Final Order 1

Order Details: Other
Pdf Text: MHCC010110192019 Presented on 02/11/2019
Registered on 02/11/2019
Decided on 26/06/2025
Duration 05Y: 07M: 24D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 251 OF 2019
IN
SUMMARY SUIT NO. 720 OF 2017
V. K. Industrial Corporation Ltd. ]
Through its the Director and Authorized ]
Representative Mr. Virendra Kakubhai Mehta ]
Age: 49 yrs., Occ: Service ]
A Company incorporated under the Indian ]
Companies Act, 1956, having its registered ]
Office at 303/304, Loha Bhavan, 3rd Floor 93, ]
P D''mello Road, Mumbai - 400009. ]...Plaintiff
VERSUS
1. Emperius Infralogistics Private Limited ]
A Company incorporated under the Indian ]
Companies Act, 1956, having its registered ]
Office at 1, 3rd Floor, Plot No. 57, Mulji House ]
Devji Ratansy Marg, Chinch Bunder, ]
Mumbai – 400009. ]
2. Mr Devendra Liladhar Shah ]
Director of Emperius Infralogistics Private Limited ]
Age-Adult, Occupation- Business, having address ]
at 217, Diwadkar Building, Sir Balchandra Road, ]
Matunga Mumbai – 19. ]
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3. Mr. Chetan Ramesh Thakkar ]
Director of Emperius Infralogistics Private Limited ]
Age-Adult, Occupation- Business, having address ]
at 579 Hemjyoti, Flat No. 3, 1st Floor , ]
Jam-E-Jamshed Road, Matunga (East), ]
Mumbai – 400019. ]
4. Mr. Deeip Samirr Shah ]
Director of Emperius Infralogistics Private Limited ]
Age-Adult, Occupation- Business, having address ]
at 580, Patel Palace, 1st Floor , Flat No.6, ]
Jam-E-Jamshed Road, Matunga (East), ]
Mumbai – 400019. ]
5. Mr. Gyan Bhanwarlal Chordia ]
Director of Emperius Infralogistics Private Limited ]
Age-Adult, Occupation- Business, having address ]
at Chaitiya Towers, F. No.1103, 11th Floor, ]
S. H. Marg, Mazgaon, Mumbai-400010. ]
6. Mr. Rakesh Narendra Shah ]
Director of Emperius Infralogistics Private Limited ]
Age-Adult, Occupation- Business, having address ]
at 1701, 17th Floor, Vision Crest, 746, D. S. ]
Babrekar Marg, Dadar (west), Mumbai-400028. ]...Defendants
Appearance :-
Ld. Advocate Karishma Mungekar i/b. Adv. Sahil Mahajan for plaintiff.
Ld. Advocate Amey Deshpande with Adv. Vandana Bait for defendant.
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CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO.: 81
DATE : 26/06/2025.
ORDER
( Dictated and pronounced in open Court)
01] The plaintiff has filed summons for judgment against
defendants on 26/07/2019. Defendant No.1 filed reply on affidavit to
summons for judgment and resisted it and prayed for unconditional
leave to defend the suit. Further, matter against defendants No. 2 to 6
is proceeded ex-parte.
02] As per plaintiff, it is a registered Company under the
Companies Act and carrying on business on the address mentioned in
the title cause. Defendant No.1 is a Private Limited Company
registered under Companies Act. Defendant Nos. 2 to 6 are partners of
it. Further, defendant No.1 has placed order through one M/s. Labdhi
Enterprises with the plaintiff for supply of steel plates of different sizes.
Accordingly, plaintiff has sold goods to defendant No. 1 to the tune of
Rs.3,11,45,085/- and same is received by defendants without any
objection or dispute. Plaintiff has raised invoices between 25/10/2016
to 07/12/2016 for said amount. Defendants through M/s. Labdhi
Enterprises have made part payment of Rs. 2,78,84,608/-. However,
failed and neglected to make the payment of Rs.32,60,477/-.
