Final Order 2

Order Details: Copy of Judgment
Pdf Text: MHCC010079442019 Presented on 30.07.2019
Registered on 21.08.2019
Decided on 07.05.2026
Duration 06 Y, 09 M, 07 D
Exhibit 25
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMARY SUIT NO. 835 OF 2019
Hirachand Otermal Mehta ] .. Deleted
Sole Proprietor of Shom Health Care ]
Age 30 years, Occupation : Business, ]
Having registered office at 2/38, ]
Diamond Building, R. B. Marg, ]
Ghodapdev, Mumbai 400 033. ]
Legal heirs
1A. Mrs. Riddhi Hirachand Mehta ]
(Wife of the deceased) ]
1B. Master Parv Hirachand Mehta ]
(Son of the deceased) ]
1C. Mrs. Manjula Otermal Mehta ]
(Mother of the deceased) ] ...Plaintiffs
VERSUS
1. Nexus Diagnostic ]
Surgical & Pharmaceutical Products ]
Having its office at Unit No. 8 ]
Shilpin Centre, G.D. Ambedkar Marg, ]
Wadala (West), Mumbai 400 031. ] ... Defendant No. 1
2. Mr. Chintan Jain ]
Partner of Nexus Diagnostic ]
Age 32, Occupation : Business ]
Having address Unit No. 8, Shilpin ]
Centre, G. D. Ambedkar Marg, ]
Wadala (West), Mumbai 400 031. ] … Defendant No. 2
Appearance:
Ld. Adv. Bhakti Bhosle for plaintiff.
Ld. Adv. Chhangur S. Chauhan for defendants.
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CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 07/05/2026
JUDGMENT
(Dictated and pronounced in open Court)
01] This suit is filed under Rule 2 of Order XXXVII of Code of
Civil Procedure, 1908 (C.P.C.), by the plaintiff for recovery of amount
of Rs. 2,00,605/- along with interest at the rate of 9% p.a. from the
defendants. The original plaintiff expired during the pendency of the
suit therefore, his legal heirs i.e. present plaintiffs are brought on record
in view of order dated 16/06/2025 passed in Chamber Summons
No.469/2025.
Brief facts of plaintiff’s case may be summarized as under :-
02] As per plaintiffs, the deceased plaintiff was sole proprietor
of 'Shom Health Care' and carrying on business of Surgical and
Pharmaceutical products at address mentioned in cause title. Defendant
No.2 is partner of defendant No.1 i.e. Nexus Diagnostic and carrying on
business of Surgical and Pharmaceutical products at address mentioned
in cause title. Further, the plaintiff had purchased the goods from
defendant No.2 and paid an amount of Rs.2,00,605/- to the defendants
in cash on 19/03/2016 to defendant No.1. Further, defendant No.2 on
same day raised invoice No. W-01440 for said amount. It is the
contention of the plaintiff that on 16/03/2017 he had returned all
goods of Rs.2,00,605/- in good condition and without any shortage,
damage, expiry etc. to the defendants. Further, defendant No.1 has
acknowledged the same with duly stamped and signed by defendant
No.2. Thereafter, the plaintiff several times through telephonic calls and
through whatsapp messages called upon the defendants to return said
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amount of Rs.2,00,605/- against Purchase Return No.DN-0076 dated
16/03/2017. Defendant No.2 sought time to pay said amount however,
defendants failed to pay the said amount. Therefore, the plaintiff issued
Advocate letter dated 24/01/2019 and called upon to pay said amount
of Rs.2,00,605/- with interest at the rate of 18% p.a. to the defendants.
The said letter returned with remark 'Office was Closed'. Therefore, the
plaintiff issued second notice through Advocate letter dated
25/03/2019 and called upon to pay said amount of Rs.2,00,605/- with
interest at the rate of 18% p.a. to the defendants. The said letter was
served on the defendants however, they failed to repay the said amount.
Therefore, again the plaintiff issued 3rd and final legal notice dated
11/04/2019 to the defendants and called upon to pay said amount of
Rs.2,00,605/- with interest at the rate of 18% p.a. to the defendants.
