Final Order 1

Order Details: Copy of Judgment
Pdf Text: SJ 223/19 IN SUM.SUIT 312/2016 1
MHCC010086572019
IN THE CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT NO.223 OF 2019
SUMMARY SUIT NO. 312 OF 2016
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
( CNR NO.: MHCC01-008657-2019)
M/s. Arihant Paints
having address ast: Shop No.1, Chakkiwala
Chawl, Kherwadi Road, Near Hotel Triveni,
Bandra(East), Mumbai-400051, Maharashtra,
Through its Constituted Attorney
Mr.Dharmendra Kumar Gendalal Sharma
Age 40 years.
And having Registered Address at:
003, Shree Ganesh Krupa CHS, Maratha
Colony, Baghve Road, Dahisar(East),
Mumbai-400068. ....Plaintiff
Versus
1.A.A.Nayak Constructions Pvt.Ltd.
Through Mr.Sunil Nayak Director,
Having Registered Address at: 25,
Municipal Building, 3rd floor, Jobanputra
Compound, Nana Chowk, Grant Road,
Mumbai-400007.
And having Corporate Office at:
314/315. Kaliandas Udyog Bhavan Premises
CHS Ltd. 3rd floor, Near Century Bazar,
Prabhadevi, Mumbai-400025.
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2. Mr. Sunil Nayak,
Age: Adult,
Director of A.A.Nayak Constructions Pvt.Ltd.
Having Registered Address at : 25, Municipal
Building 3rd floor, Jobanputra Compound
Nana Chowk, Grant Road, Mumbai-400007.
And having Corporation office at:
314/315, Kaliandas Udyog Bhavan Premises
CHS Ltd., 3rd floor, Near Century Bazar,
Prabhadevi, Mumbai-400025.
3. Mrs. Shilpa,
Age: Adult,
CEO of A.A. Nayak Constructions
Pvt.Ltd., Having Registered Address
at: 25, Municipal Building, 3rd floor,
Jobanputra Compound, Nana Chowk,
Grant Road, Mumbai-400007.
And having Corporate Office at:
314/315. Kaliandas Udyog Bhavan Premises
CHS Ltd. 3rd floor, Near Century Bazar,
Prabhadevi, Mumbai-400025. ...Defendants
Appearances:-
Advocate Bilal Chougule for the Plaintiff.
Advocate Hasan Khan for the Defendants.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 11th March, 2020
J U D G M E N T
1. This is Summons for judgment for recovery of amount of
Rs.2,50,195/- (Rupees Two Lakhs Fifty Thousand One Hundred and
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Ninety Five Only) with interest at the rate of 24% p.a..
2. According to the plaintiff, he is in the business of sales and supply
of paints and paints accessories. Defendant No.1 is a registered
company, defendant No.2 is director whereas defendant No.3 is CEO of
defendant No.1. The defendants are the regular customers of the
plaintiff since 2014 and there were various sale transactions between
the parties. The defendants on 30.06.2014 had placed order for supply
of various paints. The order was placed at the plaintiff's office at
Bandra. The plaintiff delivered the said material to the defendants.
However, the defendants neglected to clear the payment of
Rs.2,31,663/-, though they received the material. Vide legal notice
dtd.25.08.2015 the plaintiff called upon the defendant to pay the due
amount. However, the defendant on 01.09.2015 falsely replied the
notice. At the institution of the suit, the amount due and payable by the
defendants was Rs.2,50,195/-. Therefore, the plaintiff claimed decree
for recovery of said amount with the interest.
