Final Order 10

Order Details: Copy of Judgment
Pdf Text: Commercial Suit No 131-19
	Sukanraj vs Shivaji Judgment
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MHCC010083182019 Presented on : 07-08-2019
Registered on : 25-09-2019
Decided on : 20-09-2025
Duration : 06Y. 01M. 13D
Exhibit : 51
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON, BOMBAY
COMMERCIAL SUIT NO. 131 OF 2019
Sukanraj Kasturchandji Jain,
Aged 61 years, carrying on proprietary
business in the firm name and style of
M/s. Hreenkarshree, having address at
6/8, Ground Floor, Vithoba Lane,
Vithalwadi, Kalbadevi Rd. Mumbai- 400
002. ...Plaintiff
VERSUS
Shivaji Kishan Jadhav, aged: Not Known
carrying on proprietary business in the
firm name and style of M/s. Sri Laxmi
Ganesh Jewellers, having address at
Market Road Bantwal D. K., Karnataka-
574 211. ...Defendant
Yashpal Jain, ld. Advocate for plaintiff.
P. M. Purohit, ld. Advocate for defendant.
CORAM : H.H. JUDGE SHRI SANJIV PRABHAKAR PINGLE,
COURT ROOM NO.32,
JUDGMENT
(Delivered on 20-09-2025.)
1) The present Summary Suit is instituted on 07.08.2019 under
Order XXXVII Rule 2 of the CPC 1908 for recovery of Rs.17,08,096/- as
per particulars of claim at Exhibit-‘F’ with further interest on
Rs.11,10,539/- @ 12% P.A. from the date of filing of the Suit till
payment/realization of the said amount.
( As per official endorsement on the last page/dock sheet of the
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plaint, it goes to show that Suit was registered instead of Summary Suit
as Commercial Suit and plaint was admitted on 25.09.2019).
2) In nutshell, the fact of the present case/Suit can be narrated
as under:-
3) Plaintiff is sole proprietor of Proprietary Firm 'M/s.
Hreenkarshree' carrying on proprietary business of making and suppling
Golden Jewellery & ornaments from the address at 6/8 Ground Floor,
Vithoba Lane, Vithalwadi, Kalbadevi Road, Mumbai- 400 002.
4) Defendant is also carrying on business of Golden Ornaments
in the name and style of 'M/s. Sri Laxmi Ganesh Jewellers'. Defendant is
sole proprietary of the said property firm, having address at, Market
Road, Bantwal, D. K. Karnataka 574 211.
5) It is the case of the plaintiff that plaintiff and defendant have
business transactions through broker / agent 'Suresh Rawal' for sale and
supply of gold jewelry. In the year 2013 defendant approached plaintiff
through broker / agent Suresh Rawal. Defendant informed plaintiff that
he has reputed name in the business of sale 'Gold Jewelry / Ornaments'.
Thus, defendant shown willingness to have business dealings.
Defendant assured to make prompt payments. Accordingly, on the basis
of the assurance given by the defendant, plaintiff pursuant to the orders
of the defendants, sold, supplied and delivered gold jewelry and
ornaments vide various invoices.
6) It is case of plaintiff that Defendant never raised any protest
or demur and accepted the gold ornaments as per corresponding
invoices. It is contended defendant agreed to pay the price of the golden
ornaments sold as per the terms and conditions of invoices within a
stipulated period of 7 days from the date of invoice, failing to pay entail
the interest @ 18% per annum.
7) According, to the case of the plaintiff amount of
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Rs.12,10,539/- was due and payable by the defendant on 01.04.2015.
Defendant paid Rs.40,000/- on 11.04.2015 subsequently on
13.05.2016 Rs.10,000/- by RTGS. The said payment was appropriated
towards the total outstanding invoices.
8) It is contended that Rs.345/- was adjusted as against invoice
No.39 leaving Rs.11,60,539/- due and payable amount by the
defendant to the plaintiff, at the agreed @ 18% P.A.
9) On 08.08.2017, defendant made further payment of
Rs.30,000/- by RTGS leaving the principle amount of Rs.11,30,539/- as
against invoice No.39. Subsequently, defendant made part payment of
Rs.10,000/- each on 30.05.2017 and 11.07.2017 (Total Rs.20,000/-)
leaving balance amount of Rs.11,10,539/- as a principle outstanding
amount as against Invoice No.39 (Exhibit-A). Same invoice No.39 is
duly received, signed and acknowledged by the defendant.
10) Plaintiff maintained ledger account of the defendant vide
Exhibit-B (Colly). The statements of account of the defendants firm for
the transactions for the period from 2015-2016, 2016-2017, 2017-2018
and 2018-2019 is also annexed with Exhibit-B (Colly).
11) Despite several requests made by the plaintiff, defendant
failed to make good the outstanding dues payable by him. Hence
Advocate notice Exhibit-36 dated 07.07.2017 was issued calling upon
defendant to pay Rs.11,30,539/- (?) alongwith accrued interest @ 18%
P.A. at (Exhibit-C). The said notice is duly received by the defendant
and replied by defendants Advocates letter dated 02.08.2017, falsely
denying the claim and liability of the said notice Exhibit-D. It is
contended that in the said notice at Exhibit-C i.e. Exhibit-36 wrongly
shows outstanding amount was mentioned as Rs.11,30,539/- instead of
11,20,539/-. It is clarified in plaint Para No.05.
12) It is also case of the plaintiff that he lodged police complaint
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in L. T. Marg Police Station on 15.11.2017 for cheating. Thereafter, filed
Criminal Case No.156/2017 in the Metropolitan Magistrate Court for
the offence of cheating. The said complaint is pending. Hence, cause of
action arose to institute Suit for recovery of Rs.17,08.096/- inclusive of
interest till the date of filing of the Suit.
13) It is contended that being the questioned transaction in
between the parties was in commercial in nature, therefore, as per
Section 12 A of the Commercial Courts Act the matter/ dispute was
referred for pre-institution mediation before filing suit. However,
despite notices issued twicely to the defendant, he failed to appear.
Hence, DLSA, Mumbai issued 'Non-Starter' Report on 11.06.2019
(Exhibit-E). Thereafter, filed the suit for recovery of amount as per the
particulars of claim at Exhibit-F, due and payable against Invoice No.39
dated 23.03.2015, as a Summary Suit under Order XXXVII of CPC by
paying necessary court fee. Hence, prayed to decree the Suit.
(Further judgment is deferred due to recesses.)
(Further judgment resumed at 3.00 P.M )
14) Written statement at Exhibit-8 31.01.2020 tendered as per
roznama dated 05.02.2020 and Additional written statement at Exhibit-
12 dated 17.03.2021 as per roznama dated 22.03.2021. Defendant
resisted the claim of the Suit.
15) It is contended that there is no legal and valid cause of
action. Plaintiff has not approached with clean hands and has
suppressed material facts from the Court. Suit is barred by law of
limitation and hopelessly time barred. Thus, suit is ‘bad in law’. Thus,
not maintainable. Hence liable to be dismissed with costs.
