Final Order 3

Order Details: Other
Pdf Text: SJ No.100236 / 2019,
Navnit – Royal Dyers
Order (Exh.8) 1 of 7
City Civil and Sessions Court, Mazgaon Greater Mumbai
Court Room No. 31 – Commercial Court
(Additional District Judge : Vijay S. Hingne, LL. M.)
SJ Filed : 26.09.2019
Arguments Heard : 31.07.2024
Decided on : 31.07.2024
Duration : 04 Y, 10 M, 05 D
MHCC010099442019
Exhibit No. 8
Commercial Suit No. 100703 / 2021
Summons for Judgment No. 100236 / 2019
Plaintiff : Navnit Radhakishan Loya
VERSUS
Defendants 1 M/s. Royal Dyers
2 Annuidin Nawab Khan
Appearances
Plaintiff
: Adv. Shri Mahesh Devani
Defendants
: Adv. Shri S. C. Gupta
Summons for Judgment
****************************************************
ORDER
(Pronounced on this 31st Day of July, 2024)
Plaintiff has preferred Summons for Judgment.
Defendants are seeking leave to defend.
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Points for determination :
2) Perused record. Heard the Learned Counsels. Points for
determination, findings and reasons are as follows :
Points
Findings
1. Whether by Summons for
Judgment, the plaintiff is entitled
for Decree?.................................. In the Negative
2. Whether defendants satisfy that
they have substantial case for
leave to defend?.....................….. As per final order.
3. What order? …………………… As per final order.
R E A S O N S
Reasons as to Point No. 1 to No. 3 :
3) All points being interconnected, are taken for common
discussion.
Case of plaintiff :
4) Navnit Radhakishan Loya, Mumbai, Maharashtra
(hereinafter,
Plaintiff) is Proprietor of M/s. Pushpak Dye Chem.
Defendant No. 1 M/s. Royal Dyers, Mumbai,
Maharashtra (hereinafter,
defendant) is Proprietary Concern of
defendant No. 2 Annuidin Nawab Khan.
5) From time to time, plaintiff had sold, supplied and
delivered goods to defendants and has generated various
Invoices. One of the Invoice is Dt. 19.01.2016. Defendants have
accepted the goods and have acknowledged various Delivery
Challans. One such Delivery Challan is Dt. 19.01.2016.
6) Defendants made part-payments, keeping balance of
.	₹ 6,74,629/-. Defendants also acknowledged statements and
thereby admitted the liability. However, despite telephonic talks,
emails as Dt. 06.05.2017, Legal Notice Dt. 29.01.2018,
27.02.2018, defendants failed to make the payment.
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7) Hence, on 12.07.2018, plaintiff preferred Summary Suit
No. 762 / 2018 for recovery of .	₹ 9,45,492/- with interest @ 18
% p. a.
Subsequently, Suit was re-registered as Commercial
Summary Suit No. 703 / 2021.
Summons for Judgment No. 236 / 2019 (Exh. 8, Dt. 26.09.2019) :
8) As per plaintiff, documents filed by him are sufficient to
prove his case. Against it, defendants do not have triable issue.
Hence, Summons for Judgment, be allowed and Suit be decreed.
Reply by defendants (Exh. 10, Dt. 15.11.2021) :
9) Defendants opposed Summons for Judgment and sought
permission for leave to defend, on following grounds :
i. Plaintiff has not pleaded details about the goods and its
delivery.
ii. No such transaction has taken place.
iii. Suit is not maintainable.
Accordingly, the defenses are taken for deliberation.
Only one Invoice :
10) Plaintiff is claiming recovery of .	₹ 9,45,492/-, on the
ground that, he had supplied goods to defendants.
11) Regarding said claim, plaintiff filed Invoice and
Delivery Challan at page 12 and 13 of the Plaint.
They pertains to goods worth .	₹ 91,140/-.
It means, for recovery of principal amount of
.	₹ 6,74,629/-, plaintiff has annexed only one Invoice worth
.	₹ 91,140/-.
Plaintiff has not given any explanation in the Plaint as to
why he has not annexed other Invoices.
So, if plaintiff is filing photocopy of Invoice worth
.	₹ 91,140/- then on its strength plaintiff cannot be awarded decree
.	₹ 6,74,629/- by way of Summons for Judgment.
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Subsequently filed Invoices :
12) Record shows, Suit is filed on 12.07.2018. In the Plaint,
plaintiff has annexed only one Invoice and one Delivery Challan.
It is subsequently on 28.02.2022, plaintiff filed list of
documents, which contains photocopies of various Invoices and
Delivery Challans.
Regarding filing of documents, Commercial Suits are
guided by Order 11 of the Code of Civil Procedure. So, it was
necessary for plaintiff to have filed all the invoices along with
Plaint itself (12.07.2018), or immediately after 23.09.2021 when
Suit was re-registered and listed as Commercial Summary Suit.
Most importantly, plaintiff has not sought Leave /
Permission of the Court to tender the documents, subsequently.
Hence, subsequently filed documents (28.02.2022),
being without leave of Court, cannot be considered at this stage.
