Interim Order 1

Order Details: Other
Pdf Text: Summary Judgment No.100017 / 2022, Ciess - Sharayu Order (Exh.6) 1 of 12
City Civil and Sessions Court, Mazgaon, Greater Mumbai
Court Room No. 31 – Commercial Court
(Additional District Judge : Vijay S. Hingne, LL. M.)
MHCC010113722019
Summary Judgment Filed : 27.02.2020
SJ Registered : 07.07.2022
Arguments closed : 02.07.2024
Decided on : 09.07.2024
Duration : 4 Y, 4 M, 12 D
Exhibit No. 6
Commercial Suit No. 100191 / 2019
Summary Judgment No. 100017 / 2022
Plaintiff : M/s. Ciess Texaux Speciality Chemicals
VERSUS
Defendants 1 Sharayu Synthetic Processors
2 Ajay Narayan Bhoir
3 Atul Narayan Bhoir
4 Narayan Janu Bhoir
5 Vanita Narayan Bhoir
Appearances
Plaintiff
: Adv. Ms. Snehal Modi
Defendant No. 1, 3 to 5
: Ex-parte.
Defendant No. 2
: Adv. Atul Pandey,
Adv. Pawan Mishra,
Adv. Nitesh Dubey
Summary Judgment
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Summary Judgment No.100017 / 2022, Ciess - Sharayu Order (Exh.6) 2 of 12
ORDER
(Pronounced on this 09th Day of July 2024)
Plaintiff has preferred Summary Judgment.
Points for determination :
2) Perused record. Heard the Learned Counsels. Points for
determination, findings and reasons :
Points
Findings
1. Whether plaintiff is entitled for
Summary Judgment?.................... As per final order.
2. What Order? …………………… As per final order.
R E A S O N S
Case of plaintiff :
3) M/s. Ciess Texaux Speciality Chemicals Pvt. Ltd.,
(hereinafter,
Plaintiff), is registered company, engaged in
business of manufacturing of textile chemicals and auxiliaries.
On 04.09.2017, plaintiff, through Business Transfer
Agreement (hereinafter,
BTA), took over business of Esskay
Enterprises. Thereby, plaintiff acquired assets, liabilities and
recoverable debts of Esskay Enterprises.
Defendant No. 1 Sharayu Synthetic Processors, is
partnership firm, engaged in business of textile.
Defendant No. 2 Ajay Narayan Bhoir, defendant No. 3
Atul Narayan Bhoir, defendant No. 4 Narayan Janu Bhoir and
defendant No. 5 Vanita Narayan Bhoir are its partners
(hereinafter,
defendants / D1 / D2 / D3 / D4).
4) From time to time, plaintiff (Ciess Texaux and Esskay
Enterprises) sold, supplied and delivered textile chemicals and
auxiliaries (hereinafter,
goods) to defendants. Plaintiff raised last
Invoices on 16.09.2016 for . 28,339/- and .10,432/-.	₹ ₹
All Delivery Challans bear seals of defendant No. 1,
acknowledging the receipt of the goods.
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5) Regarding transaction with Ciess Texaux, defendant, on
08.11.2016, were under liability of . 32,22,311.25/-.	₹
Its Ledger Account of 01.04.2016 to 08.11.2016 was
confirmed by defendants.
Against it, by 13.07.2017, defendant paid . 2,00,000/-.	₹
6) Regarding transaction with Esskay Enterprises,
defendants, on 09.11.2016, were under liability of . 11,61,662/-.	₹
Its Ledger Account of 01.04.2016 to 09.11.2016 was
confirmed by defendants.
Against it, by 13.09.2017, defendants paid . 90,000/-.	₹
7) Towards existing liability, defendants issued Cheques in
favour of the plaintiff. However, they were dishonoured. Hence,
plaintiff preferred Complaint before the Learned Metropolitan
Magistrate, 72nd Court, Vikroli, Mumbai.
8) Plaintiff issued Demand Notice on 25.10.2019.
However, defendants neglected the payment.
Hence, On 07.11.2019, plaintiff preferred present
Commercial Suit No. 100191 / 2019, for recovery of
.	₹
72,97,729.25/-, with interest @ 24 % p. a.
Written Statement of defendant No. 2 (Exh.4, Dt. 13.02.2020) :
9) Defendant No. 2 prayed for dismissal of Suit with Costs,
on following grounds :
1. Delivery Challan bears rubber stamp of defendant No. 1
in acknowledgment of acceptance of the goods, by the
employee of defendants.
2. Against orders placed from time to time, defendants
made payment.
3. Plaintiff supplied inferior quality chemicals. When
defendants brought it to the notice of plaintiff, plaintiff
assured replacement and adjustment in the accounts.
4. Credit period was of 60 days, but there was no
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Agreement regarding interest.
5. Defendants are not aware about BTA between Esskay
Enterprises and Ciess Texaux. Said BTA is on Stamp of
. 500/-. It is unregistered and improperly stamped.
₹
6. Plaintiff never disclosed Ledger entries to defendants.
7. Ledger Account Dt. 01.04.2016 to 08.11.2016 mentions
signature of defendant as partner and also as authorized
representative. It is fabricated document, created only to
bring the Suit within limitation.
8. Ledgers Account are maintained on monthly or
quarterly basis. Plaintiff has maintained ledger account
for odd duration i.e. from 1st April to 8th November.
