Final Order 1

Order Details: Copy of Judgment
Pdf Text: Com. Suit No.932/21 1 Judgment
MHCC010072252018 Presented on : 18062018
Registered on : 20082018
Decided on : 16032022
Duration : Y M D
03 08 28
BEFORE THE CITY CIVIL COURT, GR. BOMBAY
( Court No.14 )
(Presided Over by S. U. Hake)
COMMERCIAL SUIT NO.932 OF 2021
(SHORT CAUSE SUIT NO.2173 OF 2018)
Exh.17
M/s. Progressive Industries,
A Proprietary concern through its
Proprietor Vivek Shivkumar Chauhan
Having address of 20, Jagannath
Industrial Estate, Near Pooja Industrial
Estate, Tulshetpada, Bhandup (West),
Mumbai 400 078. ..Plaintiff.
VERSUS
M/s. Chopra Engineering Co.,
Having address at 5, Vadhani
Industrial Estate, L.B.S. Marg,
Ghatkopar (West), Mumbai 400 086.
Through its Proprietor Harban Chopra
Residing at Vasundhara, 3rd Floor,
Near Cadbur House, Bhulabhai Desai
Road, Peddar Road, Mumbai 400 028. ..Defendant.
_________________________________________________________
Ld. Advocate Priyank Shukla for plaintiff.
Ld. Advocate B.K. Bali for defendant.
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Com. Suit No.932/21 2 Judgment
JUDGMENT
( Delivered on 16th day of March, 2022 )
Suit is for recovery of an amount of Rs.17,08,550/ along
with future interest.
Briefly stated, plaintiff's case, is as under :
2. Plaintiff is a proprietary concern. Shivkumar Mahadeo
Chauhan was a proprietor of said concern. He passed away in the year
2015. Vivek Shivkumar Chauhan is carrying on business as a proprietor
of plaintiff concern. Defendant is a proprietary firm. It is carrying on
business of manufacturing crane parts. Plaintiff carried out job work
on the materials supplied by defendant as per orders and designs given
by defendant. Defendant supplied raw material. Plaintiff carried out
the job work on the raw materials supplied by defendant as per the
designs given by defendant. After doing the job work, plaintiff supplied
finished materials to defendant and raised the bills. Defendant used to
pay bills for the labor charges as per the bills raised by plaintiff. Plaintiff
maintained account of defendant. Since 31.01.2014, defendant stopped
making payment of bills submitted by plaintiff. Plaintiff has given
details of the bills and contended that an amount of Rs.17,08,550/ is
outstanding against defendant towards the job work done by the
plaintiff during the period from 31.01.2014 to 08.02.2017. Plaintiff sent
notice through his advocate on 21.02.2018 and made demand of
outstanding amount against defendant. Inspite of service of notice,
defendant failed to pay the outstanding amount. Hence, this suit.
3. Defendant, by filing written statement at Exh.3, strongly
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Com. Suit No.932/21 3 Judgment
resisted the suit claim. It is submitted that suit by a proprietary concern
is not maintainable. Vivek Shivkumar Chauhan is not the proprietor of
the M/s. Progressive Industries. As and when, defendant placed
orders for doing job work on raw materials, plaintiff supplied finished
goods under a delivery challan and raised the bills. Defendant made
payment of those bills. Defendant has specifically denied that the suit
amount is outstanding against it. It is submitted that claim for bills at
Sr. nos.1 to 23 are barred by limitation. Defendant has replied the
notice issued by the plaintiff’s advocate. No amount is outstanding
against defendant. Suit is not properly valued. By making all these
submissions, defendant prayed to dismiss the suit.
4. Heard both sides. My predecessor settled the issues at
Exh.4. They are reproduced here, along with findings thereon for the
reasons to follow, as under :
Sr.
No.
Issues Findings
1. Whether plaintiff proves that, a suit filed by a
proprietary concern is maintainable in law ?
Not proved
2. Whether plaintiff proves that, Vivek Shivkumar
Chauhan is and has at all material times been
the sole proprietor of the plaintiff ?
