Order 2

Order Details: Copy of Judgment
Pdf Text: 1 Summary Judgment 62021 in Comm. SU 13119
Presented on : 04/08/2021
Registered on : 04/08/2021
Decided on : 03/05/2024
Duration : 02Y/08M/29D
Exh.24.
IN THE CITY CIVIL COURT AT MAZGAON MUMBAI.
(COURT ROOM No.32)
SUMMARY JUDGMENT NO. 6 OF 2021
IN
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 Road, Mumbai400
002.
…PLAINTIFF
VERSUS
Shivaji Kishan Jadhav aged not known.
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. Karnataka
574 211.
…DEFENDANT
Shri. Yashpal Jain, learned advocate for plaintiff.
Shri . M.D. Mali, learned advocate for defendants.
CORAM : H. H. JUDGE SHRI VISHAL SADASHIVRAO GAIKE,
COURT ROOM NO.32
J U D G M E N T
(Delivered on 03.05.2024)
1. This application for Summary Judgment is taken out by the
plaintiff under Order XIII (A) of the Code of Civil Procedure,1908 (CPC),
requesting to pass judgment on the plaintiff's case, directing the defendant to
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pay the sum of Rs.17,08,096/ alongwith interest @ of 12% p.a. from the date
of filing of suit till realisation.
2. That, before proceeding further it is necessary to mention here
that the present application for Summary Judgment is being decided afresh as
per the directions of Hon’ble Bombay High Court passed in Writ Petition
No.7068 of 2023 on 06.09.2023 thereby quashing and setting aside earlier
order dated 29.09.2021 deciding the present Summary Judgment.
3. The plaintiff’s case, in brief, is that, the plaintiff is carrying
business of gold jewellery/ornaments and is the 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
orders 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 had 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.
4. 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.
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The defendant has no defence of whatsoever in this suit and therefore, the
application for Summary Judgment be made absolute.
5. The defendant has filed reply at Exh.09, resisted this application
for summary judgment and prayed for unconditional leave to defend. The
contention of the defendant, in brief, is that, the present application for
Summary Judgment is not filed as per Order XIIIA of the Code of Civil
Procedure. The plaintiff has not disclosed materials and documents 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 facts. 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.
6. Though, the plaintiff has claimed the interest but no such term
as to interest is mentioned in the alleged 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
general voucher in respect of interest admitting the liability. The ledger
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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.
7. 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 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 stoppage of 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 part 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.
8. 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. That, there are various triable issues and
therefore, unconditional leave to defend shall be granted. The plaintiff is not
entitled to get decree against the defendant. Lastly, the defendant has prayed
to dismiss the application for summary judgment. It is also prayed that matter
may be posted for framing of issues.
9. The plaintiff has filed rejoinder to the reply affidavit of the
defendant. He has denied the contentions raised in the reply and prayed that
application for summary judgment be made absolute.
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10. Heard the learned Advocates for the plaintiff and for the
defendant. The learned advocate of plaintiff relied on the Judgment of
Hon’ble Delhi High Court in the matter of,
i) SuKam Power Systems Ltd. Vs. Kunwer Sachdev & Another
2019 SCC Online Del 10764;
ii) All India Reporter Ltd. Vs. Ramchandra Dhondo Datar 1959 SCC
Online Bom 152;
iii) Naba Kumar Doley Vs. Bharat Chandra Narah (2012 6 Gauhati
Reporters 242).
11. In the matter of SuKam Power (Supra), the Hon'ble Delhi
High Court had held that, “Rule 3 of Order XIIIA of the CPC as applicable to
the commercial disputes, empowers the court to grant a Summary Judgment
against the defendant where the court considers that the defendant has not
real prospects of successfully defending the claim and there is no other
compelling reason why the claim should not be disposed off before recording
of oral evidence.....”. In the said matter, the Hon'ble Delhi High Court had
concluded that the contentions and submissions of defendant No.1 with
regard to earlier adoption or licensing by way of TMLA dated 07.07.1995 or
BT Agreement dated 16.09.1999 and/or subsequent transfer by way of Deed
of Assignment dated 16.03.2006 are baseless and inconsequential. Further the
Deed of Assignment is void for breach of fiduciary duty. That, from the
pleadings and the material on record, it is apparent that the defendants have
no real prospect of defending the allegations made by the plaintiff and there
is no compelling reason for trial. With the above said observations, the
Hon'ble Delhi High Court decreed the suit in accordance with the prayers (a)
to (f) of the amended prayer clause and disposed off the matter.