16) The Sum and substance of the additional written
statement as per similar previous written statement at Exhibit-8 by
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stating that nothing is due and payable by the defendant to the plaintiff
and prayed to dismiss the suit on this count alone. As per additional
written statement Para No.9, 11 & 13 it is stated, if the plaint is
perused, it is shown that the suit is filed under Order XXXVII Rule 2 of
CPC 1908, though it was not necessary to file under Order XXXVII Rule
2 of CPC in view of alleged amount involved is not more than
Rs.3,00,000/-. Therefore, it is prayed to decide at the first instance,
Whether the present suit is maintainable as a Summary Suit Under the
Commercial Court Act, 2015. Hence, prayed to dismiss the suit on this
count also.
17) It is also contended by defendant i.e. he proprietor of M/s.
Sri Laxmi Ganesh Jewellers. However, plaintiff filed suit against M/s.
Laxmi Ganesh Jewellers. Thus, Suit is bad for 'misjoinder' of parties. On
this count also suit is liable to be dismissed.
18) It is case of the plaintiff that he sold gold ornaments under
Invoice No.39 dated 23.03.2015 for Rs.11,60,884/-. However,
surprisingly, in plaint Para No.5 plaintiff shown outstanding amount of
Rs.12,10,539/- on 1.04.2015. Thus, plaintiff himself is not cocksure that
how Sum of Rs.12,10,539/- is shown to be outstanding. Hence, on this
count also Suit is liable to be dismissed.
19) The defendant disputed the Invoice No.39 dated 23.03.2015.
It is alleged to be false and fabricated invoice in the name of Lakshmi
Ganesh Jewellers. It is stand of defendant the alleged signature rubber
stamp on the said invoice is not signed by the Defendant Proprietor. The
said invoice No.39 is fabricated with the view to 'extort money' from the
defendant by filing a false suit on the basis of forged, fabricated &
disputed invoice. There are no necessary averments that the ornaments
were delivered under the said disputed invoice. Hence, prayed to
'impound the invoice' for purpose of sending it for verification.
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20) It is contended that there are no 'terms and conditions' over
the invoices regarding the interest claim @ 12% per annum. It is
contended that Golden ornaments were never Purchased and supplied.
Ledger accounts are false, bogus and fabricated entries have been
shown in the ‘books of accounts’, those are totally void. Defendant had
never admitted the liability. Hence, no question of paying interest and at
any rate, whatsoever, against the ornaments arises as ornaments which
were never received.
21) It is contended that Advocate demand notice dated
07.07.2017 is duly replied by reply dated 02.08.2017 denying the
liability of the defendant against the disputed invoice. No rejoinder to
the said notice reply was ever sent by plaintiff which falsifies the claim
of the plaintiff.
22) Lastly, the stand is taken by the defendant that there was
earlier dispute regarding the 'purity of the gold jewellery'. Since then,
defendants had stopped Purchasing golden jewellery ornaments from
the plaintiff. Therefore, plaintiff got annoyed and filed false and
frivolous Suit for harassing defendant to extort money.
23) It is contended that the 'real/true' name of the proprietary
firm of the defendant, in the disputed invoice is not correct name of the
defendant. Hence, on this count also, the suit is liable to be dismissed.
Defendant had never made any part payment towards the disputed
invoice No.39. Hence, prayed to dismiss the suit also for the reasons
that the 'Bangalore Court' would have jurisdiction and not the Mumbai
court.
24) Vide Exhibit-26 dated 02.01.2025, the issues were framed.
The additional issue is framed today, in view of the averments made in
written statement Para No.5 about 'misjoinder of the parties'.
25) Vide joint pursis at Exhibit-50, both the Ld. Advocates of the
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parties informed to the Court the additional-issue framed today was
elaborately dealt-with by both the sides, in their pleadings, evidence as
well as during the course of Cross-examination and arguments. Hence,
both parties don't want to lead further evidence. Hence, the matter is
taken up today for deciding it on its own merits.
SR.NO. POINTS FINDINGS
1 Whether the plaintiff is entitled to
recover a sum of Rs.17,08,096/-
including interest (Rs.5,97,557/-)
against the Invoice No.39 towards
sale of ‘gold jewellery’ with further
interest at 18% per annum?
Negative
2 Does the defendant prove that
Invoice No.39 is ‘forged and
fabricated’ document with intent to
extort money ?
Negative
3 Does the defendant further prove
that he did not receive goods sold
under Invoice No.39 ?
Negative
4 Does the defendant further prove
that the suit is hopelessly barred by
law of limitation?
Affirmative
5 Does the defendant further prove
that there is no legal and valid
cause of action to institute the suit ?
Negative
6 Does the defendant prove that this
Court has no jurisdiction and the
Cause of action to institute the suit?
Negative
7 Does the defendant further prove
that in the forged and fabricated
invoice, the incorrect name of
‘Laxmi Ganesh Jwellers Bantwal’ is
reflected?
Negative
8 Whether Suit is bad for mis-joinder
of Parties?
Negative
9 What order and decree? Suit is Dismissed
with Cost.
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REASONS
26) Heard, at length the ld. Advocate Shri. Yashpal Jain for the
plaintiff and ld. Advocate Shri. M. D. Mali for the defendant.
27) Ld. Advocate for the plaintiff also tendered their written
synopsis of argument at Exhibit-48 alongwith compilation of list of
Citation at Exhibit-48-A.
28) Ld. Advocate for the defendant also tendered his written
synopsis of argument at Exhibit-47 alongwith list of compilation of list
of citation at Exhibit-47-A (it is marked as Exhibit today).
29) In order to prove the suit claim, Plaintiff adduced his
evidence by tendering his affidavit of evidence at Exhibit-29 and relied
upon documentary evidence tendered vide Exhibit-18, 19 and 30,
whereas, defendant adduce his evidence as DW-1 vide Exhibit-32.
30) Plaintiff filed his statement of Truth and defendant also filed
his statement of truth on 02.08.2025 (it is marked today) as Exhibit-
27-A
31) In the case paper Additional Written Statement at Exhibit-12
of the defendant dated 17.03.2021 is filed after amendment of plaint. It
appears to be filed through earlier. Advocate for the defendant Shri. P.
M. Purohit, who tendered first written statement dated 31st January
2020 at Exhibit-8.
32) Plaintiff vide closure precipe at Exhibit-45 dated
21.08.2025 and defendant vide Exhibit-46 dated 04.09.2025 closed
respective evidence.
33) The bone of contention of Ld. Advocate Shri. Yashpal Jain for
the plaintiff is that the crux of the matter is, when the defendant having
admitted the part payment made by him as well as previous
transactions (i.e. previous dealings) with the plaintiff whether
defendant prove that there was no outstanding dues pending (of
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Rs.11,10,539/-) together with the interest as per the Claim of the
plaintiff in the present Suit. According to ld. Advocate Shri. Yashpal
Jain, the answer to the said Central controversy or the crux of the
matter is negative in view of observation of admission of Part payment
by defendant. Honorable High Court in its order 02.08.2024 in Writ
Petition No. 10250 of 2024. The answer to said mute question is also
negative as despite evidence being led by the defendant, he failed to
prove by producing cogent documentary evidence i.e. by filing
defendants own ledger accounts/accounts extracts to dislodge the
findings in the said order, Particularly made in Paragraph No.4 and 5 of
order of Hon'ble High Court.
