Final Order 1

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Pdf Text: 1 Order on Appln for Summary Judgment in SU130-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON APPLICATION FOR SUMMARY JUDGMENT (EXH.6)
IN
COMMERCIAL SUIT NO. 130 OF 2019
(CNR no. MHCC01-000607-2019)
Ansibai Ganeshmal Jain
Age 80 years, carrying on textile business
in the firm name and style of M/s. Matiya Synthetics,
at 13/15, Vitthal Wadi, 2nd Floor, Kalbadevi Road,
Mumbai – 400 002 as the sole proprietress thereof,
through her constituted attorney,
Anand Ganeshmal Jain
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Plaintiff
Versus
Sumit Hanuman Sharma
Age 27 years, carrying on textile business in the firm
name and style of M/s. Sumit International,
as sole proprietor thereof at 439,
Kalbadevi Road, Room No.506,
5th Floor, Hassam Premji Building, Mumbai-400002
and factory address at Building No. E, 2nd Floor,
Gala No.209/210, New Sawagat Complex,
Phase-2, Rahnal Village, Bhiwandi and
residing at Flat No.1103, 11th Floor,
Bhoomi Ratna Building, Plot No.57/58,
Sector 18, Kamothe, Navi Mumbai Pin-410206.
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Defendant
Appearances:-
Ld. Advocate Mr. Yashpal Jain for the Plaintiff.
Ld. Advocate Mr. Sandeep Batavia for the Defendant.
CORAM : HIS HONOUR JUDGE
SHRI C. V. MARATHE
(Court Room no. 4)
DATED : 25th February, 2020.
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O R A L O R D E R
1. This is an application for deciding the claim pertaining to
commercial dispute without recording oral evidence under Order XIII-A
of The Code of Civil Procedure, 1908. The prayer made in this application
is replica of the prayer clause (a) of the plaint and it reads as under :
A) For Judgment and Decree against the Defendant and in favour
of the Plaintiff for a sum of Rs.52,90,952/- (Rupees Fifty Two
Lakhs Ninety Thousand Nine Hundred and Fifty Two only) as
per the Particulars of Claim being Ex.”E” to the plaint together
with further interest at the rate of 12% per annum or at any
rate as this Hon’ble Court may deem fit and proper from the
date of filing of this suit till payment or realization thereof and
costs of the suit.
From the above prayer, it is clear that the instant application
is for whole suit claim.
2. The suit was not originally filed as summary suit under
Order XXXVII of the The Code of Civil Procedure, 1908. Summons has
been served on the defendant and, thereafter, instant application is made
by the plaintiff. The issues are not yet framed in this suit.
3. The application contains a statement that it is an application
for summary judgment. The affidavit in support of this application
discloses all material facts in line with the plaint. The plaintiff has filed
documentary evidence in support of the plaint and he has relied upon the
same documentary evidence in this application. The application states the
reason why there are no prospects of defending the claim by the
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defendant. The application also states which relief the applicant is
seeking and grounds of seeking such relief. The defendant has filed his
reply to the application after receiving copy of the application. In other
words, notice of the claim that is proposed to be decided by the Court at
the hearing of the application is given to the defendant and he has filed
reply disclosing all material facts, identifying the point of law of
limitation and reasons why the relief sought by the plaintiff should not be
granted. The defendant has not filed any documentary evidence in his
reply. None of the parties have tendered additional documentary
evidence during the hearing.
