Interim Order 1

Order Details: Other
Pdf Text: Summons for Judgment No. 121/19 1 Order.
in Comm.Suit No. 706/21.
MHCC010036762019
Presented on : 01-04-2019
Registered on : 01-04-2019
Decided on : 16-11-2021
Duration : 2 years, 7 months, 15 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
SUMMONS FOR JUDGMENT NO. 121 OF 2019
IN
COMMERCIAL SUIT NO. 706 OF 2021
(ORIGINAL SUMMARY SUIT NO. 767 OF 2018)
Renwat Badriramji Devasi, )
Adult, Indian Inhabitant, carrying on )
business in the firm name and style of )
R. K. Corporation, as the sole )
Proprietor thereof, at B/3, Narayan Park )
Society, Hazira Road, Ichhapore, )
Surat – 10 )...Plaintiff
Versus
Gammon India Limited, )
a Company incorporated under the )
provisions of Companies Act, 1956 having )
its Head office at Gammon House, )
Veer Savarkar Marg, Prabhadevi, )
Mumbai – 400 025 )...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 16th NOVEMBER, 2021.
Shri Pankaj Shah, Advocate for the plaintiff.
Shri Rajesh Maravoor, Advocate for the defendant.
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Summons for Judgment No. 121/19 2 Order.
in Comm.Suit No. 706/21.
ORDER
1. The plaintiff filed summary suit for recovery of
Rs.15,30,857.14 with interest at the rate of 18% p.a. on the principal
amount of Rs.9,94,709/ from the date of filing of the suit till
realization with costs.
2. The plaintiff moved this Summons for Judgment on
12/03/2019. Subsequently, the suit is reregistered as a Commercial
Suit. Therefore, both suit numbers are clarified in the beginning on the
first page of this order. Perused summons for judgment, affidavit in
reply and affidavit in rejoinder. I have also gone through the suit
proceeding. Heard learned counsel Shri Pankaj Shah for the plaintiff
and learned counsel Shri Rajesh Maravoor for the defendant.
3. It is case of the plaintiff that he is proprietor of the firm
'M/s. R.K.Corporation' having engaged in the business of supply of
hardware material, welding accessories, lifting material and electrical
goods etc. The defendant is a company incorporated under the
provisions of the Companies Act, 1956 engaged in the business civil
engineering construction, undertaking infrastructure projects,
transportation projects, power projects etc. Pursuant to oral orders
placed by the defendant, the plaintiff had sold and supplied hardware
material, welding accessories, lifting material, electrical goods etc. at
the agreed rate to him from time to time. The plaintiff had raised
invoices alongwith delivery challans. The defendant accepted the
invoices without raising any dispute as to the rate of goods. The
defendant had made part payment during June 2011 to December 2014
leaving balance of Rs.10,22,563/. The plaintiff sent letter dated
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Summons for Judgment No. 121/19 3 Order.
in Comm.Suit No. 706/21.
01/06/2015 to the defendant for confirmation of amount of
Rs.10,22,563/ as on 31/03/2015. On 13/06/2015, the defendant
confirmed a sum of Rs.9,94,709/ to be due and payable by him. The
plaintiff sent several reminders to the defendant by his email dated
17/06/2016, 30/07/2016, 20/02/2017, 12/07/2017,19/09/2017 and
23/12/2017, but the defendant did not pay the amount. Hence, the
plaintiff filed the suit for recovery of Rs.9,94,709/ with interest at the
rate of 18% p.a. as per particulars of claim (Exh.C).
4. Learned counsel Shri Pankaj Shah for the plaintiff
reiterated his case in the plaint and submitted that the plaintiff has kept
his claim restricted to the amount confirmed by the defendant on
13/06/2015 at the bottom of letter dated 01/06/2015 (Exh.A).
According to him, cause of action arose on 13/06/2015. As the
defendant has stated specific amount while confirming the account, his
liability has become absolute to that extent. He further referred para (f)
in affidavit in reply in which it is stated that invoices were raised
without supplying goods. He further referred to middle portion of para
10.5 in affidavit in reply in which it is stated that payments were made
for whatsoever services provided and or goods supplied and there is
nothing due and payable. With the help of these contents in affidavit in
reply, learned counsel Shri Pankaj Shah submitted that the defendant
has taken contrary stands. According to him, if goods were not
supplied, there is no question of payment. He relied upon observations
of Hon'ble Delhi High Court in para 12 in the case of Vinod Kumar and
others V/s. Keshav Anand – 2002 A I H C 1621 and submitted that
the defendant should disclose such defence which has fair chances of
success or potential to dislodge the case of the plaintiff. He further
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Summons for Judgment No. 121/19 4 Order.
in Comm.Suit No. 706/21.
submitted by relying upon observations in the said citation that defence
raised by the defendant is selfcontradictory and he has no right to get
leave to defend the suit. He prayed that summons for judgment may be
made absolute and the suit may be decreed.
