Final Order 1

Order Details: Copy of Judgment
Pdf Text: SJ. 172/2018 SUM.SUIT. 889/17 1
IN THE CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT 172 OF 2018
IN
SUMMARY SUIT NO. 889 of 2017
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
( CNR NO.: MHCC01-007264-2018)
M/s. Indian Cab Corporation
a partnership firm,
having its registered
office at 11, Takwadi, Shop No.1,
Kalbadevi Road, Opp. Edward Cinema
Mumbai 400002(through its
Partner Mr.Sandeep Jain
alias Kavedia age 32 years) ...Plaintiff
Versus
M/s. Raman Electricals,
through its sole Proprietor
Mr. Rohit Anand,
Age :45years, Occupation:Business,
having its office at Shop No.8,
Plot No.35, Near Jal Vayu Vihar,
Sector 20, Kharkhar, Navi Mumbai. ...Defendant
Appearances:-
Advocate Mr. Heeralal Chaturvedi for the Plaintiff.
Advocate Ms. Sonali for the Defendant.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 28th February 2020
J U D G M E N T
1. This is Summons for Judgment for recovery of Rs.45,20,093/-
(Rupees Forty Five Lakhs Twenty Thousand and Ninety Three paise
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Only) with Pendente Lite and future interest at the rate of 12% p.a..
2. According to the plaintiff, the plaintiff is a partnership firm
carrying on business of manufacturing various types of electric PVC
industrial cables and wires. The defendant Rohit Anand is sole propritor
of M/s Raman Electricals. The defendant was regularly buying electrical
industrial cables and wires from plaintiff and making part payment
thereof. As per telephonic order dtd.19.02.2018 the plaintiff supplied
cables on 19.02.2008 to the defendant as per tax invoice bearing No.07-
08/02094, dtd.19.02.2008 for total Rs.21,59,128/-. The tax invoice also
contained a condition of charging of interest at the rate of 24% p.a. if
the outstanding of the amount is not paid within 30 days. The plaintiff
has maintained day to day ledger account of the defendant and at the
bottom of ledger account as on 19.08.2016 the outstanding amount due
and payable by the defendant is Rs.21,55,226/-. The defendant has
signed confirmation of accounts year wise in respect of period from
01.04.2009 till 31.03.2015 wherein he admitted the amount payable by
him to the plaintiff as Rs.21,55,226/-. The plaintiff issued legal notice
as well as various mails to the defendant demanding the then
outstanding amount. The defendant made part payment of Rs.50,501/-
by cheque dtd.28.04.2014 and Rs.67,624/- by cheque dtd.09.09.2014.
However, the defendant did not pay the whole amount. At the
institution of the suit, the defendant is liable to pay Rs.45,20,093/- as
Rs.21,59,128/- towards principal amount and Rs.23,60,965 towards
past interest. Therefore, the plaintiff claimed recovery of the said
amount with pendente lite and future interest.
3. The defendant filed reply contesting the Summons for Judgment.
The defendant contended that the plaintiff failed to disclose as to
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whether it is a registered partnership firm. In the event the firm is not
registered, then the suit is liable to be dismissed. The statements of
accounts produced by the plaintiff are manipulated and fabricated to
bring the suit within limitation. The ledger accounts are also
manipulated and fabricated. The suit is based on tax invoice of February
2008. Therefore, the suit is barred by limitation. The defendant has
already made the payment under invoice dtd.19.02.2008. The
defendant denied that he signed confirmation letters every year from
31.03.2010 to 31.03.2016. With these contentions the defendant
requested to reject the summons for judgment and grant unconditional
leave to defend.
4. Considering material on record and submissions made on behalf
of the parties points arise for determination alongwith my findings
thereon are as under:-
POINTS FINDINGS
1. Whether the plaintiff is entitled
to Summons for Judgment?
In the Negative
2. Whether the defendant is
entitled to Leave to defend?
If yes, whether conditional/
unconditional?
Yes.Unconditional leave to defend.
3. What order? As per final order.
REASONS
AS TO POINTS NO.1 to 3 :-
5. The Ld Advocate on behalf of the plaintiff argued that admittedly
the goods were sold to the defendant vide invoice dtd.19.02.2008 for
Rs.21,59,128/-. Thus, the defendant admitted the liability. The
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statements of accounts as produced on record also proved the liability
of the defendant. Therefore, he requested to allow the summons for
judgment.
6. On the other hand, Ld advocate on behalf of the defendant
argued that the suit is not within limitation. The defendant has denied
execution of the confirmation of accounts. The plaintiff is not registered
partnership firm. Thus, the defendant has put forth substantial defence.
Therefore, summons for judgment has to be rejected. On these
contentions he requested to grant unconditional leave to defend.
7. True that it is not disputed that the defendant purchased the
goods worth Rs.21,59,128/- vide tax invoice dtd.19.02.2008 from the
plaintiff. However, the defendant specifically contends that he has
already paid the amount. He also produced copies of counter files of the
cheques issued by him in discharge of the said liability. It may be noted
here that the plaintiff has relied on ledger account also to show the
liability of the defendant. The same contains several entries,
examination of which in detail is necessary which is not possible in a
summary procedure. There are several transactions between the parties
as it reveals from the said ledger. No doubt the transaction in respect of
invoice dtd.19.02.2008 is included therein. However, that is not the
only transaction referred therein. Thus, the ledger account requires a
scrutiny as to the entries therein particularly when the defendant has
come with the contention that the entries therein are manipulated.
8. The tax invoice is dtd.19.02.2008. The suit has been filed on
12.06.2017. Thus, the claim is much beyond the period of 3 yrs. The
plaintiff claims that the suit is within limitation as the confirmation of
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accounts were executed every year by the defendant. However, the
defendant has also denied the signatures on the confirmation of
accounts. Thus, issue of limitation in this background is a mixed
question of facts and law. Thus, whether the defendant is liable to pay
the amount, whether the confirmation of accounts have been executed
by the defendant and whether the suit is within limitation are the
triable issues.
9. Regarding registration of the partnership firm, the plaintiff
produced copy of application for registration and print out of the
message regarding registration of the plaintiff partnership firm.
However, it is apparent that the application was made for registration
on 29.08.2018. Thus, the application for registration was made post the
suit. In other words, when the suit was filed the plaintiff was not a
registered partnership firm. Thus, the defendant has put forth
substantial defence on said aspect. In view of all these circumstances,
the plaintiff is not entitled to the summons for judgment whereas the
defendant is entitled to unconditional leave to defend. Hence, point
No.1 is answered in the Negative whereas point No.2 is answered as
that the defendant is entitled to unconditional leave to defend. In
answer to point No.3 order as follows is passed:
ORDER
1. The Summons for Judgment 172/2018 is rejected.
2. Unconditional leave to defend is granted to the defendant.
3. The defendant shall file written statement on or before
20/04/2020.
4. The Registrar shall cause conversion of the suit to appropriate
category and shall cause assignment of the same to appropriate
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court by completing requisite process.
5. The summons for judgment 172/18 is disposed.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date: 28/02/2020 City Civil Court, Gr. Mumbai
Dictated on : 28/02/2020
Signed on : 03/03/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
09/03/2020 at 3.10 p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 28/02/2020
Judgment/Order signed by P.O. on 03/03/2020
Judgment/Order uploaded on 09/03/2020
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