4. The dispute arises out of transaction of merchant in respect
of sale of textile/garments. Ld. Advocate for the plaintiff has taken me
through the paragraph no. 2 of the plaint wherein the details of the
outstanding invoices which are due and payable by the defendant to the
plaintiff are listed in the tabular form as under:
INVOICE
NO. DATE AMOUNT INTEREST
(upto 31.07.2019) TOTAL
11223 02.06.2017 Rs.0,21,715/- Rs.0,05,494/- Rs.0,27,209/-
11232 02.06.2017 Rs.0,40,563/- Rs.0,10,263/- Rs.0,50,826/-
11244 06.06.2017 Rs.1,77,963/- Rs.4,47,788/- Rs.6,25,751/-
11268 12.06.2017 Rs.2,53,239/- Rs.0,63,226/- Rs.3,16,465/-
11318 30.06.2017 Rs.1,23,392/- Rs.0,30,067/- Rs.1,53,459/-
11319 30.06.2017 Rs.2,35,730/- Rs.0,57,440/- Rs.2,93,170/-
11320 30.06.2017 Rs.0,87,280/- Rs.0,21,268/- Rs.1,08,548/-
11322 30.06.2017 Rs.0,16,100/- Rs.0,03,923/- Rs.0,20,023/-
11327 30.06.2017 Rs.2,83,268/- Rs.0,69,023/- Rs.3,52,291/-
11878/GS 10.11.2017 Rs.2,38,272/- Rs.0,41,257/- Rs.2,79,529/-
11879/GS 10.11.2017 Rs.2,04,911/- Rs.0,40,847/- Rs.2,45,758/-
11885/GS 10.11.2017 Rs.0,11,642/- Rs.0,02,321/- Rs.0,13,963/-
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INVOICE
NO. DATE AMOUNT INTEREST
(upto 31.07.2019) TOTAL
11907/GS 15.11.2017 Rs.0,76,109/- Rs.0,15,045/- Rs.0,91,154/-
11928/GS 20.11.2017 Rs.0,38,674/- Rs.0,07,580/- Rs.0,46,254/-
11933/GS 20.11.2017 Rs.2,40,534/- Rs.0,47,145/- Rs.2,87,679/-
11961/GS 24.11.2017 Rs.0,60,858/- Rs.0,11,848/- Rs.0,72,706/-
12002/GS 29.11.2017 Rs.0,34,852/- Rs.0,06,727/- Rs.0,41,579/-
12019/GS 04.12.2017 Rs.0,66,636/- Rs.0,12,749/- Rs.0,79,385/-
12054/GS 14.12.2017 Rs.1,21,832/- Rs.0,18,445/- Rs.1,40,277/-
12055/GS 14.12.2017 Rs.0,54,098/- Rs.0,10,171/- Rs.0,64,269/-
12158/GS 10.01.2018 Rs.3,68,952/- Rs.0,66,043/- Rs.4,34,995/-
12347/GS 30.01.2018 Rs.0,66,093/- Rs.0,11,390/- Rs.0,77,483/-
12348/GS 30.01.2018 Rs.2,00,088/- Rs.0,34,482/- Rs.2,34,570/-
12544/GS 24.02.2018 Rs.1,46,394/- Rs.0,08,076/- Rs.1,54,470/-
12545/GS 24.02.2018 Rs.1,20,464/- Rs.0,19,836/- Rs.1,40,300/-
12548/GS 24.02.2018 Rs.1,71,878/- Rs.0,28,242/- Rs.2,00,120/-
13093/GS 11.04.2018 Rs.2,63,342/- Rs.0,39,239/- Rs.3,02,581/-
13129/GS 14.04.2018 Rs.1,09,759/- Rs.0,16,245/- Rs.1,26,004/-
13141/GS 14.04.2018 Rs.2,62,411/- Rs.0,38,838/- Rs.3,01,249/-
13514/GS 04.07.2018 Rs.0,07,929/- Rs.0,00,956/- Rs.0,08,885/-
Total Rs.41,04,978/- Rs.11,85,974/- Rs.52,90,952/-
5. It is also alleged that 3 cheques no. 001687, 001688, 001692
issued by the defendant were dishonoured. Ld. Advocate for the plaintiff
has highlighted the fact that the defendant has confirmed, acknowledged
and admitted the total of the principal amount of the outstanding
Invoices reflected upto the accounting year 2018-19 vide the
Confirmation of Accounts dated 08.07.2019. The copy of signature and
stamp by the defendant on the said Confirmation of Accounts is annexed
to the plaint.
