Interim Order 1

Order Details: Other
Pdf Text: .. 1..
IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
SUMMARY JUDGMENT NO.6 OF 2021
IN
COMMERCIAL SUIT NO.131 OF 2019
Sukanraj Kasturchandji Jain ]
Age: 61 yrs, 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,Mumbai400 002 ]...Plaintiff
V/s
Shivaji Kishan Jadhav, ]
Carrying on proprietary business in the firm name ]
and style of M/s.Shri Laxmi Ganesh Jewellers, having ]
address at Market Road, Bantwal D.K., ]
Karnataka574211 ]...Defendant
Appearances:
Ld. Adv. Yashpal Jain for the plaintiff.
Ld.Adv. M.d. Mali for the defendant.
CORAM : HIS HONOUR ADHOCADDL.SESSIONS
JUDGE SHRI. RAJESH A. SASNE
(C.R.No.32)
DATED : 29th September, 2021
ORDER
This application for summary judgment is taken out by the
plaintiff under Order XIII (A) of the Code of Civil Procedure,1908
requesting to pass judgment on the plaintiff's case, directing the
defendant to pay the sum of Rs.17,08,096/ alongwith interest at the
rate of 12% p.a. from the date of filing of suit till realisation.
In brief, the facts giving rise to filing of this summary judgment are
as under:
-- 1 of 7 --
.. 2.. Ord.in SJ No.0621
2. The plaintiff is carrying business of gold jewellery/ornaments,
as a sole proprietor of M/s. Hreenkashree. The defendant is also carrying
business of gold ornaments in the name and style of M/s Shri Laxmi Ganesh
Jewellers. Pursuant to the order placed by the defendant from time to time,
the plaintiff has sold, supplied and delivered gold jewellery/ornaments vide
various invoices to the defendant. The defendant has agreed to pay the
price of goods within seven days from the date of invoices, failing which he
was agreed to pay the interest at the rate of 18% p.a. The defendant has
received goods and invoices without any complaint or protest of any nature.
Initially to gain trust and confidence, the defendant has made part payment
but thereafter, inspite of repeated demands, he failed and neglected to
make the payment of balance amount.
3. The plaintiff has issued notice dated 07.07.2017 and called
upon the defendant to make the payment of Rs.11,30,539/ plus accrued
interest thereon. The notice is received by the defendant but the defendant
has failed and neglected to pay the said amount. The defendant has made
part payment of Rs.10,000/. By Advocate's notice reply dated 02.08.2017,
the defendant denied his liability. The plaintiff is entitled to recover the
amount of Rs.17,08,096/ from the defendant comprising of Rs.11,10,539/
being the principal outstanding amount and Rs.5,97,557/ being the
interest at the rate of 12% p.a. from the date of invoices till the date of
filing of suit. The defendant has no defence of whatsoever in this suit and
therefore, the plaintiff has prayed for summary judgment.
4. The defendant has filed reply at Exh.09, resisted this
application for summary judgment. It is the contention of the defendant
that the facts stated in the plaint are false, frivolous and without any
substances. The suit is not maintainable. It is not filed as a summary suit
but filed as the commercial suit, and therefore the summons for judgment is
not maintainable. The present application for summary judgment is not
-- 2 of 7 --
.. 3.. Ord.in SJ No.0621
filed as per Order XIIIA of the Code of Civil procedure. The plaintiff has not
disclosed materials and documents which are required under the law. The
defendant has already filed written statement and has disclosed the
material fact. Issues are required to be framed. The plaintiff has not come
with clean hands and has suppressed the material facts. The defendant is a
proprietor of M/s Sri Laxmi Ganesh Jewellers and the plaintiff has filed suit
against proprietor of M/s. Laxmi Ganesh Jewellers. Therefore, the suit is not
maintainable. There is misjoinder of the party. The suit is barred by
limitation. The plaintiff alleged that he had sold the gold ornaments under
invoice No.39 dated 23.03.2015 for Rs.11,60,884, but how the plaintiff has
mentioned in para No.5 of the plaint that as on 01.04.2015, the sum of
Rs.12,10,539/ was outstanding against the defendant, when the plaintiff
himself submit the invoice dated 23.03.2015 for Rs.11,60,884/. Therefore,
the plaintiff himself is not sure that how sum of Rs.12,10,539/ was
outstanding. The defendant is not liable and bound to pay any payment to
the plaintiff and has not received any gold ornaments under the disputed
invoice No.39 dated 23.03.2015. The said invoice is forged and fabricated.
The signature below the invoice is not of the defendant.