Not proved
3. Whether plaintiff proves that, the alleged suit
bills are in respect of the transactions between
the plaintiff & defendant ?
Not proved
4. Whether plaintiff proves that, the material of
the invoices was supplied by the plaintiff to
defendant ?
Not proved
5. Whether plaintiff proves that, the alleged sum
of Rs.17,08,550/ or any other sum is due &
payable by the defendant to the plaintiff ?
Not proved
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Com. Suit No.932/21 4 Judgment
6. Whether plaintiff proves that, the alleged
invoices at Serial No.1 to Serial No.23 of the
plaint are within limitation ?
Not proved
7. Whether plaintiff proves that the plaintiff has
paid appropriate Court fee on all the invoices
annexed to the plaint by calculating and
paying Court fees on each and every invoice ?
Proved
8. Whether suit is tenable and maintainable ? No
9. Whether plaintiff is entitled for relief as
sought ?
No
10. What order, decree and costs ? Suit is
dismissed
with costs as
per final
order
REASONS
ISSUE NOS.1, 2 AND 8.
5. In order to substantiate the claim, plaintiff has examined
PW1 Vivek Chauhan at Exh.8. Plaintiff placed reliance upon bills
(Exh.11 collectively), acknowledgement regarding receipt of notice by
defendant (Exh.12), envelope (Exh.13) and office copy of notice
(Exh.14). Plaintiff filed evidence closing pursis at Exh.15. In rebuttal,
defendant did not adduce evidence and filed evidence closing pursis at
Exh.16.
6. Defendant contended that suit by a proprietary concern is
not maintainable. It is further contended that Vivek Shivkumar
Chauhan is not the proprietor of M/s. Progressive Industries. In view of
these pleadings in written statement (Exh.3), issue nos.1, 2 and 8 were
settled. Burden was upon plaintiff to prove these issues. PW1 Vivek,
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Com. Suit No.932/21 5 Judgment
during his cross examination, states that his father was the proprietor of
M/s. Progressive Industries. His father passed away in September 2015.
His two elder sisters and mother are also legal heirs of his late father.
He has not filed any document to show that he is proprietor of M/s.
Progressive Industries. PW1 Vivek further testifies that his sister
Priyanka Chauhan is having current account in the bank as a proprietor
of ‘M/s. Progressive Industries’. Bills no.330, 331, 332, 333, 334, 335,
336, 337, 338, 339, 340, 341, 342, 350, 351, 352, 353, 354, 355, 356,
363, 364, 367, 368, 374, 375, 378, 379 (Part of Exh.11) bear signatures
of his sister Priyanka Chauhan. Priyanka Chauhan has signed all these
bills as a proprietor of the firm.
7. As stated above, burden was upon plaintiff to show that he
is proprietor of M/s. Progressive Industries. But, no material is brought
on record to show that he is a proprietor of M/s. Progressive Industries.
On the contrary, during cross examination, PW1 Vivek admits that his
sister Priyanka Chauhan is having current account in the bank as a
proprietor of ‘M/s. Progressive Industries’. A proprietorship firm is not
a separate legal entity apart from its proprietor which can sue or be
sued on its own name. Suit can be filed by a person who is the
proprietor of the firm. Defendant has specifically challenged this aspect
and contended that plaintiff Vivek Chauhan is not the proprietor of M/s.
Progressive Industries. As stated above, burden was upon plaintiff to
prove that he is proprietor of M/s. Progressive Industries. But, plaintiff
failed to prove that he is proprietor of M/s. Progressive Industries.
Therefore, suit filed by M/s. Progressive Industries through proprietor
Vivek Chauhan is not maintainable. Issue Nos.1, 2 and 8 are
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Com. Suit No.932/21 6 Judgment
answered accordingly.
ISSUE NOS.3 TO 5.
8. PW1 Vivek testifies that plaintiff has carried out the job
work as per orders placed by defendant. For carrying out job work,
defendant supplied the raw materials. Plaintiff has carried out job work
as per designs given by defendant and supplied finished materials to
defendant. PW1 Vivek further testifies that plaintiff has raised the bills
for the job work. Plaintiff’s entire claim is based upon bills filed at
Exh.11 (collectively). PW1 Vivek, during his cross examination,
admits that bills at Exh.11 (collectively) do not bear any
acknowledgement to show that those bills were received by defendant.
