Final Order 1

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MHCC010085242019 Presented on : 19-08-2019
Registered on : 19-08-2019
Decided on : 29-10-2021
Duration : Y M D
02 02 10
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
SUMMONS FOR JUDGMENT NO.218 OF 2019
IN
COMMERCIAL SUIT NO.665 OF 2021
(SUMMARY SUIT NO.63 OF 2019)
Mrugesh Shah
An Adult Indian Inhabitant of Mumbai
Aged 36 Year, Proprietor of Perfect Steel
Having Office situated at 220, 2nd Floor,
Virchand Umersey Building, 1321,
3rd Panjrapole Lane, C. P. Tank Road,
Mumbai 400004.
AND
Branch Offices situated at
741, Kundewalan, Ajmeri Gate,
Delhi 110006
KC Badkhal Road SGM Nagar
Faridabad Haryana 121001
Killa No.15/19/3/2:20/2/2:20.1
Balalgarh Road Jaat Joshi
Sonepat Haryana
Through its Constituted Attorney
Shri Suyash Sunil Shah
EmailId:Suyashshah97@gmail.com
Mobile No: 7096992370 ..Plaintiff
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Versus
1. M/s. Aura Incorporated
A Partnership Firm
Having its office situated at
12/1, Kamal V Complex, Sector 37
Sher Shah Suri Marg
Faridabad Haryana 121003
2. Mr.Neeraj Sharan
An adult Indian Inhabitant,
Age not known
3. Mrs.Sumita Sharan
An adult Indian Inhabitant,
Age not known
Both partners of Defendant No.1
Having other Addresses
S/241 Greater Kailash Part 2
New Delhi 110048
AND
W/94, Greater Kailash Part 2
New Delhi 110048 ..Defendants
______________________________________________________
Ld. Advocate Vijay Yadav h/f Adv. Rajender Singh for plaintiff
Ld. Advocate Rahul Theckedath for defendants
______________________________________________________
ORAL ORDER
(Dated this 29th day of October, 2021)
1. Summons for Judgment is taken out by plaintiff
praying for the decree of an amount of Rs.78,62,070/ alongwith
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interest on principal amount of Rs.51,31,334/.
2. Briefly stated, plaintiff's case, is as under:
Plaintiff is the proprietor of Perfect Steel. Plaintiff
does the business of sale and supply of stainless steel coils, plates,
strips and other related products. Defendant Nos. 2 & 3 are
partners of defendant No.1partnership firm. In pursuance to the
orders placed by defendant no.1, plaintiff sold and supplied goods
to the defendants. Plaintiff has set out details of the invoices
raised by him after supply of goods. Goods were sold to
defendants on the credit period of 30 days and in default of
payment within 30 days, defendants were liable to pay interest at
the rate of 24% p.a. from the due date of invoices. Goods were
supplied to defendants through local transportation. Authorized
representative of defendants duly acknowledged receipt of goods.
Defendants received the goods without raising any dispute
regarding quality, quantity, rates and terms of the invoices.
Plaintiff maintained the ledger account. Plaintiff has shown the
amount paid by defendants in the ledger account. An amount of
Rs.51,31,334/ is due against defendants. Plaintiff made demand
of outstanding amount. Defendants issued a blank cheque as a
security towards payment. Plaintiff by sending notice through
advocate on 10/07/2018, made demand of money and by
intimating defendants, presented the cheque given by defendants
for encashment. However, the said cheque was dishonoured for
the reason of 'insufficient funds'. Plaintiff issued notice dated
21/08/2018 asking defendants to make the payment of
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outstanding amount. But, defendants failed to make the payment.
Defendants do not have valid defence to the plaintiff's claim and
the appearance has been caused by defendants for the purpose of
delaying the passing of the decree. By making these submissions,
plaintiff prayed to make the Summons for Judgment absolute.
3. Defendants by filing their reply affidavit sought leave
to defend the suit. Defendants submit that plaintiff has no cause
of action to file the suit. The suit is filed by suppressing material
facts. Defendants made part payment from time to time.
Defendants also assigned policy of Rs.25 lacs to plaintiff. Suit is
based upon invoices which are time barred. Certain goods were
returned to the plaintiff as the goods were defective. Defendants
made part payment of Rs.54 lacs. Defendants issued blank
cheque in the year 2013 as a security. But, said cheque was
deposited in the year 2018. Plaintiff's claim is time barred.
Defendants paid 20% of the claim amount i.e. Rs.10 lacs in the
criminal complaint filed by plaintiff. Particulars of claim filed
alongwith plaint are false. Summary Suit filed under order
XXXVII Rule 2 is not tenable. By making these submissions,
defendants prayed to dismiss the suit.
4. Heard both the sides.
5. Ld. Counsel for plaintiff made following
submissions:
(a) Plaintiff has set out in detail as to how the
amount mentioned in the particulars of
claim is due against defendants. Plaintiff has
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given details of the invoices which are duly
acknowledged by defendants.
(b) Defendants are not disputing the transaction.
They are not denying the receipt of goods.
