material?................... In the Negative.
2 Whether plaintiff proves that an
amount of ₹. 15,30,857.14/- is
outstanding from defendant?........... In the Negative.
3 Whether plaintiff proves that
defendant failed to pay outstanding
amount to plaintiff?......................... In the Negative.
4 Whether plaintiff proves that the
said goods were duly accepted by
the defendant without raising any
dispute about quality?...................... In the Negative.
5 Whether plaintiff proves that
defendant made part payment from
time to time to the
plaintiff?.......................................... In the Negative.
6 Whether plaintiff proves that by
confirmation letter dt. 01.06.2015
sent to the defendant, the defendant
on 13.06.2015 confirmed sum of
₹.9,94,709/- due and payable by
defendant to the plaintiff?................ In the Negative.
7 Whether Suit is maintainable?......... In the Negative.
8 Whether this court has jurisdiction
to try and entertain this suit?........... In the Affirmative.
9 Whether suit is within limitation?.. In the Negative.
10 Whether plaintiff is entitled to
recover .15,30,857.14 /- from
₹
defendants? If yes, what rate of
interest?........................................... In the Negative.
11 What Order and Decree?................. As per final order.
R E A S O N S
Reasons as to Issue No. 8 :
8. Whether this court has jurisdiction to try and
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entertain this suit?
11) Plaintiff has claimed that, he has supplied goods from
Surat to Cable Stay Bridge, Surat, Gujarat.
Defendant contended that, hence, Commercial Court,
Mumbai, lacks territorial jurisdiction to conduct the Suit.
As per Sec. 20 (c) of the Code of Civil Procedure, Suit
can be instituted in Court within whose jurisdiction, defendant
resides.
It is admitted fact that, defendant resides or carries
business in Mumbai. Therefore, Court at Mumbai is having
territorial jurisdiction to conduct the Suit. Hence, Issue No. 8 is
answered in the Affirmative.
Reasons as to Issue No. 1 & No. 4 :
1. Whether plaintiff proves that on oral order placed by
the defendant the plaintiff has supplied hardware
material, building accessories, lifting material,
electrical good and other required material?
4. Whether plaintiff proves that the said goods were
duly accepted by the defendant without raising any
dispute about quality?
12) Relevant pleading from the Plaint, regarding placement
of Order, delivery and supply, reads as follows :
3. The Plaintiff states that pursuant to the
requirements of the Defendant and pursuant to the oral
orders placed by the Defendant with the Plaintiff from
time to time for supply of hardware material, welding
accessories, lifting material, electrical goods and other
required material etc., the Plaintiff duly and deligently
and as per the specification of the Defendant and at the
agreed rate and as per the orders placed by the
Defendant, sold and supplied the aforesaid material to
the Defendant and delivered the same at Cable Stay
Bridge, Surat, Gujarat under various Delivery Challans.
The said material was duly accepted by the Defendant
without raising any dispute as to the quality, or quantity
thereof. The Plaintiff craves leaves to refer to and rely
upon the various delivery challans, when produce.
4. The Plaintiff states that along-with the Delivery
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Challans as aforesaid, the Plaintiff also raised and sent
the various invoices to the Defendant towards sale and
supply of the aforesaid material. The said invoices were
also duly accepted by the Defendant without raising any
dispute as to the rate thereof. The Plaintiff craves leaves
to refer to and rely upon the various invoices, when
produced.
Above pleading shows that, plaintiff is
simply claiming that, he
supplied hardware material, building accessories, lifting material,
electrical good and other required material.
13) If the defendant is denying the transaction in its entirety,
then it is necessary for the Plaintiff that his pleading and evidence
must disclose and establish following details :
1. When did defendant placed oral orders
2. Were orders on telephone or by personal meeting.
3. Whether there were negotiations about pricing
4. When did the plaintiff accepted the Orders.
5. Which goods were supplied by plaintiff
6. What was the quantity of each good
7. What was the rate of each category of good
8. What was the total amount of each category of the good
9. When the goods left the plaintiff from Mumbai
10. Who was the transporter
11. When the goods reached the defendant.
12. Who accepted the goods on behalf of defendant.
However, reproduced pleading, regarding transaction, fails to
provide answers / details to these questions. Pleadings in
Commercial Suit needs to be very specific and detailed.
However, plaintiff is making statements of extremely general
nature. This pleading fails to establish transaction.
Peculiar aspect
of pleading is that, plaintiff is only claiming that, .10,22,563/-
₹
is balance. He never disclosed the of what amount, he sold the
goods to the defendant.
Absence of Invoices and Delivery Challans :
14) Defendant is strongly contending that, suit is bad
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because of absence of
invoices and
delivery challans.