12. In the matter of All India Reporter Ltd (Supra), the question
was whether the provisions contained in Order VI relating to signing,
verification and presentation of the plaint merely relate to procedure or
whether a plaint which does not strictly comply with the requirements of
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Order VI would cease to be a valid plaint and would be a nullity because of
such defects or irregularity. In my humble opinion, the said Judgment is not
relevant in deciding the present Summary Judgment Application, as the
separate application Exh.22 filed on behalf of the plaintiff for filing on record
the statement of truth, is already allowed.
13. In the matter of Naba Kumar Doley (Supra), the question
before Hon'ble Gauhati High Court was that, whether the election petition
should be rejected for want of cause of action, for not disclosing the material
facts, lack of proper verification as required under Order VI, Rule 15 of the
Code of Civil Procedure, non furnishing of documents, etc. In my humble
opinion, the said Judgment of Hon'ble Gauhati High Court is not necessary to
be considered in this application because, as said above, the application
Exh.22 filed on behalf of the plaintiff is already allowed.
14. In the present matter, the plaintiff is relying upon invoice copy
dated 23.03.2015, original statement of accounts for the year 20152016, etc.,
plaintiff's notice dated 07.07.2017 and the alleged reply dated 02.08.2017
given by the defendant's advocate. The defendant has already filed his Written
Statement and has categorically denied that he is the proprietor of M/s. Laxmi
Ganesh Jewellers and has stated that he is proprietor of M/s. Shri Laxmi
Ganesh Jewellers. He has denied the allegations of plaintiff that he had sold
and delivered gold ornaments to him under invoice No.39 dated 23.03.2015
for Rs.11,60,884/. It is his contention that the said invoice is fabricated and it
was never received by him. The signature appearing on the said invoice does
not belong to him. He has further contended that no purchase order for the
said gold ornaments under the said invoice was ever placed by him and the
plaintiff has made false entries into his books of accounts. He has alleged that
the ledger account statement is fabricated.
15. That, in view of the denial of the defendant of placing any
purchase orders for the gold ornaments for which the alleged invoice No.39 is
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raised by the plaintiff and in view of the denial of his signature and stamp of
his firm on the said invoice, it is necessary for the plaintiff to prove during the
trial the fact of receiving purchase order from the defendant for the gold
ornaments allegedly sold and delivered to him under the said invoice No.39.
Though, the plaintiff has relied upon the notice dated 07.07.2017 allegedly
sent to the defendant through registered post acknowledgment due but, the
copies of the postal receipt has not been filed on record by the plaintiff.
Therefore, the plaintiff has to discharge its burden of proving its claim during
the trial and oral and documentary evidence is necessary to be recorded on
the triable issues raised by the defendant. Hence, in my humble opinion the
ratio of the Judgment of SuKam Power (Supra), is not applicable in the facts
of the present case. Consequently, I am constrained to pass the following
order.
ORDER
1. The Summary Judgment No.6 of 2021 is hereby
dismissed.
2. Put up the matter for Case Management Hearing on
the next date.
3. No order as to costs.
Date :03/05/2024.
( VISHAL SADASHIVRAO GAIKE )
JUDGE, CR NO.32,
CITY CIVIL COURT, MAZGAON
Directly typed on Computer on : 03/05/2024 GR. MUMBAI.
Printed on : 24/05/2024
Signed on : 24/05/2024
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
24/05/2024 at 12.45 p.m. Mrs.Rupali S. Bhor
Name of the Judge(with CR
No.)
HHJ SHRI. VISHAL
SADASHIVRAO GAIKE(C.R.No.32)
Date of pronouncement of Order 03/05/2024
Order signed by P.O. on 24/05/2024
Order uploaded on 24/05/2024
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