Defendants claimed that they have made part
payment of the goods, but, they have not given
particulars of the part payment.
(c) Prior to the presentation of cheque, plaintiff
issued notice to the defendants. Cheque
was deposited after giving intimation to the
defendants. Presumption u/s.118 of The
Negotiable Instruments Act is available with
the plaintiff.
(d) Defendants have not disputed the transaction.
They have not denied receipt of goods as per
the invoices mentioned in the plaint.
Therefore, burden would be upon defendants
to show that they have made payment of
invoices. But, defendants have taken vague
plea of payment. From the reply affidavit,
it is clear that defendants do not have any
defence. They have not raised any triable
issue.
5. Ld. Counsel for plaintiff relied upon following
judicial pronouncements:
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(i) P.Mohan V/s Basavaraju AIR 2003 Kant 213.
(ii) Ajanta Raj Proteins Pvt Ltd & Anr V/s Himanshu
Pvt.Ltd. RFA 2/2016, Date of Decision 31/01/2018.
(iii) Suresh Chandra Goyal V/s Amit Singhal CRL.L.P.
706/2014 dated 14/05/2015.
(iv) Dinesh B.Chokshi V/s Mr.Sandeep Raghavji Gala,
Cr.Appln. No.2933 to 2936 of 2007 and
779/2008,1499/2008 & 2391/2010 dated 19/10/2012.
6. By making all the above submissions, Ld. advocate
for plaintiff prayed to make the Summons for Judgment absolute.
7. Ld. Counsel for defendants contravened above
submissions of plaintiff with following arguments:
(a) This Court has no territorial jurisdiction to try
and entertain the present suit.
(b) Goods were not supplied by plaintiff from
Mumbai. Defendants did not reside within
the jurisdiction of this Court. Cause of action
did not arise within the jurisdiction of this
Court. Therefore, this Court did not have
jurisdiction to try and entertain the suit.
(c) Plaintiff in paragraph No.3 of the plaint
contends that he supplied goods to defendants
since the year 2015. Plaintiff did not receive the
payments of the goods supplied to defendants from
the year 2015. It is not believable that plaintiff
continued to supply goods to defendants although he
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did not receive the payment since the year 2015.
(d) The dispute arose between the parties regarding
quality of the goods and therefore plaintiff is not
entitled to claim the amounts mentioned in the
invoices.
(e) Cheque mentioned in the plaint was issued by
defendants in the year 2013 as a security. While
taking cheque, plaintiff agreed that the said cheque
will not be misused. Plaintiff has taken cheque
on 19/02/2013 and said cheque was misused in the
year 2018.
(f) Defendants have made substantial payments
and therefore they are entitled for leave to defend
the suit.
8. By making these submissions, defendants prayed to
dismiss the Summons for Judgment.
9. Considered the submissions advanced on behalf of
both the sides. Suit is based upon invoices. In paragraph No.13
of the plaint, plaintiff has specifically pleaded that defendants
purchased the goods under invoices and acknowledged the
receipt. This constitutes valid written contract. Thus, plaintiff's
claim is based upon invoices. It is not in dispute that defendants
handed over cheque bearing No.181392 to plaintiff in the year
2013. Said cheque was handed over as a security towards supply
of goods. Plaintiff claims that he has issued notice dated
10/07/2018 to defendants before presentation of the cheque.
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10. Plaintiff is claiming the amount of invoices raised
during the period from 22/12/2015 to 07/02/2018. Suit is filed
on 19/12/2018. Thus, suit is filed well within limitation for all
the invoices mentioned in the plaint. As stated above, suit is based
upon invoices and it is not solely based upon dishonour of
cheque. The case of P.Mohan(cited supra)deals with Section 80 of
The Negotiable Instruments Act, therefore, would not be relevant
for deciding present application. In case of Suresh Chandra
Goyal(Cited supra), Hon'ble Delhi High Court dealt with cheque
issued towards security. However, facts of the cited case are
different from case in hand. Considering the scope of present
application, this case law is also not useful for deciding present
application.
11. Plaintiff further placed reliance upon the case of
Dinesh B.Chokshi(Cited supra). In this case, the issue before
Hon'ble Bombay High Court was 'Whether issuance of cheque in
repayment of a time barred debt amounts to a written promise to
pay the said debt within the meaning of Section 25(3) of the
Indian Contract Act, 1872? 'and' if it amounts to such a promise,
does such a promise, by itself, create any legally enforceable debt
or other liability?' However, facts of the present case are different
from the cited case. In the present case, cheque is given well
within limitation and it was not given towards time barred debt.
12. Plaintiff placed reliance upon the case of Ajanta Raj
Proteins(Cited supra). In this case, Hon'ble Delhi High Court
pleased to discuss in detail the scope of Order XXXVII Rule 3 of
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C.P.C. Hon'ble Delhi High Court relied upon the decision of
Hon'ble Supreme Court in the case of IDBI Trusteeship Services Ltd
V/s Hubtown Ltd, AIR 2016 SC 5321, wherein Hon'ble Supreme
Court pleased to dealt with Order XXXVII Rule 3 of C.P.C. I have
gone through the principles laid down by the Hon'ble Supreme
Court in the cited case.