15) At Page No. 11 of Plaint, plaintiff has filed List of
documents. Accordingly, plaintiff has tendered documents at Page
No. 12 to No. 19. Said list reads as follows :
1. Various Delivery Challans from the year 2011 to 2014
by which Plaintiff has delivered materials to Defendant.
2. Various Invoices raised by Plaintiff upon Defendants
towards price of material sold, supplied and delivered.
3. Balance Confirmation Letter dated 1st June 2015 thereby
confirming a sum of Rs. 9,94,709/- on 13th June 2015.
4. Email dated 17th June 2016, 30th July 2016, 20th
February 2017, 12th July 2017, 19th September 2017 and
23rd December 2017 addressed to the Defendant.
5. Any other correspondence prior to the suit.
6. Any other relevant documents pertaining to suit, if any.
However, plaintiff did not filed Invoices and delivery challans.
The documents annexed on record, starts from
document No.3 i.e.
Balance Confirmation Letter dated 1st June 2015.
16) If Plaintiff is claiming possession of invoices and
delivery challans, then it was necessary for Plaintiff it on record.
It is not case of plaintiff that, invoices and delivery
challans does not exists, or they are in possession of defendant.
There is no explanation as to why plaintiff, after
claiming possession of invoices and delivery challans, has not
filed the same on record. In its absence, the Suit is bound to fail.
Hence, Issue No. 1 and No. 4 are answered in Negative.
Reasons as to Issue No. 5 :
5. Whether plaintiff proves that defendant made part
payment from time to time to the plaintiff?
17) Regarding part-payment, relevant pleading from the
Plaint, reads as follows :
5. The Petitioner states that between June, 2011 to
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December, 2014 the Defendant made part payments
from time to time thereby leaving balance sum of Rs.
10,22,563/- still due and payable by the Defendant to
the Plaintiff. The Plaintiff states that despite repeated
requests and reminders by the Plaintiff to the Defendant,
calling upon the Defendant to pay the balance
outstanding amount of Rs. 10,22,563/- due and payable
by the Defendant to the Plaintiff and despite various
assurance given by the Defendant to make the said
outstanding payments, the Defendant failed and
neglected to do so.
Only pleading relating to transaction can be found in Paragraph
No. 3 to No. 5 of the Plaint which is reproduced above.
18) Plaintiff never disclosed, what was the value of the
goods, which were sold to the defendant. Plaintiff is directly
claiming that Rs. 9,94,709/- is balance. Unless and until Plaintiff
do not disclose as to,
1. What was the due amount,
2. On what date the part-payment was made
3. What was amount paid by defendant as part payment.
4. What was mode of that part payment,
5. How plaintiff acknowledged that part-payment
In absence of all these details, the case of the Plaintiff regarding
part payment cannot be relied upon. Hence, Issue No. 5 is
answered in the negative.
Reasons as to Issue No. 6 :
6. Whether plaintiff proves that by confirmation letter
dt. 01.06.2015 sent to the defendant, the defendant on
13.06.2015 confirmed the sum of Rs. 9,94,709/- due
and payable by the defendant to the plaintiff?
19) Plaintiff is coming with case that, on 01.06.2015, he had
forwarded Confirmation Letter (Exh.15) to defendant.
On 13.06.2015, defendant put his seal and signature on
said Confirmation Letter and acknowledged the liability.
Defendant had examined its Assistant Manager
(Accounts) Jayesh Sahal at Exh. 25. During cross examination,
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initially DW1 Jayesh admitted that, it bears seal of Gammon
India. However, subsequently, he denied it.
Defendant is contending that, Confirmation Letter
(Exh.15) is fabricated document, never signed by defendant.
20) In backdrop of overall defense, it is necessary to look at
the surrounding circumstances of Confirmation Letter (Exh.15).
For convenience, it is scanned here :
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21) Peculiar aspect of Confirmation Letter is, dates related
with it. They are tabled as follows :
Date :
Events
01.06.2015 : Date mentioned on Confirmation Letter.
13.06.2015 : Alleged date on which defendant is claimed to
have put his seal and signature on the
Confirmation Letter.
12.06.2018 : Date of Lodging of the Suit.
It is case of defendant that, Confirmation Letter is specifically
prepared by plaintiff, merely to bring the Suit within limitation.
22) Suit for recovery is to be filed within three years. In
backdrop of this defense, these dates assumes importance.
Considering defenses and peculiar aspect of limitation, it is
necessary for plaintiff that, he must prove its execution.