34) According to the Ld. Advocate Shri. Yashpal Jain, it is the
case of the plaintiff that plaintiff and defendant transacted for the sale
of gold ornaments since the year 2013. The said fact of previous
dealings have been admitted by the defendants in Paragraph No.13 of
the written statement. The said fact has been duly observed in
Paragraph No.4 of the Order of the Honorable High Court.
35) The invoices produced by the plaintiff have been marked as
Article-X/1 and X/2. However, these documents/invoices have been
marked as Articles. Therefore, by no stretch of imagination Art.X/1 &
X/2 can be read by the Court. Moreover, according to ld. Advocate Shri.
Yashpal Jain for plaintiff, during the course of cross-examination of DW-
1 Shivaji Kishan Jadhav, has not disputed previous & earlier
transactions and old invoices. Therefore, it is argued that 'Article-X/1
and X/2' are required to be marked as Exhibits, Article-X/1 & X/2 are
invoices of old/previous transaction.
36) So far, the present controversy is in respect of the
'outstanding dues' as against, the invoice No.39. The ld. Advocate Shri.
Yashpal Jain vehemently argued on 01.04.2015, the outstanding
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amount payable by the defendant was Rs.12,10,539/-. Subsequently,
thereafter from 01.04.2015 till 11.07.2015, the defendant made part
payment of Rs.1,00,000/- in different trenches. It is pointed out that
amount of Rs.49,657/- were adjusted and appropriated towards the
previous invoices, Leaving balance amount of Rs.50,343/- said amount
was adjusted towards the last unpaid invoice No.39 for Rs.11,60,884/-
leaving balance amount, of Rs.11,10,559/-. Thus, suit is filed calming
balance due amount Under Invoice No.39 marked as Exhibit-37. Said
invoice at Exhibit-39 is duly signed by the defendant in presence of the
plaintiff proprietor & PW-1 put seal. The said fact remains 'un-
controverted' by the defendant, since there is no suggestion put to the
plaintiff during his cross examination denying the sad fact. Therefore,
there is no room of doubt about the said balance remaining amount to
be paid by the defendant against invoice No.39. Despite several
requests, the said outstanding amount was not cleared. Therefore,
advocate notice dated 07.07.2017 at Exhibit-36 was issued. However by
reply 02.08.2017, falsely the liability has been denied at Exhibit-35.
37) The ld. Advocate vehemently argued that though defendant
disputed invoice No.39, it is contended that the name depicted, in the
said invoices is either his name nor his firms name. It bears signature of
the defendant, however, if the notice reply at Exhibit-35 is perused, no
such grievance is made about the 'incorrect name' in the notice of
advocate dated 07.07.2017 issued by the Plaintiff through Plaintiffs
advocate Kishore Bhatia and Associates. Therefore, the said stand taken
by the defendant is afterthought, bogus, concocted and frivolous. Taken
such stand with a view for 'sake of convenience' to deny the claim of
the plaintiff.
38) The ld. Advocate Shri. Yashpal Jain also brought to the
attention of the court, even though, the defendant has taken such stand
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in his written statement at Exhibit-8 by adopting all the stand and
defenses taken in the earlier written statement In the additional written
Statement at Exhibit-12.
39) According to ld. Advocate Yashpal Jain, surprisingly, in the
notice reply at Exhibit-35 that it is not reflected there was dispute in
between plaintiff and defendant about the 'purity of the gold' in the
earlier transactions. when it is tried to paint a picture since there was a
dispute about 'purity of the gold' among the parties, thereafter, the
defendant stopped his business dealings with the plaintiff. Therefore, it
is alleged plaintiff with a view to harass and extract money from the
defendant, a afterthought stand has been taken that there was a dispute
about the 'purity of the gold' when defendant stop dealing with the
plaintiff. Hence, stand taken by defendant false, bogus and frivolous suit
has been lodged by suppressing material facts from the Court to extort
the money, is not at all digestible.
40) If really defendant had a such good defence, why he had
clear the outstanding dues of previous dealings. Assuming further for
the sake of argument, there was such a dispute in respect of 'purity of
the gold', then, it was incumbent upon the defendant to produce his
ledger account extracts/ all the invoices for which the orders were
placed time to time and the statement of account showing the balance
due amount of the defendant is nil. However, no such pains have been
taken by the defendant to rebut the documentary as well as oral
evidence.
41) The Learned Advocate Shri. Yashpal Jain for plaintiff argued
that defendant tried to confuse the Court by making an attempt to bring
in picture non existence issues with respect to the 'identity of the firm'
of the plaintiff i.e. M/s. Hreenkarshree. In plaint Para No.1, it has been
categorically mentioned that plaintiff is the 'sole proprietor' of the said
firm. Thus, the denial of the transaction pertains to the Invoice No.39
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i.e. Exhibit-37 is nothing but a feeble attempt to claim the said invoice
at Exhibit-39 as a disputed invoice. Merely if any document or invoice is
stated to be 'disputed', does not mean that it is a disputed invoice or a
document. The said stand of a disputed invoice has been taken with the
Malafide Intention and Ulterior Motive to deny the liability under the
invoices for the golden ornaments/Jewellery sold to the defendant by
the plaintiff, on a totally false and concocted defence about purity of the
gold, which is evidently and eventually from the facts and
circumstances of the case, emerges said defence to be a feeble attempt
to deny the liability by saying a false suit has been filed with the view to
extort money.
42) According to the Ld. Advocate Yashpal Jain, the argument
which is advanced 'No Better Particulars' of the amount of
Rs.12,10,539/- has been provided by the plaintiff is concern, Plaintiff
has categorically, precisely and elaborately has provided complete
details in Plaint Para No.5. Said Para indicates that the said argument of
not providing better particulars is a devoid of merits. Absolutely there
is no ambiguity or confusion in respect of the outstanding amount.
However, the said stand has been taken with a view to confuse the
Court so as to see the Court should dismiss the suit. Hence, prayed to
repel and reject the said contention about misjoinder of Parties or in
correct name of defendants firm in toto.
43) According to the ld. Advocate Yashpal Jain, So far as the
'electronic documentary evidence', which has been tendered by him is
duly supported by certificate contemplated under Section 65 B of the
Indian Evidence Act. Said 65-B certificate has been given by the plaintiff
himself as he is in charge and sole proprietor of the his business.
Therefore, even if, the printouts of the computer i.e. output of the
computer is downloaded by the accountant or his son, it is not required
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under the law that the certificate under 65-B has to be given by said
persons, who, downloaded the computer prints. On the other hand, the
law is very well settled which says that any 'responsible person', who is
in charge of the computer can issue such certificate. Hence, prayed to
reject the said contention and decree the suit in view of the ratios relied
by the plaintiffs supports the case of the plaintiff.