Limited pleading regarding transaction :
13) Plaintiff is claiming supply of goods. Regarding same,
relevant pleading from the Plaint, at Para No. 2, reads as follows :
2. The Plaintiff states that as per the Orders and
instructions of the Defendants from time to time, he has
sold, supplied and delivered his goods to the Defendants
from time to time under his various Invoices. The
amount of the said Invoices have been duly debited to
the Account of the Defendants and for the part
payments received, the Plaintiff has given due credit to
the Defendants for the same, however there is still a
balance sum of Rs. 6,74,629=00 remains due and
payable by the Defendants to the Plaintiff at the foot of
Account of the Defendants in the Books of Accounts of
the Plaintiff which is maintained by him in the regular
course of his business. Hereto annexed and marked
Exhibit – “A” is an Extract of the Account of the
Defendants as per the Books of Accounts of the
Plaintiff which is maintained by him in the regular
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course of his business. Hereto annexed and marked
Exhibit – “A1” is a Xerox copy of one of the Invoice
No. AT / 42 dated 19th January, 2016 of the Plaintiff
raised in favour of the Defendants. The Plaintiff craves
leave to refer to and rely upon his various Invoices
when produced.
From aforesaid pleading, following inferences are drawn.
1. Plaintiff has not pleaded the nature of the goods
supplied by plaintiff.
2. Plaintiff has also not disclosed the volume of the goods.
3. Plaintiff has not pleaded the various dates on which the
goods came to be supplied.
4. Plaintiff has also not pleaded details of transportation.
5. Plaintiff has also not pleaded, who had accepted goods
on behalf of defendants.
6.
Plaintiff has also not disclosed on what date, defendants
made part-payments and what was the amount.
Because of above shortcomings, plaintiff cannot be granted
Summons for Judgment.
Seal on Delivery Challan Dt. 19.01.2016 :
14) Plaintiff claimed that, the Delivery Challan at Page 13 of
Plaint bears seal of defendant, as acknowledgment of goods.
Perusal shows, said Delivery Challan Dt. 19.01.2016
bears Seal of Royal Dyers i.e. defendant. However, said Delivery
Challan is of only .	₹ 91,140/-. However, claim raised by plaintiff
is of .	₹ 6,74,629/-. So, against such huge claim, one Delivery
Challan, that too .	₹ 91,140/-, in absence of other Invoices and
Delivery Challans, cannot be of any effect.
Statement of Account :
15) Plaintiff claimed that, regarding transaction with
defendants, he had maintained the account.
Plaintiff filed said account at Page No. 15 of the Plaint.
As per said account, plaintiff appears to have supplied
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the goods from 03.11.2015 to 22.02.2016. Thus, there are about
16 transactions. Despite that, plaintiff has filed only one Invoice
Dt. 19.01.2016.
Citations :
16) Plaintiff has relied upon following rulings of Hon’ble
Superior Courts :
1. Raj Oil Mills Vs. Madhavji Keshavji & Co.
Civil Revision Application No. 336 / 1969 with Civil
Revision Application No. 337 / 1969 Dt. 23.02.1970.
2. Jaishree Chemicals Vs. Esskay Dyeing & Printing
Works in Summons for Judgment No. 23 / 1976 in Suit
No. 1405 / 1975 Dt. 19.04.1976.
3. Sun N Sand Hotel Vs. V. V. Kamat 2003 (3) MhLJ 932.
4. Jyotsna K. Valia Vs. T. S. Parekh 2007 (3) Bom CR
772.
5. Southern Sales and Services Vs. Sauermilch Design and
Handels GMBH, 1982 AIR 1518.
6. Jatin Koticha Vs. VFC Industries, 2008 (2) Bom CR
155.
With humbleness and respect, I submit that, the facts from case in
hand, being different, the observations from cases in Supra, will
not help the plaintiff.
Conclusion :
17) Had plaintiff pleaded all the details and had he filed all
the relevant Invoices, Delivery Challans, then things would have
supported plaintff.
18) Plaintiff has not pleaded details regarding transaction.
He also did not file proper documents. In that circumstances,
plaintiff cannot be granted Summons for Judgment.
Relying upon pleading of plaintiff, defendants have
substantially raised their defenses, which has given rise to
numerous issues. Therefore, plaintiff will have to be directed to
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adduce his evidence and subject himself to cross-examination at
the hands of defendants. Hence, defendants are entitled for
unconditional leave. Therefore, following order is passed :
ORDER
1. Summons for Judgment No. 100236 / 2019 is
dismissed.
2. Unconditional Leave is granted to defendants, to defend
the Suit.
3. Defendants are permitted to file their Written Statement
within 30 days from the date of this Order.
4. If defendants fails to file Written Statement within
stipulated 30 days, then Suit shall proceed without
Written Statement. Accordingly, plaintiff will be
entitled to take appropriate steps, as per rules.
5. Proceeding of Summons for Judgment No. 100236 of
2019 is closed.
6. Order pronounced in Open Court.
7. Parties be informed about their right to challenge this
Order and limitation for same.
8. Record of Summons for Judgment shall be part of
Commercial Suit No. 100703 / 2021.
Mumbai
Dated : 31.07.2024 (Vijay S. Hingne)
Additional District Judge,
Court Room No.31 - Commercial Court,
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
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