After receipt of said notice, defendant No.2 replied it through whatsapp
messages and assured to look into matter. However, the defendants
failed to repay the amount therefore, the plaintiff is entitled for an
amount of Rs.2,00,605/- with interest at the rate of 24% p.a. from the
date of purchase return dated 16/03/2017 till its realization. Further,
both the parties are resident of Mumbai therefore, this Court has
jurisdiction to try the suit. The goods are returned on 16/03/2017 and
amount was demanded with the defendants on 11/04/2019 therefore,
the suit is within limitation. Hence, this suit.
03] Defendants have filed their written statement at Exh. 4 and
denied adverse contentions against them. The contents of the plaint are
false. The plaint has not paid an amount of Rs.2,00,605/- to the
defendant firm at all. The plaintiff has filed false documents and relied
on it. The defendants have not sold goods on credit basis to the plaintiff.
The goods were sold on the basis of order placed by the plaintiff and
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raised invoice No. W-01440 dated 19/03/2016 against the plaintiff. The
goods were supplied to the plaintiff in good conditions and the plaintiff
has never made any complaint with respect to quality of goods. The
defendants had sold goods to the plaintiff on credit basis and after
expiry of credit period demanded outstanding amount to the plaintiff
however, the plaintiff failed to pay the outstanding amount. The
plaintiff has returned goods after one year on 16/03/2017 in bad
condition. The said returned goods do not have value on the date of
return. The defendant suffered loss of Rs.2,00,000/-. The defendants
have not admitted any liability and never promised to pay for goods
returned. Further, the defendants have never received any demand
notice of the plaintiff. The defendants are not liable to pay any amount
to the plaintiff. Hence, suit may be dismissed with costs.
04] Considering the rival contentions of either side issues were
framed at Exh. 5. The issues are reproduced as follows. I have recorded
my findings thereon, for the reasons detailed as under:-
Sr.
No
Issues Findings
1 Whether the defendant proves that
plaintiff failed and neglected to pay
an amount of Rs.2,00,000/- against
the supply of goods ?
No.
2 Whether plaintiff proves that he
returned the goods to defendant in
good and marketable condition ?
No.
3 Whether plaintiff is entitled to
recover an amount of Rs.2,00,605/-
from defendant ?
No.
4 Whether the plaintiff is entitled for
interest at the rate of 24% on the
principal amount ?
No.
5 What order and decree ? As per final order.
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05] In support of claim, the plaintiff has filed affidavit of claim
of Mr. Hirachand Otermal Mehta as P.W. 1 at Exh. 6 and 6A. The
plaintiff closed his evidence vide pursis Exh. 25. The plaintiff has filed
and relied upon the following documents.
Sr.
No. Exhibit No. Particulars
1 Exh. 12 Office copy of Purchase Return No.DN-0076 dated
16/03/2017.
2 Exh. 13 Office copy of Invoice W-01440 dated 16/03/2016
i.e. acknowledgement.
3 Exh. 14 Office copy of acknowledgement of cash payment
voucher dated 22/03/2016.
4 Exh. 15 Printout of whatsapp communication between the
plaintiff and defendant No.2.
5 Exh.16 Office copy of Notices dated 25/03/2019 and
11/04/2019.
6 Exh. 17
colly
Original postal receipt and AD cards.
06] The defendants in their defence have filed evidence on
affidavit of Mr. Chintan Jain as D.W.1 at Exh. 27. The defendant filed
evidence closed pursis vide Exh. 28.