44) I have carefully gone through following ratios relied upon by
the plaintiff in the matter of
'I. K. Merchants Pvt. Ltd. V/s State of
Rajasthan & Ors. (2025 SCC OnLine SC 692)' . It deals with the aspect
of claim of interest and says that always obligation is attached to the act
of 'refund of money' received and retained, without having any legal
right, it implies and attracts to recover such amount retained along with
interest together.
45) In the matter of
'Vimlabai Bhayyalalsing Rajput (Bhandar) &
Ors. V/s. Anil Dadarao Washmare & Ors. [2018 (3) M. H. LJ. 522]
ruled that once a document is marked as Exhibit and admitted in
evidence, subsequent objection to the admissibility and marking of
Exhibit to such document cannot be raised at subsequent stage.
46) In the matter of
'Babybai W/o Pandurang Madankar V/s.
Ghelabhai Narayanji Sakariya [2020 (4) M. H. LJ. 209] it is ruled that
once a document is extensively referred in the cross-examination,
subsequently, parties are precluded from raising objection to the
admissibility of the document, on the basis of the said document
whereby extensive Cross-examination has been made.
47)
In the matter of Adi Burjor Banaji & Ors V/s. Bakhtawar
Maneksha Jijina (2022 SCC Online Bom 636) Our Hon'ble High Court
has ruled that if plaintiff witness is not cross-examined thoroughly on
the basis of documents tendered in evidence and if, such document
gone un-controverted or unchallenged in cross examination, in such
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facts and circumstances of the case, the only irresistible corollary would
be that those documents relied upon by the plaintiff or a party deemed
to be accepted by defendant or adversary party.
48) In the matter of '
Badat And Co. Bombay V/s East India
Trading Co. (1963) SCC Online SC 9)' it is ruled that if the denial is
evasive and if such denial is not specific as per order VIII Rule 5 of the
CPC then such fact which have been evasively denied and not
specifically controverted deemed to be admitted.
49) In
H. S. Dedi V/s. National Highway Authority of India (2016
SCC Online Del 432) the Hon'ble Delhi High Court has ruled unreliable
and unworthy credit-ness of the defendant as a witness, if defendant
gave false evidence. Therefore, such witness or defendant is liable to
prosecute for the offence of perjury under Section 340 of the Cr.P.C. for
giving either a false evidence or making a false statement.
50) The said ratio appears to be relied in support of the Notice of
Motion filed by the plaintiff bearing No. 4794/2025 against the
defendant, most probably for the fact that though in written statement
given admission about receipt of the notice/advocates letter dated
07.07.2017 at Exhibit-36, however a false statement made during cross-
examination denying said fact about Notice at Exhibit-36 & even reply
to said notice was given by defendant & also taken false stand in respect
of the name of the defendants firm or disputing the said name as well
as denying the 'part payment' and inconsistent stand taken in respect of
'purity or impurity' of the gold.
51) In the past transaction, stand of impurity of Gold was never
taken muchless in the notice reply dated 02.08.2017 at Exhibit-35.
However, it is the settled position Under law so far as the the
proceeding Notice of No. 4794 of 2025 Under Section 340 of Cr.P.C. it is
ruled that is it a 'separate proceeding', which is required to be registered
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separately. The enquiry in such proceeding for perjury is required to be
conducted separately. In such proceeding, no notice is required to be
given to adversary.
52) It would not be out of place to mention, at this juncture,
defendant also taken out proceeding under Section 340 of CrPC against
the plaintiff by filing Motion of Motion No. 4949 of 2025 by taking a
stand at one point of time, plaintiff says that he is 'ignorant' about the
fact, how to handle the computer. On the contrary, he says that he had
issued certificate under section 65-B of the Indian Evidence Act pertains
to the 'Ledger' maintained in the computer in 'Tally Software'. The prints
of computerized ledger have been tendered on the record vide Exhibit-
38 (Colly).
53) Be as it may be, both these Notices of Motions No.
4794/2025 & 4949/2025 have been already registered separately, at
both will be dealt with, in accordance with the law separately.
54) The Ld. Advocate for the plaintiff Shri. Yashpal Jain also
distinguished the judgments and citations relied by the defendant
stating that all the documents which are relied by the defendant are not
relevant to the facts and circumstances of the case. Hence, prayed not to
consider above ratios relied by plaintiff and decree the suit with cost.
55) The bone of contention of the ld. Advocate M. D. Mali for
the defendant is that in the cause title of the plaint, no where, the
plaintiff has mentioned the fact that he is the proprietor of the Plaintiffs
proprietary concern i.e. M/s. Hreenkarshree. Secondly, plaintiff PW-1
failed to prove that he is a proprietor of M/s. Hreenkarshree. No
document have been tendered to support the said contention that he is
the proprietor of the said firm M/s Hreenkarshree. Therefore, the ratio
is applicable relied by the defendant in the matter of
Milind Shripad
Chandurkar V/s Kalim M. Khan & Anr. Criminal Appeal No. 643 of 2011
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[ arising out of SLP (Crl.) no. 3045/08]. Gone through said ratio The
Hon'ble Apex Court ruled that if no documents are tendered to show
that a person claiming to be a proprietor of a firm, in such, facts and
circumstances, it cannot be consider that the said person is a proprietor
of the firm. Thus, it is argued by M. D. Mali that on this count alone, the
suit of the plaintiff is liable to be dismissed.
56) The second point canvassed vehemently by the learned
Advocate M. D. Mali is that the document at Exhibit-38 to 40-A and
Exhibit-40, though marked as Exhibits, however, these documents are
not proved at all, in accordance with the law. Therefore, it cannot be
read into evidence. In support of his said contention plaintiff relied
upon the ratio in the matter of
'Bama Kathari Patil V/s Rohidas Arjun
Madhavi and Anr.' (2004 (2) MHLJ 752 wherein it is ruled that it is a
settled law if any document relied by any party, such party required to
prove such document in accordance with the provisions of Indian
Evidence Act. To mark a documents, is a ministerial or administrative
act. The purpose of marking a document is to identify the document
and nothing else. Therefore, if at all, the documents are marked, it does
not mean that the contents of the documents are proved in accordance
with the law. There cannot be any dispute or quarrel about the said
ratio. It is settled law, even if, the document is marked as exhibit, the
party relying upon such document is required to prove its contents, in
accordance with the law.
57) Thus, ld. Advocate Shri. M. D. Mali vehemently submitted
that contents of the documents of Exhibit-38 to 40-A and 41 are not at
all proved in accordance with the law. Therefore, plaintiff failed to
prove its case within the Four Corners of law. Hence, prayed to dismiss
the suit, as the contentions made in Para No.5 if taken into account,
there are contradictory statements about the due payable balance
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amount by the defendant as on 01.04.2015 , assuming for the sake of
argument that goods are supplied as per invoice No.39 marked at
Exhibit-37.
58) There are different version in the plaint para No.5 which
says that as on 01.04.2015, the outstanding due and payable amount by
the defendant is stated to be Rs.12,10,539/-. Further, as per the said
Para, three different amounts has been shown to be balance amount,
Firstly, Rs.11,60,539/-, Secondly, Rs.11,10,539/- and if these amounts,
are taken into account in respect of third amount Rs.12,10,539/-
reflected in the said para, it goes to show that the plaintiff is not cock-
sure, how much amount is outstanding against the defendant.