5. Though, the plaintiff has claimed the interest but no such term
as to interest is mentioned in the invoice. There is no contract or purchase
order signed by the defendant to purchase the gold ornaments. There is no
agreed contractual interest. The defendant has never signed any journal
voucher in respect of interest admitting the liability. The ledger account
annexed with the plaint is false and fabricated. The opening balance as on
01.04.2015 shown as Rs.12,10,539/, but alleged ornaments were sold on
23.03.2015.
6. After receipt of demand notice dated 07.07.2017, the
defendant had send reply dated 02.08.2017, wherein it was clearly stated
that no such ornaments were received by the defendant and no such
-- 3 of 7 --
.. 4.. Ord.in SJ No.0621
transaction was taken place. The plaintiff has failed and neglected to give
suitable rejoinder and reply. Except the present disputed transaction there
was earlier transaction with the plaintiff and for the said earlier transaction,
the defendant from time to time has made payment and nothing was due
against the same. Due to some dispute regarding purity of jewellery, the
defendant has stopped to purchase the jewellery from the plaintiff. Due to
non business with the plaintiff, the plaintiff got annoyed and to teach a
lesson to the defendant and for extorting the money, the plaintiff has filed
this false suit. The defendant has not made any payment against the
disputed invoice. The entry shown in the alleged ledger account is false and
fabricated. The defendant never agreed to pay at Mumbai therefore, this
Court is not having jurisdiction to entertain the present suit.
7. The plaintiff mainly relied on ledger account which was never
received by the defendant. Hence, the plaintiff cannot file the suit for
alleged recovery amount in Mumbai. The plaintiff is not entitled to get
decree against the defendant. With these contentions, the defendant has
prayed to dismiss the application for summary judgment. It is his further
contention that there are various triable issues and therefore, unconditional
leave to defend shall be granted. It is also prayed that matter be proceeded
for framing of issues.
8. The plaintiff has filed rejoinder to reply. He denied the
contentions raised in the reply and prayed that application for summary
judgment be made absolute.
9. Heard the learned Advocates for the plaintiff and for the
defendant. Points for determination along with my findings thereon with
reasons are as follows:
-- 4 of 7 --
.. 5.. Ord.in SJ No.0621
POINTS FINDINGS
1. Whether the application for summary
judgment filed under Order XIIIA is
maintainable in view of provisions of Order
XIIIA, Rule1(3) of the Code of Civil
Procedure?
No
2. If yes, whether the plaintiff is entitled for
the judgment on the claim? Does not survive
3. What order? Application for
Summary judgment
is dismissed.
REASONS
AS TO POINT NO.1 :
10. This suit is initially filed under Order XXXVII of the Code of
Civil Procedure. Hence, it is originally instituted as summary suit. The
provisions of Order XIIIA, Rule1, Subrule(3) of the Code of Civil
Procedure reads as follows:
“(3) Notwithstanding anything to the contrary, an application for
summary judgment under this Order shall not be made in a suit in respect
of any Commercial Dispute that is originally filed as a summary suit under
Order XXXVII.”
11. In view of aforesaid provisions an application for summary
judgment under Order XIIIA shall not be made in a suit which is originally
filed as summary suit under Order XXXVII of the CPC. The present suit is
originally filed as summary suit under Order XXXVII of the CPC. Hence, the
provisions of Order XIIIA of the CPC are not applicable to this suit.
Therefore, the application for summary judgment cannot be filed in the suit.
Hence, the present application for summary judgment is not maintainable.
In the result, I answer Point No.1 in the negative.
AS TO POINT NO.2 :
12. As the application for summary judgment is not maintainable
in the present summary suit, it restrict me to comment upon the merits of
the suit for entitlement of the plaintiff for judgment on the claim. Hence, I
-- 5 of 7 --
.. 6.. Ord.in SJ No.0621
restrict my further observation with regard to the merit of the plaintiff's
claim. In the result, I answer point No.2 as does not survive.
AS TO POINT NO.3:
13. In view of my findings against point Nos.1 and 2, the
application for summary judgment is required to be dismissed. Hence, in
answer to point No.3, I pass the following order.
ORDER
1. Application for summary judgment No.06/2021 is dismissed.
2. The plaintiff shall bear the costs of this application.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date : 29.09.2021 Mumbai.
Dictated on :29.09.2021
Transcribed on :01.10.2021
Signed by HHJ on :04.10.2021
-- 6 of 7 --
.. 7.. Ord.in SJ No.0621
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
06.10.2021 at10.58 a.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI R.A.Sasne
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
29.09.2021
Judgment/order signed by P.O. on 04.10.2021
Judgment/order uploaded on 06.10.2021
-- 7 of 7 --