Final Order 1

Order Details: Other
Pdf Text: SJ 205/19 IN SUM.1208/17 ORDER 1
EXHIBIT
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.205 OF 2019
( CNR No.MHCC01-007410-2019)
IN
SUMMARY SUIT NO. 1208 OF 2017
M/s. S. G. Gold
Represented by its proprietor Mr.Girish
Ramchandra Jain, Age 44 years, Occupation
Business, Indian Inhabitant, having office 1605,
Darshan Heights, B. M. Marg, Elphinstone West,
Mumbai 400013. … Plaintiff
Vs.
1. M/s. Arihant Jewellers
A Partnership Firm
2. Kaushal Bhawarlal Jain, An adult, Indian
Inhabitant , Occ Business Partner of
M/s.Arihant Jewellers
3. Bhawarlal Tarachand Jain An adult,
Indian Inhabitant, OccBusiness, Having their
office at Shop No. 22, Kohinoor Arcade,
Opposite Bus Stop, Pune 400044. ..Defendants
Advocate Mr.Yashpal Jain for the plaintiff.
Advocate Mr. Dahigaonkar for Defendant .
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 6th April 2022
JUDGMENT
1. The plaintiff has filed Summons for Judgment and requested to
order the defendant to pay Rs.35,33,323/. The plaintiff has submitted
that it is the proprietory firm dealing in the business of Gold Jewellery
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by Proprietor Mr.Girish Jain. The plaintiff is having business of supply
of Gold Ornaments. He knows the defendant from last 5 years. The
defendant no.1 is partnership firm. The defendant no.2 and 3 are the
partners of defendant no.1. Defendants are running business in the title
address. The defendants have placed purchase order first time in the
year 2012. The defendants have made prompt payment of the said
purchase order. Thereafter defendants have started placing order to
plaintiff. Accordingly business relationship between the plaintiff and
defendants were developed. Plaintiff was supplying the goods/gold
ornaments as per demand of the defendants with the invoice.
Accordingly relationship between the parties become very well. In the
year 201516 the defendants have placed purchase order. Accordingly
the plaintiff had supplied goods alongwith invoice the said invoices
have been acknowledged by defendants. But the defendants started
making default in payment from 2015. Plaintiff has shown payment
against invoice in para 4 of the plaint. It is the submission of plaintiff
that the total amount of Rs.42,26,956/ was invoice amount. Out of
which the defendants have made part payment by issuing cheques in
favour of the plaintiff. Even though Rs.28,89,000/ was outstanding
against defendants, for the said amount the defendants have issued 5
cheques. The said cheques, with dates and amount against them, are
mentioned by plaintiff in para 5 of the plaint. In total the due amount
against the defendant is Rs.28,89,000/. The plaintiff has presented
cheque in the Union Bank of India, Lower Parel Branch, Mumbai, for
realisaton of the amount, but the cheques were returned with
endorsement 'Funds Insufficient'. Thereafter plaintiff sent legal notice
after receipt of notice the defendants have made payment of
Rs.2,50,000/ by RTGS. The said payment is towards the Cheque
No.127369 and Cheque No.157616. In total after receipt of notice the
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defendants have paid Rs.2,50,000/. Thereafter defendants promised
telephonically that immediately they will pay remaining amount.
Defendants failed to pay amount therefore, plaintiff has filed complaint
against Defendant under Section 138 r/w.141 of the Negotiable
Instruments Act. After complaint the defendant approached to plaintiff
and made payment of Rs.1,00,000/, even though the outstanding
amount was Rs.26,39,000/. At that time also defendants assured that
they will pay outstanding liability within fortnight. The plaintiff has
shown details of amount in para 10(a) and deduction of the amount
paid by defendants after notice and after complaint under Section 138
of NI Act. Accordingly as per case of the plaintiff as on the date of the
suit the principal amount of Rs.25,39,000/ is due. The plaintiff has
calculated interest from 6/2/2015 till filing of the suit is about
Rs.9,94,323/. Consequently, total amount of Rs.35,33,323/ is claimed
by plaintiff from defendant.
2. The defendants have appeared on record through advocate. They
have filed application of leave to defend the suit unconditionally. The
defendants have denied contents of the plaint. It is their submission that
defendants are running business at Pune. The goods are delivered at
Pune and accordingly defendants have raised objection that, this Court
has no Jurisdiction. It is the case of defendants that they approached to
plaintiff and as per demand of defendants the plaintiff has supplied
goods. Actually there was no purchase order from defendants. All the
time the goods are delivered as per oral instructions or on adhoc basis.
After delivery of goods the plaintiff used to supply invoice after 15 to 20
days. Therefore, there is no question of calculating interest. The
defendants were paying amount more than due amount. The said
amount was adjusted by plaintiff in the next cycle. But, fraudulently the
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plaintiff has added amount of Cheque No.161335 which is just to extort
money from defendants. Defendants have issued cheque on adhoc
amount just for security of another transaction but the said cheque is
misused by plaintiff. Therefore, the defendants have stopped the
payment. Actually after receipt of the notice from plaintiff the
defendants have transferred Rs.5,00,000/ . Accordingly, the defendants
have paid full liability towards invoice. The defendants have admitted
complaint under Section 138 of the Negotiable Instruments Act. It is
their submission that concerned Magistrate convicted to defendants
with these submissions the defendants requested to reject the Summons
for Judgment and allow them to defend the suit unconditionally.