REASONS
As to Issue No. 1 :-
07] Perused plaint, written statement, oral and documentary
evidence of both parties. Heard both the parties. Plaintiff has filed
evidence on affidavit of Mr. Hirachand Otermal Mehta P.W.1 who has
reiterated contents in the plaint. It has come in his evidence that he is
sole proprietor of Shom Health Care and carrying on business of
Surgical and Pharmaceutical products. Further, the plaintiff had
purchased orthopedic goods from the defendants on 16/03/2016 vide
invoice No.W-01440 to the tune of Rs.2,00,605/-. Further, the plaintiff
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paid said amount in cash to the defendant. Mr. Chintan D.W.1 who has
admitted that the plaintiff had purchased the goods from the defendant
on 16/03/2016. However, he has denied that that the plaintiff has made
payment of Rs.2,00,605/- in cash as goods were given on credit. Mr.
Hirachand P.W.1 has denied suggestion during cross examination that
defendants had sold goods on credit basis. Further, during cross
examination Mr. Chintan D.W.1 has contended that tax invoice at
Exh.13 does not bear his signature or seal of the defendants. The
plaintiff has filed Tax Invoice dated 19/03/2016 raised by the
defendants at Exh.13 on record. On perusing said tax invoice, it appears
that the defendants have received amount in cash, as it bears
endorsement in handwriting that '
Received cash' signature and seal of
the defendant company. It is pertinent to note that defendants have put
suggestion to Mr. Hirachand P.W.1 during cross examination by referring
tax invoice at Exh.13 that quantities of the product mentioned therein is
small quantity. However, the defendants have not put suggestions that it
does not bear seal and signature of the defendants and endorsement is
not written by the defendants. It is pertinent to note that the defendants
have also not put suggestion during cross examination to Mr. Hirachand
P.W.1 that tax invoice at Exh.13 is forged and fabricated. Further, though
it is contended by the defendants that they had demanded outstanding
amount of Rs.2,00,605/- to the plaintiff. However, except bare
contentions in written statement and in evidence on affidavit, the
defendants have not pleaded the dates when they had demanded the
plaintiff to pay an amount. There is nothing on record to show that the
defendants had issued any notice to the plaintiff to demand amount of
Rs.2,00,605/-. Moreover, the defendants have not filed any suit for
recovery of Rs.2,00,605/- from the plaintiff. Even, neither counter claim
is filed nor set off is claimed against the plaintiff. Further, though the
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defendants have contended that the plaintiff has forged and fabricated
the documents at Exh. 13 and 14 however, the defendants have not
filed any complaint against the plaintiff. Therefore, mere denial by the
defendants that the plaintiff has not paid an amount of Rs.2,00,605/- in
cash is not sufficient. The plaintiff also relied on acknowledgment of
cash payment voucher dated 22/03/2016 at Exh.14. On perusing said
voucher, it appears that it bears signature and seal of the defendants.
On the basis of documentary evidence i.e. tax invoice at Exh.13 and 14,
it can be said that the plaintiff has proved that the defendants have
received an amount of Rs.2,00,605/- against purchase of goods. On the
contrary, the defendants have failed to prove that the plaintiff has failed
and neglected to pay Rs.2,00,605/- against supply of goods. Hence, I
answer issue No.1 in the negative.
As to Issues No. 2 to 5 :-
08] As issues No. 2 to 4 are inter-related and requires common
discussion in order to avoid repetition of facts and evidence. Perused
evidence of both parties on these issues and heard their submissions.
Mr. Hirachand P.W.1 has deposed that on 16/03/2017, he has returned
goods of Rs.2,00,605/- to defendant No.1 in good condition and
accordingly, raised Purchase Return No.DN-0076 dated 16/03/2017
against tax invoice No.W-01440 for amount of Rs.2,00,605/- dated
16/003/2016. The plaintiff has filed said purchase return No.DN-0076
at Exh.12 on record. Mr. Chintan D.W.1 has admitted that the plaintiff
has returned the goods on 16/03/2017 however, same were returned in
bad condition. On perusing Purchase Return No.DN-0076 Exh.12, it
bears signature and seal of defendant No.1. Thus, return of goods by
the plaintiff to the defendants is not disputed. Mr. Hirachand P.W.1 has
admitted during cross examination that goods were in good condition,
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there was no defect in goods supplied by the defendants and he had not
made any complaint after receiving goods with respect to quality of
products. Mr. Hirachand P.W.1 also admitted during cross examination
that he had returned said goods after one year however, denied that
said goods were in damaged condition and expired when it was
returned.