Therefore, plaintiff issued Insolvency notice dated 06/02/2017
u/s. 9 of Insolvency and Bankruptcy Code 2016 and called upon
defendants to make the payment of Rs.1,02,60,478/- along with
interest at the rate of 18% p.a. Defendant No.1 vide Letter dated
14/02/2017 informed plaintiff that they had made payment of
Rs. 2,78,84,608/- to Labdi Enterprises and denied balance outstanding
amount. The defendant again issued notice to defendant No. 1 and
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called upon it to make the balance payment of Rs. 32,60,477/- with
interest at the rate of 18% p.a. It is further submitted that defendant
No. 1 has admitted the liability and therefore, summons for judgment
may be made absolute. Defendant No. 1 has not raised any substantial
defence therefore, defendant No. 1 is not entitled for leave to defend
the suit. Hence, summons for judgment may be allowed with costs.
03] On the other hand, it is argued on behalf of defendant
No.1 that the suit filed by plaintiff against defendants is not
maintainable on the ground that defendants No. 2 to 6 are directors of
defendant No.1 and they cannot be made personally liable. There is no
cause of action against defendants No. 2 to 6 therefore, suit is hit by
provisions of misjoinder of parties. Further, it is the contention of
plaintiff that defendants have placed orders through M/s. Labdhi
Enterprises however, it is not made party. Therefore, suit is hit by non-
joinder of necessary party. As defendant No.1 has placed order through
M/s. Labdhi Enterprises, there is no privity contract between plaintiff
and defendant No. 1. It is further submitted that defendant No. 1 had
placed verbal and email communication order to M/s. Labdhi
Enterprises for the year 2013-2014 to purchase various types of Steel
Plates. Further, it was the condition of defendant No. 1 to provide said
goods within two weeks from the date of purchase order i.e.
24/08/2016. The M/s. Labdhi Enterprises had placed orders with
plaintiff to supply goods to defendant No. 1 and accordingly plaintiff
supplied some goods to defendants. However, plaintiff has not supplied
entire goods as per purchase order placed by defendant No.1 and
further goods were delivered at belated stage. Therefore, defendant
No. 1 had to purchase goods from other dealers that to as per market
rate and has to pay extra price. It is further submitted that due to said
reasons defendant No. 1 has suffered huge loss of Rs. 1,00,00,000/-.
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Therefore, defendant No. 1 had informed M/s. Labdhi Enterprises and
cancelled the order. It is further submitted that therefore, defendant
No. 1 is not liable to pay any amount to the plaintiff as claimed.
Defendant No. 1 has raised substantial defence and therefore, it is
entitled for unconditional leave to defend the suit. Hence, summons
for judgment may be dismissed.
04] Perused summons for judgment, reply and record of the
case. Heard both parties. On perusing contentions of both the parties,
it is not disputed that defendant No. 1 had placed purchase order to
purchase Steel Plates with M/s. Labdhi Enterprises. Further, said
M/s. Labdhi had placed orders with plaintiff. Defendant No.1 to
support its contention has filed photocopy of said purchase order
(Exh. A colly). On perusing said purchase order in delivery schedule it
is specifically mentioned 'two weeks from the date of receipt of
purchase order'. The purchase order was sent to M/s. Labdhi
Enterprises on 26/08/2016. It means defendant No. 1 ought to have
received goods on or before 09/09/2016. The office copy of delivery
challan is dated 03/11/2016 and 07/11/2016 filed on record vide list
Exh. 5/3 and 5/7. Further, invoices, lorry receipts and weighing are
also dated 03/11/2016 and 07/11/2016 filed on record vide list Exh.
5/2, 5/4, 5/5, 5/8, 5/9 and 5/10. Further, as per defendant No. 1 it
required 1202.567 MT at the rate of Rs. 35,200/-. However, on
perusing invoice vide list Exh. 5/2 it for 33.600 MT, invoice vide list
Exh. 5/6 it for 68.440 MT and invoice vide list Exh. 5/10 it for 25.380
MT. Thus, at this stage, it appears that plaintiff has not supplied
1202.567 MT and that too within scheduled period of two weeks. It is
needs adjudication as it is triable issue.