5. On the contrary, learned counsel Shri Rajesh Maravoor for
the defendant submitted that the defendant has disputed signature as
well as stamp on the letter dated 01/06/2015 (Exh.A). He further
submitted that emails relied by the plaintiff do not reveal name of Kapil
who has allegedly confirmed the account and there is no reference of
confirmation made on 13/06/2015 in these emails. He has referred
contents of copies of all emails filed by the plaintiff. He further
referred letter dated 23/12/2017 sent by the plaintiff and submitted
that as per contents in the letter, the plaintiff had given 25% discount
on the principal amount and made offer of Rs.7,46,032/. According to
him, invoices were raised between 2011 to 2014 and the suit is filed in
2018. He further submitted that ledger account as well as invoices have
not been attached with the plaint and only balance confirmation letter
is relied upon by the plaintiff. There is no proof of receipt of letters and
emails. He further submitted that all dues are paid and nothing is due
and payable to the plaintiff as stated in para 10.4 of the affidavit in
reply. According to him, the defendant disputed and denied service of
letter dated 01/06/2015 (Exh.A) and confirmation of Rs.9,94,709/ on
13/06/2015 in para 10.5 of the affidavit in reply. Receipt of emails is
also disputed by the defendant. He also referred relevant portions in
affidavit in reply while advancing his arguments. It is his contention
that all emails are sent after alleged balance confirmation by the
defendant. He relied upon observations of Hon'ble Himachal Pradesh
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Summons for Judgment No. 121/19 5 Order.
in Comm.Suit No. 706/21.
High Court in para 11 in the case of Raj Kumar Mittal V/s. Himachal
CoOperative Non Agriculture Thrift – LAWS(HPH)20191234 and
submitted that the defendant has raised questions disputing his liability
to pay the amount to the plaintiff and there are triable questions. He
submitted that there are several triable issues involved in the matter
and therefore, summons for judgment may be dismissed and leave to
defend may be granted.
6. After considering rival contentions and material on record,
it appears that the plaintiff has come up with the case that he had
supplied goods to the defendant during June 2011 to December 2014 as
per oral orders. He further stated about balance amount of
Rs.10,22,563/. The plaintiff had sent a letter on 01/06/2015 for
confirmation of this amount to the defendant who has confirmed
liability of Rs.9,94,709/ on 13/06/2015 at the bottom of said letter.
This letter is filed with the plaint (Exh.A). The defendant has disputed
receipt of the said letter and confirmation of the balance amount in his
affidavit in reply. In addition to it, he has denied liability to pay any
amount to the plaintiff.
7. While resting the entire case on the said letter and
confirmation below it, the plaintiff has avoided to place on record
delivery challans and invoices mentioned at sr.no.1 and 2 of the list of
documents filed with the plaint. He has also not produced on record
ledger account regarding his commercial transaction with the
defendant. Ledger account would have fortified details of balance
amount pleaded in the plaint and stated in the said letter.
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Summons for Judgment No. 121/19 6 Order.
in Comm.Suit No. 706/21.
8. In addition to it, the defendant has raised the issue of
limitation by pointing out period of transaction i.e. June 2011 to
December 2014 and date of filing of the suit i.e. 12/06/2018. Even if,
the letter (Exh.A) is taken into consideration, the confirmation on it is
liable to be read in the context of dates of invoices and due dates for
payment of amounts mentioned in the invoices. It is for the reason that
the said confirmation is in the form of acknowledgment of liability
within the meaning of Section 18 of the Limitation Act, 1963. Such
acknowledgment should have been given before the expiry of the
prescribed period for a suit. Limitation for filing a suit can be
determined with the help of Article 14 to 16 of the Limitation Act, 1963
depending upon terms and conditions mentioned in the invoices. If
payment of price in respect of few invoices is barred by limitation, there
is scope for variation in due amount liable to be paid to the plaintiff by
the defendant. For all these reasons, there are certain legal issues
involved in the matter which have to be dealt with by allowing both
sides to lead evidence. In short, the plaintiff has avoided to place on
record the basic documents which would have lent support to his case
in the plaint and contents in the said letter. There are triable issues
involved in the matter as discussed above. For want of sufficient
material on record and considering questions raised by the defendant, it
would be appropriate to allow the defendant to place his defence on
record and to have the matter decided on merit. Hence, I pass the
following order :
ORDER
1. Summons for Judgment No. 121/2019 is dismissed.
2. Unconditional leave is granted to the defendant to defend
the suit.
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Summons for Judgment No. 121/19 7 Order.
in Comm.Suit No. 706/21.
3. The defendant is directed to file written statement on or
before the next date of hearing.
4. Proceedings of Summons for Judgment No. 121/2019 are
closed.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
Date : 16/11/2021. Mumbai.
1. Dictated online on : 16/11/2021.
2. Signed on : 16/11/2021.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16/11/2021. 5.22 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 16/11/2021.
Judgment/Order signed by P.O. on 16/11/2021.
Judgment/Order uploaded on 16/11/2021.
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