9. PW1 Vivek deposes that plaintiff has carried out the job
work as per orders placed by the defendant. But, those orders are not
filed on record. PW1 Vivek further deposes that defendant has given
the designs for carrying out the job work. Those designs are also not
filed on record. Plaintiff claims that bills at Exh.11 (collectively) were
served to defendant. But, there is no material on record to show that
bills at Exh.11 (collectively) were received by defendant. Plaintiff
contends that it has maintained ledger account of defendant. But, said
ledger account is not filed on record.
10. Ld. Counsel for plaintiff urged with vigor that defendant
has failed to examine himself. There is no evidence on record, in
rebuttal, to plaintiff’s evidence.
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Com. Suit No.932/21 7 Judgment
11. It is true that defendant has not examined himself.
However, that does not exempt plaintiff from adducing evidence to
show that plaintiff has carried out the work and raised the bills. From
the bills (Exh.11 collectively), it cannot be inferred that plaintiff has
carried out the work for defendant and served the bills. There is no
other evidence on record to show that plaintiff has carried out the job
work for defendant and suit amount is outstanding against defendant.
Thus, plaintiff failed to prove that an amount of Rs.17,08,550/ is
outstanding against defendant. Issue Nos.3 to 5 are answered as ‘not
proved’.
ISSUE NO.6.
12. Defendant contended that claim for invoices/bills at Sr.
nos.1 to 23 is barred by limitation. In para no.4 of the plaint, plaintiff
has given details of the bills. Bills at Sr. nos.1 to 23 pertain to the
period from 30.01.2014 to 14.04.2015. Suit is filed on 18.06.2018.
Plaintiff is claiming the amounts mentioned in bills at Sr. nos.1 to 23
towards the job work carried out by it. Considering the averments
made in the plaint, suit would be governed by Article 18 of the
Limitation Act which provides three years period of limitation for the
price of work done by the plaintiff for the defendant at his request
where no time has been fixed for payment. Said period would begin to
run when the work is done. Plaintiff is not coming with the case that
certain time was fixed for payment. Thus, plaintiff was entitled to claim
the amount from the date when the work is done. As stated above, bills
at Sr. nos.1 to 23 pertain to the period from 30.01.2014 to 14.04.2015
and the suit is filed on 18.06.2018. The claim for work done towards
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Com. Suit No.932/21 8 Judgment
bills at Sr. nos.1 to 23 is not made within three years of completion of
work. Therefore, claim for bills at Sr. nos.1 to 23 would not be within
limitation as provided under Article 18 of the Limitation Act. Issue
No.6 is answered accordingly.
ISSUE NO.7.
13. Defendant claims that suit is not properly valued and
plaintiff has not paid the proper Court fees. Plaintiff claims that an
amount of Rs.17,08,550/ is outstanding against defendant. It has
valued the suit accordingly and paid the Court fees. Issue No.7 is
answered accordingly.
ISSUE NO.9.
14. In answer to above issues, it is held that plaintiff failed to
prove that suit amount is outstanding against defendant and suit is not
maintainable. Therefore, plaintiff is not entitled for the reliefs claimed
in the suit. Issue No.9 is answered accordingly. In the result,
following order:
ORDER
1. Suit is dismissed with costs.
2. Decree thus follow.
( S.U. HAKE )
JUDGE,
Date : 16/03/2022 CITY CIVIL COURT, GR. BOMBAY.
Directly dictated on computer : 16/03/2022
Signed on : 19/03/2022
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Com. Suit No.932/21 9 Judgment
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”
21.03.2022 at 10.58 a.m.
UPLOAD DATE AND TIME
(AMIT DATTATRAY SHINDE)
COURT TYPIST, COURT NO.14
Name of the Judge HHJ SHRI S.U. Hake
(COURT NO.14)
Date of pronouncement of
judgment/order
16.03.2022
Judgment/order signed by P.O. on 19.03.2022
Judgment/order uploaded on 21.03.2022
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