59) The attention is also brought to the Court notice by the ld.
Advocate Shri. M. D Mali in respect of the averments of the Plaint Para
No.9, whereby, it is stated that in the Advocates notice dated
07.07.2017 at Exhibit-35, Outstanding amount has been stated to be
wrongly mentioned as Rs.11,30,539/- and correct amount is
11,20,539/-.
60) Then attention is also brought towards the particulars of
claim at Exhibit-F, wherein Outstanding principal amount due and
payable by the defendant has been shown as Rs.11,10,539/- along with
the interest @12% per annum.
61) The outstanding amount of the invoices till 06.08.2019 have
been shown Rs.5,97,557/-. Thus, shown the total claim of
Rs.17,08,096/-. Therefore, if these amounts are taken into
consideration, it goes to show that the stand of the defendant that the
suit is false, bogus, frivolous and fabricated lends support and hence,
prayed to dismiss the suit on this ground alone.
62) The ld. Advocate Shri. M. D. Mali further vehemently
pointed out if the certificate under Section 65-B at Exhibit 42 is taken
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into account pertaining to the Exhibit-38 to 40-A i.e., the ledger
accounts have been stated to be maintained in computer ledger by using
'Tally Software'. However, those entries in the accounts ledger have not
been proved. Merely stating that these ledger entries are computer
generated entries so stated in the said certificate, ipso-facto, would not
prove the contents of these accounts ledger. Hence, prayed not to
consider the ledger accounts extract at Exhibit-38 to 48-A, which are
not proved, at all, in accordance with the law.
63) It is pointed out PW-1 himself has admitted that he not able
to handle the computer. PW-1 is ignorant how to handle the computer.
Therefore, the certificate issued by him at Exhibit-42, under section 65-
B, is of no use at all.
64) In support of his contention, ld Advocate Shri. M. D. Mali for
defendant relied upon the guidelines given in the matter of
Anvar P. V.
versus P. K. Basheer and others Civil Appeal No.4226 of 2012
reitreated by the Hon'ble Apex Court. Ratio of the
Chandrabhan Sudam
Sanap versus The State of Maharashtra Criminal Appeal No. 879 of
2019, Supreme Court of India, decided on 28.01.2025 ruled that
certificate under Section 65-B (4) is a condition precedent to the
admissibility of the contents/evidence tendered by way of electronics
record. Therefore, ratio of 'Chandrabhan Sudam Sanap' (Supra) is also
applicable on the basis of the ratio of the Hon'ble Supreme Court given
in the Matter of
Anvar P. V. versus P. K. Basheer (Supra). Hence, prayed
to discard the certificate at Exhibit- 42 under section 65-B, as Exhibit-38
to 40-A are not proved by calling a bank witness. It is pointed out that
Exhibit-38 to 40-A are not supported by mandatory certificate
contemplated under Section 2A of the Bankers Book Evidence Act. As
per the ratio of our Hon'ble High Court in the matter of
'Sadanand @
Sadashiv Vasant Bangar Versus Sandeep Devidas Fate & Anr Writ
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Petition No. 1618/2019 decided on 20.10.2023. The bank statement at
Exhibit-41 filed by plaintiff is not supported by such certificate under
Section 2A of the Bankers Books Evidence Act. Moreover no bank
witness has been called to prove the contents of the said bank
statement.
65) The ld. Advocate Shri. M. D. Mali vehemently argued that
plaintiff failed to prove sale of golden ornaments or jewellery. So also it
is not proved that golden ornaments were delivered to the defendant
Under the disputed Suit Bill/Invoice No.39 marked at Exhibit-37 in
accordance with the law. There is no description or nomenclature and
weight of what sort of the gold jewellery is reflected in disputed bill. It
creates doubt. The said invoice is a false, bogus and fabricated. Thus,
no description & weight of ornaments or golden Articles/
ornaments/jewellery sold has been depicted or reflected in the said
invoice. Prima-facie it goes to show that it is a concocted, false, bogus
and fabricated documents. Hence, prayed to dismiss the suit also on this
Count as plaintiff failed to produce the books of account in support of
the disputed transaction & entries showing said disputed transaction.
66) So far as the aspect of interest to be paid and the terms and
conditions about the interest are concerned, it is vehemently argued
that being the Exhibit-37 disputed Bill/will No. 39 is not admitted and
denied in toto and not proved in accordance with the law, therefore, no
question of interest would crop-up to be paid by the defendant,
especially when he is not liable to pay the principal amount. Thus, no
question arises about the interest to be paid and claimed vide
particulars of claim at Exhibit-5.
67) It is contended, that if at all, the date of the disputed bill is
taken into account, date 23.03.2015. If the date of filing of the suit is
taken into consideration, the suit is filed on 07.08.2019. Prima-facie it
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goes to show that the suit is hopelessly time barred. On this ground of
limitation Suit is liable to be dismissed.
68) Further, plaintiff failed to issue debit note for the alleged
claim or interest. No documentary evidence has been tendered to show
that these entries have been reflected in his income tax returns. It falsify
the case of the Plaintiffs. It is incumbent and mandatory as per the GST
Act and Rules r/w Income Tax Returns that the amount of interest has
been shown in the GST Returns. The specific cross-examination is
conducted on the said point. Surprisingly, PW-1 one has shown his
ignorance about the said fact of showing claim of the interest in the
GST Returns, which, prima-facie falsify the claim in toto
69) It is contended that as per Section 16 of C.P.C, the defendant
is carrying on business in Karnataka. Therefore, the Court in the state of
Karnataka would have jurisdiction. Mumbai Court would have no
jurisdiction to try & adjudicate and decide the dispute among the
parties. Hence, prayed to dismiss the suit alone on the ground that this
Court has no jurisdiction to try and entertain the suit in between the
parties, being the jurisdiction west in the court in Karnataka state. Thus,
prayed to dismiss the suit as plaintiff failed prove that defendant is
liable to pay and make good the arrears of Rs.11,60,884/- along with
interest as against the disputed invoice bill No.39 at Exhibit-37 dated
23.03.2015 remotely within the Four Corners of law.
70) After considering the oral as well as written submissions
advanced at length, at the very outset, I would like to point out that
there cannot be two opinions or quarrel about the ratios relied upon the
both parties. The only question would arise, weather in the facts and
circumstances of the case the ratio decidendi can be applicable to the
facts evidence oral or documentary adduced by the parties.
71) It is pertinent to note as per the issue No.1, the burden to
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prove that the amount due and payable as per particulars of claim at
Exhibit-F by the defendant is on the shoulder of the plaintiff PW-1. The
moment, if discharged the said initial burden. It is a settled 'rule of law'
that plaintiff cannot take the benefit of the weakness of the defendant.
It is the cardinal principle of law that plaintiff has to stand alone on his
foot. So, keeping in mind the said Cardinal Principle of law, let-us-see
whether the plaintiff has discharged the initial burden, So as to see
whether the onus which is always oscillating on the basis of the adverse
pleadings of the party & evidence led would rest on the shoulder of the
defendant.