Pleading relating to Confirmation Letter :
23) In the Plaint, plaintiff pleaded about Confirmation
Letter, as follows :
6. The Plaintiff states that by Balance Confirmation
Letter dated 1st June 2015 sent to the Defendant for
confirmation of the amount of Rs. 10,22,563/- as on 31st
March, 2015. The Defendant on 13th June, 2015
confirmed a sum of Rs. 9,94,709/- due and payable by
the Defendant to the Plaintiff. The liability and
confirmation arises out of commercial transaction
between the Plaintiff and the Defendant. Hereto
annexed and marked Exhibit A is the copy of Balance
Confirmation dated 1st June, 2015.
In above pleading, plaintiff has not disclosed following aspects :
1. How Confirmation Letter was forwarded to defendant.
2. Whether said Confirmation Letter was handed over to
defendant by courier or through hand delivery.
3. After Confirmation Letter was allegedly signed by
defendant, then how said Confirmation Letter reached
back to plaintiff.
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In entire pleading and evidence of plaintiff, plaintiff has not
disclosed these aspects. When the defendant is alleging that, the
Confirmation Letter is fabricated document, then, the absence of
aforesaid factors from pleading and evidence of plaintiff, creates
clouds of suspicion regarding the Confirmation Letter. Absence
of these factors goes to the root of the dispute. Absence of these
factors supports case of defendant that, said Confirmation Letter
is fabricated document.
24) It also calls for adverse inference against the plaintiff
that, there was no execution of any such document and hence
plaintiff did not disclosed, surrounding factors, as to how said
document traveled from plaintiff to defendant and back from
defendant to plaintiff.
25) Further, this Confirmation Letter is not supported by
any document from plaintiff as, invoices, delivery challans, etc.
26) If such document is surrounded with clouds of
suspicion, then each and every aspect of such documents needs
proper appreciation and its execution needs to be established
properly. Mere possession of such document with plaintiff will
not prove the case for the plaintiff. So, even if said Confirmation
Letter bears seal of defendant or seal identical to that of
defendant, it does not mean that, execution of said Confirmation
Letter is established or proved, unless plaintiff explains as to how
the document traveled between the parties.
27) As defendant is strongly denying truthfulness of
Confirmation Letter, as plaintiff failed to establish as to how he
got possession of Confirmation Letter, it is held that, plaintiff
failed to establish execution of Confirmation Letter. Therefore,
this Confirmation Letter will not prove the existence of liability
on defendant, nor it will help the plaintiff to bring his Suit within
limitation. Therefore, Issue No. 6 is answered in the Negative.
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Reasons as to Issue No. 9 :
9. Whether suit is within limitation?
28) Though plaintiff claimed having possession of Invoices
and Delivery Challans, plaintiff has not filed the Invoices or
Delivery Challan. Hence, it is not possible to ascertain as to when
the cause of action arose for plaintiff to claim recovery.
Further, the plaintiff also failed to prove the execution
of Confirmation Letter. Hence, it is also not possible to calculate
the limitation from the date of said Confirmation Letter.
In absence of any document regarding cause of action, it
is held that, the Suit of plaintiff is barred by limitation. Hence,
Issue No. 9 is answered in Negative.
Reasons as to Issue No. 7 :
7. Whether the Suit is maintainable?
29) Against the goods sold and supplied, plaintiff is
claiming recovery. However, as plaintiff failed to prove the
existence of Invoices, Delivery Challan and also the execution of
Confirmation Letter, the Suit is held to be barred by limitation.
Therefore, such Suit is not maintainable. Hence, the Issue No. 7
is answered in Negative.
Reasons as to Issue No. 2, No. 3 & No. 10 :
2 Whether plaintiff proves that an amount of
₹.15,30,857.14/- is outstanding from defendant?
3 Whether plaintiff proves that defendant failed to pay
outstanding amount to plaintiff?
10. Whether plaintiff is entitled to recover an amount of
.15,30,857.14/- from defendants? If yes, what rate
₹
of interest?
30) In view of negative finding as to Issue No. 1, No. 4, No.
5 and No. 6, the plaintiff is not entitled for recovery. Hence, these
Issues are so answered.
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Reasons as to Issue No. 11:
11. What Order and Decree?
31) In view of findings to the Issues, plaintiff cannot be
made entitled for decree. Resultant, the Suit is disposed off, by
following Order :
ORDER
1. Commercial Suit No. 100706 / 2021, Renwat
Badriramji Devasi Vs. Gammon India Limited, is
dismissed with costs.
2. Decree be drawn up accordingly.
3. Judgment pronounced in Open Court.
4. Plaintiff be informed about its right to challenge this
Judgment and period of limitation.
5. After compliance and period of Appeal, Shirestedar and
AS to consign Record of the Suit, to Record Room.
Mumbai
Dated : 06.12.2024 (Vijay S. Hingne)
Additional District Judge,
Court Room No.31 - Commercial Court,
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
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