09] Further, Mr. Chintan D.W.1 has stated during cross
examination that the plaintiff had returned goods in their absence
without notifying them. However, he has stated that Exh.12 bears their
seal and signature and one of their employee had received said goods.
Further, he has stated that it is not mentioned in Exh.12 'subject to
inspection'. Though, during cross examination Mr. Chintan D.W.1 has
stated that after return of goods by the plaintiff, they had telephonic
communication with the plaintiff regarding damaged goods however, no
such telephonic communication is produced on record by the
defendants. Further, it is admitted by Mr. Chintan D.W.1 that he has not
produced any document to show that return goods were damaged.
Further, credit note of return goods were not given to the plaintiff. It is
also stated during cross examination by Mr. Chintan D.W.1 that they do
not maintain stock register and take entry of damaged goods. However,
the burden is on the plaintiff to prove that he had returned the goods to
the defendants in good and marketable condition. The plaintiff has
relied on invoices at Exh. 12 nor Exh. 13, though said invoices have
columns of '
Batch and Exp.' same are blank. The plaintiff ought to have
prove that goods were in good condition and marketable. Merely
because the defendants have accepted the goods without any remark, it
does not mean that inference can be drawn that goods were good and
in marketable condition because the plaintiff has returned goods after
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one year.
10] Further, it has come in the evidence of Mr. Hirachand P.W.1
that after return of goods to the defendants, they repeatedly demanded
by telephonic calls and through whatsapp messages called upon the
defendants to return said amount of Rs.2,00,605/- against Purchase
Return No.DN-0076 dated 16/03/2017. Further, defendant No.2 sought
time to pay said amount however, defendants failed to pay the said
amount. Therefore, the plaintiff issued Advocate letter dated
24/01/2019, dated 25/03/2019 and called upon to pay said amount of
Rs.2,00,605/- with interest at the rate of 18% p.a. to the defendants.
The plaintiff has filed said whatsapp messages communication and
office copy of letter dated 25/03/2019 are filed on record at Exh. 15
and 16. During cross examination Mr. Hirachand P.W.1 has stated that
mobile number is not mentioned in Exh.15 colly and chats are not
certified by concern mobile company however, denied that said
whatsapp chats are not that of the defendants. It is pertinent to note
that it is not specifically pleaded in the plaint between which mobile
numbers said communication took place and whether the mobile was
that of the defendants. Therefore, though the chats at Exh. 15 colly are
marked as exhibit however, same cannot be considered in evidence.
Moreover, it appears that though the plaintiff are demanding money
however, other side has not accepted and acknowledged his liability.
11] Further, Mr. Hirachand P.W.1 has stated during cross
examination that notice at Exh. 16 was sent to defendant No.1 and not
to the partner. Further, Mr. Hirachand P.W.1 has denied that notice was
not received by defendant No.1. On perusing notice at Exh.16, it
appears that notice dated 24/01/2019 and 11/04/2019 are marked as
Exh. 16 colly. So far as notice dated 24/01/2019 is concerned there is
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nothing on record to show that said notice was received by defendant
No.1. So far as notice dated 11/04/2019 is concerned it is received by
defendant No.1. As per provisions of Indian Partnership Act, 1932
notice to partnership firm at its registered address is generally
considered as legally sufficient, as the firm is not a separate legal entity
distinct from its partners. Therefore, though no notice is issued to
defendant No. 2, notice issued to defendant No. 1, partnership firm is
deemed to be notice issued to defendant No. 2.
