Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Presented on : 22.07.2019
Registered on : 22.07.2019
Decided on : 09.11.2021
Duration : 02 Y, 03 M, 18D
EXHIBIT-
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.207 OF 2019
(CNR NO.MH-CC01-007568-2019)
IN
SUMMARY SUIT NO. 1404 OF 2018
MR. PARESH JAGDISH SHAH ]
Aged about …...years, Occupation: ]
Business, Adult Indian Inhabitant of ]
Mumbai, carrying on business under ]
the firm name and style and as a ]
proprietor of M/s. Paresh Enterprise ]
at A/4, the New Vasant Villa, ]
Ground Floor, Amrut Nagar, ]
Ghatkopar (West), Mumbai-400086. ].. Plaintiff.
V/s.
MR. ABHIMANYU D. CHASKAR ]
carrying on business under the firm ]
name and style and as a proprietor ]
of M/s. Vinit Chemicals ]
at 1, Pehalwan Sheth Chawl, ]
Kulkarni Wadi, Asalpha, ]
Jangleshwar Mandir Road, ]
Ghatkopar (West), Mumbai-400 084. ]..Defendant.
Advocate Ms. Jyoti Singh for the plaintiff.
Advocate Mr. Upadyay the Defendant.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 9th NOVEMBER, 2021
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JUDGMENT
The Summons for Judgement is taken out in a suit for
recovery of amount of Rs. 1,31,000/– along with interest on the amount
of Rs. 1,02,695/– at the rate of 24% per annum from the date of
institution of the suit till the realisation of total decreetal amount.
2. It is the case of plaintiff that as per the purchase orders
placed by the defendant, plaintiff sold, supplied and delivered the
chemical goods worth Rs. 1,70,696/- under various invoices to
defendant. The details of the invoices are as under;
Date Bill No. Amount (Rs.)
26.07.2017 163 20,626.00
10.08.2017 187 32,096.00
22.08.2017 213 34,589.00
04.09.2017 241 30,385.00
TOTAL 1,17,696.00
3. It is the case of plaintiff that the goods were duly received
by the defendant as per the delivery Challans as under: –
Delivery Challan No. Date
163/17-18 26/07/2017
187/17-18 10/08/2017
213/17-18 22/08/2017
241/17-18 04/09/2017
4. Plaintiff sent the invoices to the defendant and he accepted
the same. Plaintiff requested and demanded on several occasions to
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make the said outstanding payment of Rs. 1,17,696/– to the defendant
but the defendant made a part payment of Rs. 15,000/– on
05/03/2018. The balance outstanding is Rs.1,02,695/–. Defendant
failed to pay the same in spite of repeated requests and demands.
Hence plaintiff issued a legal notice to defendant on 24/08/2018
demanding the outstanding amount along with interest thereon at the
rate of 24% per annum. Defendant replied the said notice on
31/08/2018 and denied his liability to pay the dues. Plaintiff rejoined
the same on 07/09/2018 to which the defendant replied.
5. It is the case of plaintiff that defendant is liable to pay the
interest at the rate of 24% per annum on the amount. Therefore, he
has demanded the amount of Rs. 1,31,000/– including interest is on the
date of institution of the suit.
6. The writ of summons was served upon the defendant.
Defendant appeared. Plaintiff took of summons for judgment. It was
served upon the defendant. Defendant appeared and filed his reply and
also requested for unconditional due to defend.
7. It is the case of Defendant that there is no cause of action
to the present suit. The summary suit is not maintainable in the present
form. The documents submitted by plaintiff are bogus. Defendant has
denied signatures on the delivery Challans and invoices. It is further
stated that the delivery Challans are vague and value of the goods is not
mentioned therein. Defendant has further stated that plaintiff has
created a false and forged documents after receiving the notice reply
from the defendant. Defendant has denied the contentions in the plaint.
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8. Considering the pleadings, documents on record and
submissions of both learned advocates, following points arise for my
determination and my findings to them are as stated below for the
following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff is entitled to the
Summons for Judgment as prayed for?
In the
Negative
2 Whether the defendant is entitled to the
leave to defend the suit?
In the
Affirmative
3 What Order ? As per final order
R E A S O N S
AS TO POINT NOS.1 TO 3:
9. It is important to note that in the reply to the summons for
judgement, defendant has come with the case of total denial. However,
in the notice reply dated 31/08/2018, the defendant had stated that he
and plaintiff were having a business relationship. Further in paragraph
No. 2 on page No. 5 of the notice reply, defendant had stated that “the
true fact is that since my client placed the purchase order to your client
but as usual your client failed to comply the order as per the order
placed by my client to your client”. These contentions clearly show that
there was certain business transaction between plaintiff and defendant.
In the notice reply, defendant has denied all other contentions.
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10. The defendant has denied that he signed the delivery
Challans and the invoices. He has further stated that the invoices are
forged and false documents prepared by plaintiff. In reply to the notice,
the defendant has come up with the case that the quality and quantity
of the goods supplied by plaintiff were not as per the order placed by
the defendant. In the circumstances, it is clear that the plaintiff will
have to prove the invoices and the delivery Challans by leading
necessary evidence before the court. The defendant hence challenged
not only the signatures but also the quality and quantity of the goods
supplied.
11. So far as the delivery Challans are concerned, they bear the
initials of the receiver. There is no stamp of defendant as such. The
name of receiver is also not mentioned on the delivery Challans. In the
circumstances, I find substance in the contentions of the defendant that
he has made out a triable issue regarding the receipt of the goods
supplied by the plaintiff to him. It is necessary for plaintiff to prove
those delivery Challans.
12. The total outstanding amount is Rs. 1,02,695/– as per the
case of plaintiff. Plaintiff is claiming interest at the rate of 24% per
annum. There is mention of the rate of interest in the invoice. However,
when the invoice itself is disputed, at this stage it is not necessary to
consider the amount of interest. In order to secure the performance of
the decree if any passed in favour of plaintiff, I feel it necessary to
import certain conditions upon the defendant while granting leave to
defend.
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13. Considering the defence raised by the defendant and the
suspicious circumstances prima facie appearing regarding the delivery
Challans, I feel it proper to direct the defendant to deposit the amount
of Rs. 50,000/– in the Court and furnish the performance Bank
guarantee of the balance amount of the claim excluding interest that is
Rs. 52,695/– initially for the period of one year and defendant shall
extend the same from time to time till the disposal of this suit.
14. In view of above discussion, I answer point No. 1 in the
negative, point No. 2 in the affirmative and in answer to point No. 3, I
proceed to pass following order.
O R D E R
1. Summons for Judgment is hereby rejected.
2. Leave to defend the suit is granted to the
defendant on depositing the amount of Rs. 50,000/–
along with performance Bank Guarantee of
Rs. 52,695/– to this court within 60 days from the
date of this order.
3. The mount of Rs.50,000/- if deposited by the
defendant, shall be kept in the fixed deposit by the
concerned Registrar of this Court initially for the
period of one year which shall be renewed for the
same period on expiry till further orders of this
Court.
4. The defendant shall furnish the bank guarantee
initially for the period of one year and extend the
same from time to time till final disposal of this suit.
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5. The suit shall be sent to the office for its
registration as regular suit after compliance of the
above two conditions by the defendant.
6. Summons for Judgment No. 207 of 2019 is
disposed off accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 09.11.2021 Gr.Mumbai.
Dictated on: 09.11.2021
Typed on : 09.11.2021
Signed on : 17.11.2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18.11.2021 AT 3.10 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
09.11.2021
Judgment/Order signed by P.O. on 17.11.2021
Judgment/Order uploaded on 18.11.2021
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