3. The defendants filed reply to the Summons for Judgment.
According to the defendants, though the suit has been filed on
08.12.2015, the summons for judgment is taken out on 07.09.2018,
therefore, under the Bombay City Civil Court Rules the summons for
judgment has to be rejected. The plaintiff was informed well in time
that the material supplied was defective and there was colour shade
difference which was realized by the defendant after its application. The
plaintiff had knowledge that Berger Paint's representative Nishant
Mishra had visited the site and confirmed with the defendant's
supervisor Chetan Shelar that there was a colour shade difference and it
was necessary to change the material supplied by the plaintiffs to the
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defendants. The plaintiff was under obligation to replace the defective
material at the own cost as it was not acceptable either to the defendant
or to their client. The defendants had demanded credit note of
Rs.94,000/- and till the said issue was resolved by the plaintiff, vide
mails dtd.05.01.2015 and 02.02.2015 the plaintiff was clearly informed
that no further payments will be made by the defendants to the
plaintiff. The plaintiff had already collected amounts for the defective
material supplied to the defendants and as such the plaintiff is liable to
issue credit note to the defendants or to adjust the amount of credit
note in the future bills. There is no agreement between the parties
regarding payment of interest. Therefore, claim of the plaintiff
regarding interest is not tenable. The delayed payment charges claimed
by the plaintiff are also not part of any agreement. Therefore, same also
cannot be granted. After deducting the amount of credit note, which the
plaintiff is required to issue in favor of the defendants, only amount of
Rs.91,828/- is due and payable by the defendants. On these grounds,
the defendants requested to reject the Summons for Judgment and
grant unconditional leave to defend.
4. Considering the material on record and submissions made on
behalf of the parties points arise for determination along with my
findings thereon for the reasons recorded are as under:-
POINTS FINDINGS
1. Whether the plaintiff is entitled to
Summons for Judgment?
Negative
2. Whether the defendants are entitled to
Leave to defend?
If yes, whether conditional/
unconditional?
Conditional Leave is granted.
3. What order? As per final order
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REASONS
AS TO POINTS NO.1 to 3:-
5. The Ld advocate on behalf of the plaintiff argued that the tax
invoice alongwith the material on record prove the liability of the
defendants. The contention of the defendants regarding quality of
material is an afterthought. The defendants do not have any substantial
defence. No triable issues are raised. Therefore, he requested to allow
the summons for judgment.
6. On the other hand, the Ld advocate on behalf of the defendants
argued that the Summons for judgment has not been taken within 6
months from the date of filing of the suit. Therefore, summons for
judgment has to be rejected. The defendants had raised grievance
regarding the quality of paints immediately by sending the e-mails.
Same emails have not been denied. Even in the reply notice the
defendants had raised the grievance. Thus, quality of the paints is an
issue. The defendants have putforth substantial defence. Therefore, the
defendant's advocate requested to reject the summons for judgment and
grant unconditional leave to defend to the defendant. He relied on, 1.
State bank of Hydrabad V/s RABO Bank, Civil appeal No.8194 of 2015
decided by Hon'ble supreme court on 01.10.2015, 2. Neebha Kapoor
V/s Jayantilal, 2008(3)SCC 770.
7. I have carefully gone through the decisions in the cases as relied
on behalf of the defendants. In the case of 'State Bank of Hydrabad' as
well as 'Neebha Kapoor', the Hon'ble supreme court held that if the
defendant raises a triable issue that he has a fair or bonafide or
reasonable defence although not a positively good defence, the plaintiff
is not entitled to sign judgment and the defendant is entitled to
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unconditional leave to defend. It is further held that if the defendant
discloses such facts as may be deemed sufficient to entitle him to
defend, that is to say, although the affidavit does not positively and
immediately made it clear that he has a defence, yet shows such a stage
of facts as leads to the inference that at the trial of the action he may be
able to establish a defence to the plaintiff's claim, the plaintiff is not
entitled to judgment and the defendant is entitled to leave to defend
but in such case the court may in its discretion impose conditions as to
the time or mode of trial but not as to payment into court or furnishing
security.
8. So far as the contention regarding Rule 119 (4) of Bombay City
Civil Court is concerned, said rule states,
'When no decree applied for within six months- If the plaintiff
does not apply for a decree within Six months after the filing of the
plaint, the suit shall be set down in the daily cause board for dismissal
before the sitting judge in chambers, one week before the day fixed for
such dismissal. Upon the day fixed for such dismissal, the suit shall be
called on before the siting Judge in Chambers and shall be called on
before the sitting Judge in Chambers and shall be dismissed if the
plaintiff fails to appear, or appearing fails to satisfy the Judge that he
has sufficient cause for not having proceeded with this suit.'