3. Heard learned advocate of plaintiff and defendant at length. Both
advocates have placed reliance on the ratio of Hon'ble Supreme Court in
IDBI Trusteeship Services Limited Vs. Hubtown Limited (2017) 1
Supreme Court Cases 568. In the said citation the Hon'ble Supreme
Court has given Guidelines when the leave to defend the suit can be
granted unconditionally and when it should not be. The plaintiff also
take reference of Section 59 of Sale of Goods Act, about appropriation
of payment. The plaintiff has also filed invoice No.S1/65, S1/55, S1/9
and S1/54. The said invoices have been shown by plaintiff at para
10(a).
4. From pleadings and documents on record following points arise
for consideration to which I have given reasons before them:
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Sr.
No.
POINTS FINDINGS
1 Does plaintiff entitled for relief sought in
the summons for judgment ?
Partly Affirmative
2. Does defendant entitled for leave to defend
the suit unconditionally ?
In the Negative
3 What Order ? S.J. is made partly
absolute
R E A S O N S
AS TO POINT NOS.1 AND 2:
5. It is the case of the plaintiff that time to time defendants have
placed purchase order. Accordingly as per invoice the plaintiff has
supplied goods. The said invoice have been accepted by defendants by
putting their signature. The first defence of defendants that the
defendants have never placed purchase order but as per oral
instructions the plaintiff has supplied goods. Admittedly, the plaintiff
has not produced purchase order. As per statement of plaintiff the
defendants have acknowledged invoices and that can be called as
contract. Apart from that the purchase order is not produced on record,
but defendants have admitted business transaction with plaintiff. As per
statement of the plaintiff the four invoices have been signed by some
one from defendant and therefore the said invoices have been
acknowledged. The plaintiff has shown due amount in the invoices. It
is the submission of plaintiff that the defendants have given cheque for
clearing outstanding amount. The plaintiff has presented said cheques
but those were returned because of insufficient funds in the account.
The plaintiff has produced xerox copies of Bank Memo to show that the
cheques are returned because funds were insufficient. The defendants
have admitted issuance of cheque as per their statement the said cheque
has been issued for security purpose. Apart from that defendants
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statement that they have issued cheques for security purpose but the
statement of the plaintiff that the cheques are issued for clearing
outstanding amount supports contents of plaint, Invoices and other
documents on record. The admission of defendants that they have
business transaction with plaintiff, they have also issued cheque shows
that defendants have issued cheque for clearing outstanding amount.
The question that the cheques are returned without clearing because of
insufficient funds is a question which can be decided by criminal Court.
Criminal case was also pending, in that case defendants are convicted.
The advocate of defendant also submitted that Appeal is also pending
before Sessions Court. The question of Section 138 of the Negotiable
Instruments Act, is not much relevant to the only question whether
defendants are liable to pay amount to the plaintiff. The plaintiff has
calculated the amount in para 10(a) . He has shown principal amount
of Rs.25,39,000/ . Much emphasis is given on behalf of defendants that
plaintiff has not deducted amount paid after notice and after Section
138 Case. The plaintiff brought to the notice clause (1) of para 10(a).
Invoice No.S1 of para 65 that is deduction of Rs.2,50,000/, and
Rs.1,00,000/. Therefore, this submission of the defendant is also not
susceptible.
6. Plaintiff has given much emphasis on invoice, those invoices have
been signed by receiver. From the submission of defendant the goods
are received at Pune and not at Mumbai, shows that defendants have
goods as per invoices. The invoices disclose the address of Pune. But the
plaintiff is carrying on business at Mumbai. Though the invoices disclose
address at Pune but part transaction that is delivery of goods from
Mumbai is not disputed. However, rest of the question of jurisdiction
can be decided during trial. At this stage from admission of defendant
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at least the defendants are liable to pay principal amount.
7. There are total four invoices 2 invoices are disclosed about
interest and two invoices are silent regarding charging of interest, if
amount not paid within 7 days. On this ground also defendants
submitted that plaintiff is not entitled to charge interest. The defendants
have disputed about mentioning of 18%p.a. interest on two invoices
because two invoices are silent to that effect. Therefore, considering this
dispute it is not desirable at this stage to direct the defendant to pay
interest amount. The question of interest would be decided on merit.
However, the Hon'ble Supreme Court in the cited judgment has laid
down grounds when the unconditional leave to be granted and when it
should not be. Here considering admission, documents, pleadings and
citation of the Hon'ble Supreme Court, at least it is necessary to direct
defendant to deposit principal amount of Rs.25,39,000/ then they
would be entitled to enter their defence. Accordingly Summons for
Judgment is made partly absolute. Unconditional leave to defend the
suit is rejected. Accordingly, I answer to point no.1 partly in
affirmative, point no.2 in the negative. Hence, following order is
passed:
O R D E R
1. Summons for Judgment No.205/19 is made partly absolute.
2. Leave to defend the suit is granted to the defendant subject to
deposit of amount of Rs.25,39,000/ (Rs.Twenty Five Lacs and
Thirty Nine Thousand) within 30 days from the date of this order.
3. If defendant fails to deposit the amount within stipulated time the
plaintiff shall proceed with the suit as if there is no defence.
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SJ 205/19 IN SUM.1208/17 ORDER 8
4. The Summons for Judgment No.205/2019 is disposed of
accordingly.
(C.V.Patil)
Adhoc Judge,
City Civil Court,
Date: 06.04.2022 Gr.Mumbai.
Dictated on: 06.04.2022
Typed on : 08.04.2022
Signed on : 12.04.2022
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
12/04/2022 4.00p.m. Mrs.Jyoti Mane
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
06/04/2022
JUDGEMENT /ORDER signed by P.O. on 12/04/2022
JUDGEMENT /ORDER uploaded on 12/04/2022
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