12] It is the contention of the plaintiff that, as goods are
returned to the defendant for sum of Rs. 2,00,605/-, he is entitled to
recover the said amount from the defendants. Further, the plaintiff has
also claimed interest @ 24% per annum. On the other hand, it is the
contention of defendants that, goods were returned by the plaintiff in
bad condition. Therefore, they are not liable to pay any amount to the
plaintiff. The defendants have sustained loss of Rs. 2,00,000/-. Further,
it is the contention of defendants that the plaintiff has returned goods
after one year. Admittedly, in the present case, the plaintiff has retained
goods for period of one year and returned after it. Further, as per clause
3 of terms and conditions of Tax Invoice at Exh.13 raised by defendants,
it is specifically contended that, “
No claims for shortage, breakage,
expiry etc. will be entertained after the goods leaves our premises”.
However, as discussed above, the plaintiff has returned the goods on
16/03/2017 to the defendants, which the plaintiff had purchased on
19/03/2016. Further, there is nothing on record to show that, the
plaintiff had informed the defendants that goods were not as per the
description or said goods were not in good condition. As per Section 42
of Sale of Goods Act, 1930 the plaintiff as a buyer can retain goods for a
reasonable period. Admittedly, a period of one year cannot be said to be
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a reasonable period.
13] The plaintiff can return the goods if said goods are not as
per the description or not in good condition. In the present case, the
plaintiff witness has admitted during cross examination that goods
when he received were in good condition and he had not made any
complaint with respect to the quality of the said goods. It is pertinent to
note that the plaintiff has not mentioned any reason in the plaint as to
why he had returned the goods to the defendants. Further, the goods
returned by the plaintiff to the defendants are with the defendants.
Further, on perusing Purchase Return Invoice at Exh.12, it appears that
goods are received by the defendants. Further, if sale is completed the
buyer can return the goods and seller can accept the same. In the
present case, the plaintiff has returned the goods and the defendants
have accepted the same. Thus, it can be said that contract is altered as
per Section 62 of Indian Contract Act, 1872. Therefore, in such
circumstances, the defendants ought to have refund the price of goods
to the plaintiff as per Sections 64 and 65 of Indian Contracts Act.
However, the defendants have not given in writing that they are liable
to pay any amount to the defendants. Even, the defendants have not
given any Credit Note to the plaintiff. Chintan D.W.1 in his cross
examination has stated that he has not given Credit Note to the plaintiff
of returned goods. As per Order XXXVII of CPC, suit for recovery of
money is maintainable only if there is a written contract acknowledging
liquidated debt. In the present case, though there is a invoice at Exh.12
which shows that goods were returned to the defendants and
defendants have received the goods. This transaction only shows that
goods were returned to the defendants and they had not agreed or
admitted to refund the amount to the plaintiff. Therefore, I am of view
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that, though the plaintiff has brought on record that he had returned
goods to the defendants, there is no evidence that goods were in good
condition. Further, said goods were not returned to the defendants
within reasonable time and moreover, the defendants have not admitted
that they are liable to pay any amount to the plaintiff. Therefore, I am
of the view that the plaintiff is not entitled to recover an amount of
Rs.2,00,605/- from the defendants. So far as interest on the said
amount is concerned, the plaintiff has claimed interest @ 24% per
annum. However, the plaintiff has not proved by documentary evidence
that rate of interest of 24% per annum was agreed between the plaintiff
and the defendants. Therefore, the plaintiff is not entitled for interest @
24% per annum on amount of Rs. 2,00,605/-.
14] Thus, from the facts and circumstances in the case and
evidence on record, I am of view that, the plaintiff is not entitled for
reliefs claimed. Hence, I answer Issue Nos. 2 to 4 in negative and in
answer to issue No. 5, I proceed to pass following order :-
O R D E R
1) Summary Suit No. 835 of 2019 is hereby dismissed.
2) No order as to costs.
3) The decree be drawn up accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date: 07/05/2026. Court Room No.81
Dictated on:07/05/2026
Corrected and signed on:07/05/2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
07/05/2026 Uploaded by Mrs. Prachi Y. Potdar, Steno
Order typed by HHJ
Name of the Judge
(with Court Room No.)
Shri. Sangram S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
07/05/2026
JUDGMENT/ORDER signed by P. O. on 07/05/2026
JUDGMENT/ORDER uploaded on 07/05/2026
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