9. Thus, as per said rule if the summons for judgment is not applied
within 6 months after the plaint, the suit has to be set down for
dismissal. Once the suit is set down for dismissal on the fixed date if the
plaintiff fails to appear or fails to satisfy the court that he has sufficient
cause for not having proceeded with the suit, then the suit shall be
dismissed. However, in the case in hand the suit was never set for
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dismissal. On the other hand it appears that on 02.04.2018, the
defendants filed vakalatnama which was kept for confirmation and the
matter was adjourned to 10.07.2018. On 10.07.2018, only the plaintiff
sought time for filing summons for judgment and the matter was
adjourned to 07.09.2018. On 07.09.2018 itself the plaintiff filed the
Draft Summons for judgment. Thus, within 5 months of the appearance
of the defendants, the plaintiff filed the Summons for judgment.
Considering same circumstance and that the suit was never set for
dismissal order, it is implicit that the court exercised discretion to not to
set the suit for dismissal. Further, once the summons for judgment is
filed on record when the suit is alive and the court accepted the
summons for judgment on record, now it will be improper to go back to
the stage of Rule 119 (4) of City Civil Court Rules.
10. It is not disputed that the defendants placed orders to the plaintiff
for delivery of the paint material. It it also not disputed that the plaintiff
delivered the material. The dispute raised by the defendants is that the
paint material was not as required by them particularly the shade of the
colour. In this regard, the defendants relied on correspondence between
the parties via e-mail. The copy of e-mail dtd.11.12.2014 shows that the
defendant vide same mail communicated the plaintiff that there is a
shade difference in the material supplied by the plaintiff. It also states
that, the defendants already contacted the representative of Berger
Paints. Thus, much prior to the issuance of legal notice dtd.25.08.2015
by the plaintiff, the defendants had already raised the grievance
regarding the quality/colour shade of the paint supplied to them.
Further, e-mails as produced on behalf of the defendants also show that
there has been dispute between the parties over the same issue.
Considering these circumstances the defendants have raised a triable
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issue. However, at the same time it has to be noted that the defendants
contend that, after deducting the amount of credit note which the
plaintiff is required to be issued, a sum of Rs.91,828/- is due and
payable by the defendants to the plaintiff. Thus, at least to the extent of
the said amount the liability of the defendants is not disputed. In these
circumstances, the defendants may be granted leave to defend subject
to condition of deposit of Rs.91,828/- whereas the plaintiff is not
entitled to the summons for judgment. Hence, point No.1 is answered
in the negative and point No.2 is answered as that leave to defend is
granted to the defendants subject to condition of depositing amount of
Rs.91,828/- (Nineteen Thousand Eight Hundred and Twenty Eight
Only). In answer to Point No.3 order as follows is passed:
ORDER
1. The summons for judgment 223 of 2019 is rejected.
2. Leave to defend is granted to the defendants subject to condition
of depositing amount of Rs.91,828/- (Ninety One Thousand Eight
Hundred and Twenty Eight Only).
3. The defendants shall deposit the said amount of Rs.91,828/- on
or before 20-04-2020.
4. Subject to condition of depositing the amount of Rs.91,828/-, the
defendants shall file their written statement on 20-04-2020.
5. The register shall cause conversion of the suit to appropriate
category and shall cause assignment of the same to appropriate court by
completing requisite process.
6. The summons for judgment is disposed.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date:11/03/2020 City Civil Court,Gr. Mumbai
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Dictated on : 11/03/2020
Signed on : 12/03/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
13-03-2020 adt 5.05p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 11-03-2020
Judgment/Order signed by P.O. on 12-03-2020
Judgment/Order uploaded on 13-03-2020
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