72) The issues are framed vide Exhibit-26 dated 02.01.2025 and
additional issue is framed today, in view of the averments in para No.5
of the written statement that the name of the defendant firm is not M/s.
Laxmi Ganesh Jewellers. Said name is reflected in the disputed invoice
No.39 at Exhibit-37 is not the correct name of the defendants firm i.e.
M/s. Sri Laxmi Ganesh jewellers. Therefore, come-up with the case that
suit is bad for 'misjoinder' of the parties. The said issue being based on
the law, therefore, it was incumbent upon the court to frame the said
issue on law in consonant with the pleadings of the parties. Therefore,
additional issue is framed.
73) Fairly both the ld. advocates by filing 'joint pursis' at Exhibit-
50, informed to the court that the said issue has been extensively dealt
by the both parties during in their pleadings, evidence, argument and
during cross-examination, therefore, they don't want to adduce
additional evidence in respect of framing of the said additional issue.
74) The the onus so far as the issues No.2, pertains to the false,
forge, bogus and fabricated and concocted invoice No. 39 at Exhibit-37
is concerned is on the shoulder of defendant.
75) It is the basic rule of law of pleading is, one 'who pleads to
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lead' and prove the fact averred. Defendant have come up & plead that
the alleged disputed invoice No.39 at Exhibit-37 is 'forged and
fabricated' document. Therefore, the onus like issue No.2 and issue
No.3 are also on the shoulder of the defendant.
76) Similarly, the burden of the other issues No.3 to 7 pertaining
to the fact alleged as per stand of the defendant i.e. goods reflected in
invoice No.39 at Exhibit-37 were never received has to be proved by the
defendant by adducing cogent evidence or producing documentary
evidence.
77) So also defendant pleaded the fact that there is no 'legal and
valid' cause of action to institute the present suit. As per section 16 of
CPC being the defendant is residing in the Karnataka State, therefore, as
per defendants pleading, the 'Bangalore Court' would have jurisdiction
to try and decide the dispute amongst them. The onus is on the
shoulder of the defendant to prove that the faulty or incorrect name
reflected in disputed Invoice No.39 at Exhibit-37 i.e. Laxmi Ganesh
Jewellers Bantwal is not the firm of the defendant. Especially, when no
such stand is taken in the notice reply by defendant when the similar
name was reflected in advocates notice letter 07.07.2017 at Exhibit-36.
The notice reply of defendant is at Exhibit-35 dated 02.08.2017.
78) Fate of Suit ultimately depends the additional issue. If
defendant succeeded in showing the fact that the name reflected in
invoice at Exhibit-39 at Exhibit-37 'Laxmi Ganesh Jeweller', Bantwal,
does not belong to the defendant, then, resultantly the additional issue
framed today required to be answered in affirmative by concluding that
the suit is 'bad for misjoinder' of the parties. If it is proved that the
correct name of the Defendants firm is M/s. Sri. Laxmi Ganesh
Jewellers, Bantwal and the name reflected in Exhibit-37 are one & same
firm belongs to defendant, then Suit would Succeed.
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79) It would not be out of place to mentioned that when the
stand or defence which has been taken into the written statement at
Exhibit-8 by the defendant about 'purity or impurity' of the gold
ornaments or jeweller is concerned, admittedly, it has not been taken at
the first instance, when the opportunity was available to the defendant
to take such stand or defence while refuting the mandate of the
demand notice about the Suit claim i.e. about not payment of the dues
payable by the defendant against Golden jewellery or ornament sold.
No doubt, defendant it is denied said liability, however, evasively,
without raising a defense taken in to written statement in the notice
reply at Exhibit-35. Therefore said defence looses its credens.
80) Considering rival pleadings and the evidence laid by the
parties and documents relied only by the plaintiff, however, not by the
defendant, to show that no dues were outstanding pertains to the
erstwhile transaction by tendering his ledger accounts or bank accounts
showing the outstanding amount is nil or zero.
81) In the fact and circumstances of the case, if a party, who, is
having the best evidence to support one contentions, if such documents
are not tendered and retained with him, it leads into drawing an
'adverse inference'. Time and again, ruled by the all the Hon’ble
Superiors Court, the Court is required to draw adverse inference why
the document i.e. best evidence in the custody, party if tendered would
have shattered the case of the adversary & if such best evidence is not
produced, adverse interference required to be drawn against such party.
82) Therefore, keeping in mind these vital aspect, now let-us-see
what evidence has been led by the PW-1 vide Exhibit- 29.
83) It appears that PW-1 testified as per the plaint pleading by
reiterating the facts on oath by testifying that there were business
transaction with the defendant since the year 2013. The outstanding
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dues on 01.04.2015 is Rs.12,10,539/-, due and payable by the
defendant, inclusive of principle amount of Rs.11,60,884/-. It is stated
that on 11.04.2015, Rs.40,000/- and Rs.10,000/- on 13.05.2016 were
paid by RTGS. Said amounts were appropriated toward outstanding
amounts leaving balance as against invoice No.39 to the tune of
Rs.11,60,539/-. It is stated that Rs.345/- was adjusted and appropriated
towards Invoice No.39 at Exhibit-37. Further testified that again
Rs.10,000/ each was made at two occasions on 30.05.2017 and
11.07.2017 total 20,000/- leaving behind the principal outstanding of
Rs.11,10,539/-.
84) PW-1 further testified that necessary ledger accounts about
the transactions for accounting year 2015-2016, 2016-2017, 2017-2018
have been produced along with bank statement. Therefore, PW-1
proved the said fact about outstanding dues as per particulars of claim
at Exhibit-F. Hence, PW-1 prayed to grant decree.
85) The stand of the defendant is that the correct name of the
firm is M/s. Sri Laxmi Ganesh Jeweller, said name is true & correct
name. It is a afterthought stand that name reflected in invoice No.39 is
incorrect name & said stand is taken with malafide intention and
ulterior motive by saying that the name of the firm reflected in invoice
'Laxmi Ganesh Jeweller' is not the defendants firm.
86) I have carefully gone through the case paper. It appears that
subsequently, by amending the suit, Plaintiff got corrected the name of
the plaintiffs firm instead of M/s. Laxmi Ganesh Jewellers it has been
now amended suitably as M/s. Sri Laxmi Ganesh Jewellers. Assuming
that name was amended after filing a written statement, however when
my ld. predecessor allowed to correct the name in the causetitle of the
plaint, the nomenclature of the firm of the defendant now corrected.
The said amendment relates back to date of the filing of the suit.
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Therefore, now, only question remains to consider, whether as
stand/defence taken by the defendant, i.e. the name of the firm 'Laxmi
Ganesh Jewellers' reflected in Invoice No. 39 at Exhibit-37 is not of his
firm ? Said objection in name can sustain ? It is worthy to note that
Defendant has denied his signature over Invoice No.39 at Exhibit-37.
