Final Order 1

Order Details: Other
Pdf Text: ..1.. Summons for Judgment No.245 of 2019
MHCC010105212019 Presented on : 16/10/19
Registered on : 16/10/19
Decided on : 17/02/26
Duration : 06Y : 04M : 01D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
SUMMONS FOR JUDGMENT NO. 245 OF 2019
IN
COMMERCIAL SUIT NO.120 OF 2021
(OLD SUMMARY SUIT NO. 1149 OF 2018)
M/s. Kantilal Sanghvi & Co. ] ..Plaintiff
Versus
United Bank of India & Others ] ..Defendants
Appearance :-
Learned Adv. Rajesh Revankar i/b A G Revankar for plaintiff.
Learned Adv. Aditi Giri i/b M. V. Kini and Co. for defendants.
CORAM : SACHIN SURYAKANT PATIL,JUDGE
COURT ROOM NO.32.
DATE : 17/02/2026.
O R D E R
[ Delivered on 17/02/2026 ]
1) This is summary suit filed for recovery of amount. Heard
the arguments of both parties on summons for judgment.
2) Advocate for plaintiff argued that plaintiff firm is proprietary
concern dealing in the business of export and import. Defendant No.3
had placed an order for supply of 1960 kg of Selenium Metal Powder
for total sum of USD 82,124/-. On the same day sales contract was
executed between plaintiff and defendant No.3. Defendant No.1 bank is
the plaintiff bank through which export invoices are routed for
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collection. Defendant No.2 is the government of India undertaking. It is
formed to guarantee export credits. After the order placed by the
defendant No.3, plaintiff shipped the material to defendant No.3 and
the delivery was affected on 10.10.2017. Thereafter, plaintiff sent the
documents to defendant No.1 for collection of amount of USD 6,704/-
from defendant No.3. However, defendant No.1 did not make the
payment. Defendant No.1 in its e-mail dated 30.11.2017 has admitted
that there was mistake on the part of defendant No.1 for sending
documents directly to defendant No.3. Defendant No.1 is liable to pay
the price of goods exported to defendant No.3. However, in spite of
repeated demand and notice sent to defendant No.1, it failed to pay the
amount. Hence this suit has been filed for recovery of amount from
defendant No.1. Defendant not have no good and substantial defense.
Therefore, plaintiff is entitled for decree by making summons for
judgment absolute.
3) After filing of present suit first writ of summons was served
upon the defendants. Thereafter, defendant No.1 has appeared.
Thereafter, plaintiff has moved the summons for judgment and served it
upon the defendant. Defendant No.1 filed the reply affidavit claiming
unconditional leave of defense. According to defendant No.1 the suit is
not based on any bill of exchange, promissory note, hundi or cheque.
The suit is not tenable as a summary suit. They have never admitted
liability to pay the price of goods sold and exported by plaintiff to
defendant No.3. There is no admission of liability on their part. There
are triable issues, which need to be adjudicated on merit. Defendant
No.1 has good and substantial defense. Plaintiff has not claimed any
relief against the defendant Nos. 2 and 3 who are primarily liable for
the price of goods. The plaintiff Just wants to extort money from the
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..3.. Summons for Judgment No.245 of 2019
defendant No.1 without any liability. Defendant No.1 has good and
bonafide defense. Hence, it is entitled for the unconditional leave to
defend. Hence, summons for judgment cannot be made absolute.
4) I have heard the arguments of both parties. In view of aforesaid
facts, following points arise for my determination. I have recorded my
findings thereon for the reasons stated as under :
POINTS FINDINGS
1. Whether defendant No.1 is entitled for
unconditional leave of defense ?
Yes.
2. What order ? As per final order.
R E A S O N S
AS TO POINT NOS.1 & 2 :
5) According to plaintiff, plaintiff firm is proprietary concern
dealing in the business of export and import. Defendant No.3 had
placed an order for supply of 1960 kg of Selenium Metal Powder for
total sum of USD 82,124/-. On the same day sales contract was
executed between plaintiff and defendant No.3. Defendant No.1 bank is
the plaintiff bank through which export invoices are routed for
collection. Defendant No.2 is the government of India undertaking. It is
formed to guarantee export credits. After the order placed by the
defendant No.3, plaintiff shipped the material to defendant No.3 and
the delivery was affected on 10.10.2017. Thereafter, plaintiff sent the
documents to defendant No.1 for collection of amount of USD 6,704/-
from defendant No.3. However, defendant No.1 did not make the
payment. Defendant No.1 in its e-mail dated 30.11.2017 has admitted
that there was mistake on the part of defendant No.1 for sending
documents directly to defendant No.3. Defendant No.1 is liable to pay
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..4.. Summons for Judgment No.245 of 2019
the price of goods exported to defendant No.3. However, in spite of
repeated demand and notice sent to defendant No.1, it failed to pay the
amount. Hence this suit has been filed for recovery of amount from
defendant No.1. Defendant not have no good and substantial defense.
6) Evidently the plaintiff has filed the suit on the basis of sale
transaction between the plaintiff and defendant No.3. According to
plaintiff, it had exported goods to defendant No.3 worth US$ 82,124/-
Out of the said amount US$ 75,420/- was paid in advance and balance
among of USD 6704 is still due. Defendant No.1 is the banker of
plaintiff through which export invoices of plaintiff were routed for
collection and it is liable to pay balance amount of USD 6704. Plaintiff
has not filed original documents on record. Therefore, the suit cannot
be decreed without proof of documents and contents thereof. Plaintiff
has just filed photo copies of documents on record. The copies of e-
mails produced by the plaintiff do not show the specific admission on
the part of defendant No.1 to pay the balance amount of USD 6704/-.
The copy of contract produced by the plaintiff nowhere shows that
defendant No.1 is liable to pay the balance amount of price of goods
sold and exported by the plaintiff to defendant No.3. Evidently,
defendant No.3 which is the foreign entity had placed purchase order
with plaintiff. Therefore, the primary liability to pay price of goods lies
with defendant No.3. However, plaintiff in the present suit has not
claimed any relief against the defendant No.3. Plaintiff has also not
claimed any relief against defendant No.2. There is no written
admission of liability on the part of defendant No.1. Defendant No.1
has denied the liability to pay the claim amount. In such circumstances
in my view there are triable issues which needs to be tried and
adjudicated on merit. At this stage suit cannot be decreed without
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leading the evidence and opportunity of cross-examination to the
defendant No.1. Defendant No.1 has raised fair, bonafide and
reasonable defense. Defendant No.1 is entitled for unconditional leave
to defend for this suit. Hence, answering while point No.1 in
affirmative, I pass the following order.
ORDER
1. Summons for Judgment No.245 of 2019 is disposed
off in following terms.
2. Unconditional leave to defend is granted to the
defendant.
3. Defendant shall file the written statement on next date
without fail.
4. Summons for judgment is disposed of accordingly.
(Judgment dictated and pronounced in open Court)
( Sachin Suryakant Patil )
Judge, City Civil & Sessions Court,
Mazgaon, Mumbai, Court No.32
Dated :17/02/2026
Dictated and typed on :17/02/2026.
Signed by HHJ on :17/02/2026.
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..6.. Summons for Judgment No.245 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Mahesh Shamrao Lugade
Name of Stenographer	18/02/26 05.30 p.m.
Name of the Judge (With C.R. No.) SACHIN SURYAKANT PATIL,JUDGE
(COURT ROOM NO.32)
Date of Pronouncement of JUDGMENT /
ORDER
17/02/26
JUDGMENT / ORDER signed by P.O. on 17/02/26
JUDGMENT / ORDER uploaded on 18/02/26
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