13. Defendants submit that some of the invoices
mentioned in the plaint are barred by period of limitation. As
discussed above, plaintiff is claiming amounts towards the
invoices during the period from 22/12/2015 to 07/02/2018 and
suit is filed on 19/12/2018, therefore I do not find any substance
in the submission of the defendants that plaintiff's claim, for some
invoices is barred by Limitation Act.
14. Defendants further submit that this Court has no
territorial jurisdiction to try and entertain the suit. But,
defendants have not taken such specific plea in their reply
affidavit. Plaintiff in paragraph No.15 of the plaint, stated as to
how part of the cause of action took place within the jurisdiction
of Mumbai Court.
15. During the course of arguments, Ld. counsel for
plaintiff submitted that plaintiff received an amount of Rs.21 lacs
after filing of the suit. Therefore, plaintiff was directed to file
details of the payment received by him. On 26/10/2021, plaintiff
filed pursis mentioning therein that he has received an amount of
Rs.29,04,800/ after filing of the suit. When this pursis came on
record, Court directed defendants to verify the contents in the
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pursis filed by plaintiff. On 28/10/2021, defendants filed reply to
pursis and submitted that they have made payment of
Rs.36,12,540/ after filing of the suit. It is further submitted that
they have paid an amount of Rs.5 lacs with respect to the
complaint filed under The Negotiable Instruments Act. Thus, as
per pursis submitted by defendants, they have made payment of
Rs.36,12,540/ plus Rs.5 lacs which comes to Rs.41,12,540/ after
filing of the suit.
16. Plaintiff has taken out this Summons for Judgment
on 02/08/2019. Defendants filed reply to Summons for
Judgment on 20/09/2019. In paragraph no.6 of the reply,
defendants specifically contended that they have assigned Max
Life Insurance Policy worth Rs.25 lacs to plaintiff. Plaintiff filed
rejoinder to the affidavit on 25/02/2021.
17. In the rejoinder, plaintiff specifically denies receipt of
policy assigned by defendants. However, in the pursis dated
26/10/2021, plaintiff accepted receipt of Rs.13,79,009/ and
Rs.7,63,251/ by way of insurance policy. Plaintiff claims that he
has received an amount of Rs.29,04,800/, whereas defendants
are claiming that they have paid an amount of Rs.41,12,540/
after filing of the suit. Thus, there is a dispute between parties
regarding payment made by defendants.
18. In case of Ajanta Raj Proteins(Cited supra), Hon'ble
Delhi High Court pleased to held that as per proviso to Order
XXXVII Rule 3, defendant has to show substantial defence which
is not frivolous or vexatious. Defendants make the statement that
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they have made substantial payments towards the goods supplied
by plaintiff. The principal amount claimed by plaintiff is
Rs.51,31,334/. As per statement made by plaintiff, he has
received Rs.29,04,800/ which would be substantial amount
towards principal amount claimed by plaintiff. Defendants
submit that they have made payment of Rs.41,12,540/ towards
the goods supplied by plaintiff. In view of specific plea taken by
defendants regarding payment of money made to the plaintiff, an
opportunity is required to be given to the defendants to prove
their contention regarding payment made by them and this can be
done only when Court grants them leave to defend the suit.
19. Defendants have not admitted any outstanding
amount. It is pertinent to note that plaintiff is claiming decree for
an amount of Rs.78,62,070/. He has received substantial amount
after filing of the suit. Plaintiff has not amended his claim in
Summons for Judgment after receipt of payment made by
defendants. As held by Hon'ble Supreme Court in the case of IDBI
Trusteeship Services Ltd. V/s Hubtown Ltd,' if the defendant raises
triable issues indicating that he has a fair or reasonable defence,
although not a positively good defence, the plaintiff is not entitled
to sign judgment, and the defendant is ordinarily entitled to
unconditional leave to defend.' Defendants have taken out plea
that they have made payment of goods. Material on record shows
that plaintiff received substantial amount. While deciding present
application, Court has to see that defendants do not unnecessarily
prolong the litigation and prevent the plaintiff from obtaining an
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early decree by raising frivolous defence. Defendants raised plea
of making payment of goods. Rival contentions regarding
outstanding amount can only be decided after giving opportunity
of adducing evidence to parties. Conspectus of above all
discussion is that defendants are entitled to unconditional leave to
defend the suit. In the result, following order:
ORDER
1. Unconditional leave to defend the suit is granted to defendants.
2. Defendants shall file Written Statement within 30 days from
today.
3. No order as to costs.
4. Summons for Judgment No.218 of 2019 is disposed of
accordingly.
29/10/2021 S.U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 29/10/2021
Transcribed on : 30/10/2021
Signed on : 30/10/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
30/10/21 at 05.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
30/10/21
Judgment and order signed by P.O. 30/10/21
Judgment/order uploaded on 30/10/21
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