Alleged signature is at the left hand side of the invoice. Said signature
is denied by defendant. The mute question arises, really it is not
signature of defendant ? Whether it is of someones signature ? These
mute questions is required to be considered, So as to Consider, the
stand of the defendant that the said invoice is false, bogus, fabricated
and frivolous and brought into existence to suit the purpose 'to drag and
extort the money' from the pocket of the defendant.
87) The ground of 'impurity' of the gold was raised by the
defendant. Defendant, thereafter stopped the business relationship with
the plaintiff. In such scenario, whether, now, when the initial burden of
proving the claim as per the particulars of claim at Exhibit-F have been
discharged, it is necessary to see, whether the defendant has shattered
the testimony of PW-1, especially, when it is the insistence of the ld.
Advocate Shri. Yashpal Jain to consider the observation made by the
Hon'ble High Court in its order Para No.4 and 5. It is observed that
Defendant has admitted the part payment. In view of said admission
therefore, Hon'ble High Court directed to deposit 50% amount of the
bill amount. Advocate, Shri M. D. Mali argued that prima-facie
observations, after trial, cannot be considered. The court will have to
decide the dispute on the basis of evidence led by the parties.
88) I found substance in submission of ld. Advocate M. D. Mali.
Therefore, now let us see, whether by way of cross-examination
defendant shattered the testimony of PW-1 ? Secondly, whether, even
assuming, wrongly or rightly, if the documents are marked Exhibit may
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be for the 'identification purpose', it is settled law that mear exhibition
of document, does not, 'ipso-facto' proves the contents of the document.
This aspect becomes 'res-integra' in view of several dictum, time to time
pronounced by Hon'ble Superior Courts.
89) Vital question arises for consideration, whether plaintiff has
proved the contents of the document ? If documents is not proved, and
if, the substantial cross-examination is conducted on the basis of those
documents, Whether it can be concluded that these documents have
been admitted by the defendant ? in view of the ratio relied upon by the
plaintiff in the matter of
'Vimlabai Bhayyalalsing Rajput (Bhandar) &
Ors. (Supra).
90) The Ld. Shri. M. D. Mali brought my attention towards
roznama dated 10.06.2025. It appears that this court adjourned the
matter for proving the documents by way of additional evidence. It is
rightly pointed out by the ld. Advocate for defendant that these
documents have not been proved by adducing additional evidence.
91) After having gone through the cross-examination, the Sum
and substance of the testimony of PW-1 is that he is 10th Standard
educated person having a secondary school certificate. PW-1 taken the
education in Hindi medium. Therefore, unable to understand the
English Language. Specifically PW-1 stated that he cannot read or write
English language.
92) PW-1 further stated that he has having five staff members in
his office. Staff members are helping him in his business as an
employee. PW-1 also testified that his son 'Akshay' is also working with
him & helping in his business. PW-1 looked after all sale and purchases
of his businesses. PW-1 availed services of the accountant since year
2015. Initially late Sardarmal was accountant. Sardarmal is now no
more. Therefore, thereafter, his son Akshay is looking after the accounts
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of his business.
93) PW-1 admitted that for doing his business, he has to maintain
sale and purchase registers as well as stock register. However, despite
said fact these registers are not produced.
94) PW-1 fairly admitted that he has not tendered any document
to show that he is the proprietor of firm M/s. Hreenkarshree. PW-1 is
conducting business Under the said name and style M/s. Hreenkarshree.
PW-1 is doing Gold Jewellery Ornament business. However, he denied
that he has no legal authority to file the suit. PW-1 further denied that
all Oral and documentary evidence are beyond his control and
authority. The said question was objected at the relevant time by the ld.
Advocate for the plaintiffs Shri. Yashpal Jain for the reasons that there is
no pleading to that effect in the written statement. True is that no such
stand is taken by defendant.
95) In written statement, there is no challenge to the authority to
file the suit by the plaintiff is made by defendant. However, merely
being the question is allowed to ask, the primary duty is to plead said
fact by the defendant is must. It does not 'ipso-facto' absolve, to dispute
the right to file the suit as a proprietor of the firm of M/s.
Hreenkarshree unless it is pleaded.
96) If there is no objection raised to the authority to file Suit in
the pleading or written statement, such objection can't be permitted to
raise subsequently. The said stand without pleading would not come to
the aid of the defendant disputing the authority to file the suit in the
capacity of a proprietor or a proprietary concern, even ld. Advocate
Shri. M. D. Mali has rightly pointed out that in cause title of the plaint,
it is not stated clearly that plaintiff is proprietary concern. However, in
the plaint Para No.1 it is stated PW-1 is the sole proprietor of the
plaintiff. Hence, I do not found any merits in the said objection. With
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utmost respect, the authority relied would not come to the aid of the
defendant.
97) Further perusal of the cross examination it goes to show that
it has come on record that there were previous past transaction in
between the parties i.e. especially defendant i.e. Sri Laxmi Ganesh
Jewellers & Plaintiff. It does mean really the defendant is so serious
about the correct nomenclature of the firm of the defendant, is M/s Sri
Laxmi Ganesh Jewelers. However, surprisingly no suggestion appears to
be given Name Sri Laxmi Ganesh Jewellers, it also differs, if really the
correct name is taken into account as per the stand of the defendant &
correct nomenclature M/s. Sri. Laxmi Ganesh Jewellers & not Sri. Laxmi
Ganesh Jwellers.
98) It is rightly pointed out that in notice reply at Exhibit-35
dated 02.08.2017 given by the ld. Advocate B Venkataramana Shenoy,
who is 'Advocate and Notary and Mediator' (High Court of Karnataka)
R/o Jodumarga P. O., Jodumarga-574219, in second para of the notice it
is averred as under:-
Unnumbered Para No.2 of Exhibit-35:-
. It is true that, my client Mr Shivaji Kishan Jadhav is the
proprietor of M/s. Laxmi Ganaesh Jewellers. If it is so, word 'Sri' as
missing. Thus, the pains taken by the plaintiff for amending the Suit by
inserting the word 'Sri' in the cause title of the plaint in the name of the
defendant proprietary concern appears to be made without going
carefully through the notice reply at Exhibit-35.
99) Absolutely, it was not at all necessary to amend the plaint as
per stand taken in the written statement by the defendant at Exhibit-8
r/w Additional written statement at Exhibit-12 as the case may be.
100) So the very averments of the notice reply of the ld. Advocate
of the defendant, who, replied the notice at Exhibit-36 falsifies the said
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stand. Resultantly, the said stand taken about in correct or wrong
nomenclature of firm is deliberate with malafide intention to mislead or
misguide the Court or to drag the matter with vested interest.
101) It would not be out of place here to point out that
surprisingly, when the notice reply at Exhibit-35 has been tendered on
record and marked at Exhibit-35, DW-1 Shivaji Kishan Jadhav has dare
to deny either the receipt of notice at Exhibit-36 dated 07.07.2017 or
his own reply at Exhibit-35. It shows that DW-1 has made an incorrect
statement. Therefore, now there is little doubt about the evidentiary
value of the DW-1, in the facts and circumstances of the case which
falsify his testimony to his own case or stand & his testimony is not
reliable.