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05] As per contention of plaintiff, it had supplied goods to the
tune of Rs. 3,11,45,085/- to defendant No.1 and defendant No. 1
made part payment of Rs.2,78,84,608/- through M/s. Labdhi
Enterprises. Even, defendant No. 1 has contended that amount was
paid M/s. Labdhi Enterprises. Admittedly, said M/s. Labdhi Enterprises
is not made a party to the suit. Defendant No. 1 has raised defence that
therefore, suit is hit by principle of non-joinder of party. It is also
contention of defendant No.1 that defendants No.2 to 6 being
Directors of defendant No. 1 Company they cannot be made personally
liable and thus suit is bad for mis-joinder of parties. These issues
needs to be adjudicated, as said issues are reasonable issues.
06] Further, it appears defendant No.1 has made part payment
and balance payment of Rs. 32,60,477/- defendant No. 1 failed to pay.
Therefore, plaintiff issued notice dated 06/02/2017 filed on record
vide List Exh. 5/11. It is pertinent to note that defendant No. 1 has
replied to said notice on 14/02/2017 and it is filed on record vide List
Exh.5/14. On perusing said notice, it is specifically contended by
defendant No.1 that goods were to be delivered to him within two
weeks from the date of said purchase order. Further, it is contention of
defendant No.1 that due to Non performance of purchase order by
M/s. Labdhi Enterprises, defendant No. 1 had to purchase goods from
market at higher rate. Further, defendant No. 1 sustained huge loss of
Rs.1,00,00,000/-. Further, defendant No.1 has filed photocopy of letter
dated 26/12/2016 sent to M/s. Labdhi Enterprises (page 26) of reply.
On perusing said letter, it appears that defendant No. 1 contended that
if goods are not received till 31/12/2016 as per purchase order dated
24/08/2016 then defendant No. 1 will give purchase order for balance
goods to some other party. Further, defendant No.1 has filed photocopy
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of email and letter dated 26/12/2016 sent to M/s. Labdhi Enterprises
(page 27 and 28) of reply. On perusing said email and letter, it
appears that defendant No.1 cancelled purchase order dated
24/08/2016. Further, defendant No.1 to demonstrate has filed
photocopies of invoices raised by one C. D. Patel & Sons dated
06/01/2017, 10/01/2017, 11/01/2017, 12/01/2017, 19/04/2017,
21/04/2017, 03/05/2017 and 24/05/2017. Defendant No. 1 also
filed photocopies of invoices raised by one MPB Metals Private Limited
dated 13/07/2017 and 21/11/2017. Further, defendant No. 1 has filed
photocopies of work order placed with M/s. Ganesh Benzoplast
Limited.
07] Defendant No.1 has specifically raised defence of mis-
joinder and non-joinder of necessary party and privity of contract
between plaintiff and defendant No.1. Further, defendant No.1 also
raised triable issue that as plaintiff has not supplied goods within time
period he has sustained huge loss. Admittedly, these issues requires
adjudication. Further, on perusing documents filed by plaintiff, it
appears that plaintiff has filed original weighing receipt, photocopy of
invoices and delivery challan and office copies of Lorry Receipts, notice
issued to defendants. Even, defendant No. 1 has filed photocopies in
support of its contentions. It is settled law that all original documents
are required to be filed at the time of hearing of summons for
judgment in view of ratio laid down in in Neebha Kapoor Vs. Jayantilal
Khandwala and others, AIR 2008 SC 1117 wherein, Hon'ble Apex
Court has observed that, '
at the time of hearing summons for
judgment, plaintiff has to file original documents.' Therefore,
considering the reasons, plaintiff as well as defendant No. 1 have not
filed all original documents. Further, defendant No.1 has raised
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reasonable triable issues, it is necessary to grant unconditional leave to
defendant No. 1. Hence, I proceed to pass following order.
ORDER
1] Summons for judgment No. 251/2019 is disposed off as follows:-
(a) Defendant No. 1 is granted unconditional Leave to defend
the suit and directed to file written statement on or before
next date.
2) Summons for Judgment No.251/2019 is disposed off
accordingly.
(Sangram. S. Shinde)
Adhoc Judge,
City Civil Court, Mazgaon, Mumbai.
C.R.No.81
Date- 26/06/2025
Dictated on : 26/06/2025
Corrected & signed on : 30/06/2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
01/07/2025 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 25/06/2025
JUDGMENT/ORDER signed by P. O. on 30/06/2025
JUDGMENT/ORDER uploaded on 01/07/2025
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