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6. In reply to the application, the defendant has contended that
the suit is barred by limitation, it is filed without any cause of action. It is
also contended that the plaintiff failed to make delivery of goods within
time and the defendant suffered huge loss in business due to the delay in
supplying of goods, majority of the goods were damaged, defective and
the same was communicated to the plaintiff time and again. It is also
contended that cheques were forcibly taken on pretext of security and not
due to business transactions, cash of Rs.10,00,000/- (Rupees Ten Lakhs
only) was given as loan amount @18% p.a. interest on return. It is
further claimed that the plaintiff did not initiate action under Section 138
of Negotiable Instrument Act, 1881. It is also alleged that the goods are
lying at Bhiwandi as they are returned from the buyers and plaintiff has
been provided the Loading receipts but plaintiff is not ready to accept
returned goods due to guilty consciousness.
7. After going through the plaint, Written Statement (in the
form of reply to the plaint), the application and reply thereto in this
commercial dispute relating to sale of goods, the only defence taken by
the defendant is that of denial without support of any document. The
plaintiff is relying upon invoices Exh. A (colly), the Confirmation of
Accounts (Exh.c), Copies of Cheques and dishonored Memos (Exh.b),
Copies of Statement of Accounts of the defendant in the Books of Account
of plaintiff for the relevant years (Exh.d). Even though, the defendant has
initially denied claim of the plaintiff, he has taken the defence that the
goods were substandard, there was delay in supplying the goods causing
huge loss in business to the defendant. By making above averments, the
defendant has virtually accepted delivery of goods by the plaintiff. As
rightly submitted by the Ld. Advocate for the plaintiff, the transaction
between the plaintiff and the defendant started in June, 2017 but there
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was no single written communication from the defendant that the goods
were defective or substandard quality. The confirmation of accounts by
the defendant is an admission of the claim. Therefore, it can be safely
inferred that the defence is created by the defendant only to prolong
outcome of the suit.
8. Even though, the issue of limitation is raised by the
defendant, the specific averment should have been made as to why the
suit is barred by limitation. After going through the plaint allegations, the
suit for recovery of money filed within 3 years from the accrual of cause
of action is within limitation and therefore, the defence on that ground is
also without any substance.
9. The Commercial Courts Act, 2015 is enacted by the
Parliament with the object as a measure for speedy settlement of
commercial disputes and facilitate ease of doing business. Even though,
there is reference to loan transaction of Rs.10,00,000/- (Rupees Ten
Lakhs only) in the Written Statement, it is also without any foundation by
documentary evidence. From the above, the defendant has no real
prospects of successfully defending the claim. There is no other
compelling reason why the claim should not be disposed off before
recording of oral evidence. Therefore, I deem it fit to give judgment on
the claim by granting the application. Therefore, the application is
alleged and following order :
ORDER
1. The claim made in the application for Summary Judgment (Exh.6)
is allowed with costs.
2. The defendant is directed to pay a sum of Rs.52,90,952/- (Rupees
Fifty Two Lakhs Ninety Thousand Nine Hundred and Fifty Two
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only) within 2 months from the date of decree.
3. The defendant is also directed to pay interest @ 12% p.a. on the
aforesaid sum of Rs.52,90,952/- (Rupees Fifty Two Lakhs Ninety
Thousand Nine Hundred and Fifty Two only) from the date of
filing of the suit till the date of payment.
4. Decree be drawn up accordingly.
sd/-
(C. V. Marathe)
Judge,
Date : 25.02.2020. City Civil Court, Gr. Mumbai.
Dictated on : 25.02.2020
Transcribed on : 25.02.2020
Signed by HHJ on : 27.02.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 27.02.2020 at 1.13 p.m.
NAME OF STENOGRAPHER : Mrs. G. P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
25/02/2020
JUDGMENT/ORDER signed by
P.O. on
27/02/2020
JUDGMENT/ORDER uploaded
on
27/02/2020
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