102) Mere denial, as, rightly pointed out, which is evasive denial
is not contemplated as per Order VIII Rule 5 of the CPC. There must be
a specific and categorical denial. Therefore, the ratio relied upon for
said point would squarely applicable to the facts and circumstances of
the case.
103) It is evident, if further testimony of the plaintiff PW-1 is taken
into account, except the fact admitted by PW-1 that he do not know
how to run or operate the computer, does not mean that he is not
incharge of computer in the capacity as proprietor of the business of
M/s. Hreenkarshree who deals in the gold business. Admittedly, parties
to Suit had a previous business transaction. Defendant is resident of the
Bedaputta, at Karnataka State. Plaintiff has no reasons to drag the
defendant by filing a false and frivolous suit. The stand taken by
defendant in respect of the dispute of ‘purity of gold’ is not remotely
probable within the principle of preponderance of probability.
104) It is the Cardinal Principle of Law which is required to be
considered by Court for testing the probable or possibility of defence or
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probable defence of either of adversary parties. So, neither, the defense
of a impurity of gold is remotely established, being mear statement,
without proof ‘ipso-facto’, which is absent in the notice reply about
impurity of gold is not proved at all. The evidentiary value of the DW-1.
Shivaji is doubt full so far as stand of impurity of gold. Therefore,
merely because ‘ignorance of the knowledge of the computer’ or if
prints are downloaded either by accountant or his son and if the
certificate, in the capacity of a ‘in-charge of the business’, is issued by
PW-1 in accordance with the law, such certificate cannot be faulted.
105) Therefore, the said admission of PW-1 about ignorance of
knowledge of computer cannot said to be a fatal to the case of the
plaintiff. PW-1 has specifically stated that he is using a ‘Tally Software’
in his computer for maintaining a Ledger e-Account. If a certificate
under evidence act 65-B is given by him, it cannot be said that those
entries are not proved which are maintained in regular course of the
day to day business taken promptly & punctually. Hence, I do not found
any merits in the said objection. It is not remotely established that the
Invoice No.39 at Exhibit-37 has been proved as a forged, false,
fabricated, concocted as per the stand of the defendant. The said
defense also appears to be taken for the sake of convenience.
106) If at all, if fraud has to be proved, it has to be proved by
leading a cogent evidence in consonance with pleading. No doubt the
cross examination has been taken show that the Invoice Number -39 at
Exhibit-37 is not taken out from the bill book, if the edges of the said
bill is perused. It is alleged that Exhibit-37 to be not part and parcel of a
bill book. Exhibit-37 alleged to be taken out of the bill book. It is
suggested that Exhibit-37 is a loose paper ‘fabricated as a invoice’ for
the sake of convenience. Mere saying or suggesting, so the said
objection cannot said to be proved within the four corners of law to
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come to the conclusion, when the onus is shifted on the shoulder of the
defendant to prove Exhibit-37 is a forged and fabricated document.
Hence, I do not found merits in the said objection.
107) So far as objection taken about Mumbai Court having no
jurisdiction is concerned, no doubt as per section 16 of CPC defendant
is resident of State of Karnataka. Therefore, as per the said section, the
law says, the Court where the defendant generally resides or does
occupation or business, that place would have a jurisdiction to try and
adjudicate the dispute among the parties.
108) However, at the same time, Section 20 of the CPC is also says
that the place where the part cause of action arose is also having
equally jurisdiction to try & adjudicate the Suit.
109) It is the case of the plaintiff that the order was placed at
Mumbai, Goods were supplied from Mumbai, money was received from
Karnataka State at Mumbai. Therefore, the Mumbai Court has
jurisdiction. If it is so and the said facts are averred, then there is no
substance that Mumbai Court have no jurisdiction and only Bangalore
court would have jurisdiction. Therefore, I do not found any merits in
the said objection raised in respect of jurisdiction.
110) It is pertinent to note that both the plaintiff and defendant
initially as per law failed to tender the respective statements of truth on
their behalf. Plaintiff & Defendant both at belated stage, by seeking
subsequently permission of the court, have tendered their respective
'statements of truth' belatedly vide Exhibit-23 by defendant at Exhibit-
27-A respectfully.
111) So far as the point of limitation is concerned, the defendant
have come-up with a specific stand, if at all plaintiff is relying upon the
disputed Invoice No.39 at Exhibit-37, if said bill perused is dated
23.03.2015. If it is assumed that the said transaction is the ‘last
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transaction’, according to the stand of plaintiff, as per the terms and
condition of the invoice if the payment is not made within Seven days,
it would carry interest.
112) Further, if the law of limitation is taken into account for filing
a claim for recovery of money, on the basis of invoice, the date of last
invoice is the crucial date for counting period of limitation of Three
years for filing the suit. If last invoice date taken into account, the
relevant for last date limitation would be 22.03.2018. The suit is filed
admittedly on 07.08.2019. The demand notice sent through advocate
latter dated 07.07.2017 at Exhibit-36 appears to be, though not
mandatory, issued for recovery of the outstanding dues. Said notice is
duly replied promptly on 02.08.2017 by defendant. However, for the
best reasons, Suit with ought to have been filed on or before the last
day of the limitation from the last invoice dated 23.03.2015 on or
before 22.03.2018. However, Suit has been admittedly filed not within
3 years for the best reason known to the plaintiff.
113) The plea of limitation is set by the defendant in his pleading
by stating that the suit is ‘hopelessly time barred’. I found force in said
objection.
114) Plaintiff PW-1 after discharging initial burden pertains to the
issue No.1, onus shifted on defendant failed to discharge said onus, of
the other issues Nos. 2,3,5,6,7 and additional issue No.9. However,
defendant established that Suit is barred by limitation as not filed on or
before 22.03.2018. On the other hand Suit is instituted on 07.08.2019
which is beyond period of limitation.
115) Hence, I noted my negative finding to the issue No.1 to 3 and
5 to 7 and 9 and I noted my affirmative finding to the issue No.4.
116) Thus, proceed to pass following order_____
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ORDER
1. The Commercial Suit No. 131 of 2019 is dismissed with costs.
2. The amount of Rs.5,55,270/- deposited in Court by the defendant as
per order of Hon’ble High Court. On 26.08.2024, be refunded to
defendant with accrued interest, if any, after period of one year period
is over.
(Dictated, delivered and pronounced in open Court)
(SANJIV PRABHAKAR PINGLE )
JUDGE, CR NO.32,
Date : 20.09.2025 CITY CIVIL COURT, AT MAZGAON,
MUMBAI.
Dictated on :20.09.2025
Typed on :24.09.2025
Signed on :08.10.2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE:08.10.2025 NAME OF STENOGRAPHER
TIME: 05.50 p.m. Mr.Mahesh S. Lugade
Name of the Judge (With Court
room no.)
HHJ Shri. S. P. Pingle
(Court Room No.32)
Date of Pronouncement of
JUDGEMENT/ORDER
20.09.2025
JUDGMENT/ORDER signed by P. O.
on
08.10.2025
JUDGEMENT/ORDER uploaded on 08.10.2025
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