9. By 13.07.2016, defendant paid .2,00,000/-. However,
₹
defendant is not under the liability.
Defendant No. 1, No. 3 to No. 5 :
10) D1, D3 to D5 were served with Suit Summons, but they
failed to appear. Hence, my Learned Predecessor, vide Order Dt.
11.02.2021 and Dt. 11.04.2022, directed the Suit to proceed ex-
parte against D1, D3, D4 and D5.
Summary Judgment No.100017 / 2022 (Exh.6, Dt. 27.02.2020) :
11) After Written Statement of D2 (
13.02.2020), plaintiff
filed application for Summary Judgment on
27.02.2020.
In Summary Judgment, plaintiff contended that, it has
pleaded and proved all details in support of claim. Against it,
there is no case by defendant. Hence, Suit be decreed.
Roznama shows that, D2 appeared on few dates, but did
not replied the Summary Judgment.
From time to time, defendant No. 2 was directed to take
appropriate steps regarding Reply. However, it failed. Hence, the
Summary Judgment is being put for Order.
Reasons as to Point No. 1 to No. 2 :
12) Points being interconnected, are commonly discussed.
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Pleading :
13) Perusal of pleading from Plaint shows that, plaintiff
merely stated that,
he is filing last two invoices Dt. 16.09.2016.
Thereafter, plaintiff nowhere disclosed as to, what were
the total number of invoices, what are the dates of other invoices
and how much amount is due against which invoice.
Filing of new documents at belated stage, without leave of Court :
14) Present Suit is filed on
07.11.2019. With plaint, plaintiff
filed List of documents (Page 18), with 48 documents which
includes
two Invoices Dt. 16.09.2016.
Thereafter, Written Statement was filed by D2 on
13.02.2020.
Thereafter, plaintiff preferred application for Summary
Judgment which includes
142 Invoices of Ciess Texaux and
132
Invoices of Esskay Enterprises.
Is means, plaintiff is filing 274 new documents.
15) Relevant portion of Order 11 of the Code of Civil
Procedure, applicable to Commercial Courts, reads as :
ORDER XI : Disclosure, Discovery and inspection of
documents in suits before the commercial division of a
high court or a commercial court :
1. Disclosure and discovery of documents.—
(1) Plaintiff shall file a list of all documents and
photocopies of all documents, in its power, possession,
control or custody, pertaining to the suit, along with the
plaint, including :
(a) documents referred to and relied on by the
plaintiff in the plaint;
(b) documents relating to any matter in question in
the proceedings, in the power, possession, control
or custody of the plaintiff, as on the date of filing
the plaint, irrespective of whether the same is in
support of or adverse to the plaintiff’s case;
(c) nothing in this Rule shall apply to documents
produced by plaintiffs and relevant only––
(i) for the cross-examination of the defendant’s
witnesses, or
(ii) in answer to any case set up by the
defendant subsequent to the filing of the plaint,
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or
(iii) handed over to a witness merely to refresh
his memory.
(2) The list of documents filed with the plaint shall
specify whether the documents in the power,
possession, control or custody of the plaintiff are
originals, office copies or photocopies and the list shall
also set out in brief, details of parties to each document,
mode of execution, issuance or receipt and line of
custody of each document.
(3) The plaint shall contain a declaration on oath from
the plaintiff that all documents in the power, possession,
control or custody of the plaintiff, pertaining to the facts
and circumstances of the proceedings initiated by him
have been disclosed and copies thereof annexed with the
plaint, and that the plaintiff does not have any other
documents in its power, possession, control or custody.
Explanation.––A declaration on oath under this sub-rule
shall be contained in the Statement of Truth as set out in
the Appendix.
(4) In case of urgent filings, the plaintiff may seek leave
to rely on additional documents, as part of the above
declaration on oath and subject to grant of such leave by
Court, the plaintiff shall file such additional documents
in Court, within thirty days of filing the suit, along with
a declaration on oath that the plaintiff has produced all
documents in its power, possession, control or custody,
pertaining to the facts and circumstances of the
proceedings initiated by the plaintiff and that the
plaintiff does not have any other documents, in its
power, possession, control or custody.
(5) The plaintiff shall not be allowed to rely on
documents, which were in the plaintiff’s power,
possession, control or custody and not disclosed along
with plaint or within the extended period set out above,
save and except by leave of Court and such leave shall
be granted only upon the plaintiff establishing
reasonable cause for non-disclosure along with the
plaint.
(6) The plaint shall set out details of documents, which
the plaintiff believes to be in the power, possession,
control or custody of the defendant and which the
plaintiff wishes to rely upon and seek leave for
production thereof by the said defendant.
(7) The defendant shall file …..
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Through above provision, it is clear that,
at the time of
filing of the plaint itself, plaintiff has to file list of all documents,
which are in his possession, control, power or custody, pertaining
to the Suit.
Order 11 Rule 1 (3) further mandates that, plaintiff has
to make declaration on oath about all documents, which are in his
possession.
Order 11, Rule 1 (4) permits the plaintiff to file
additional documents, but with permission of the Court.
Order 11, Rule 1 (5) mandates that, plaintiff shall not be
allowed to rely on documents, which were in his power,
possession, control or custody and were not disclosed with Plaint
within any such extended period or without leave of the Court.
It means, if plaintiff is required to file additional
documents, then he will have to seek leave of the Court by
establishing reasonable cause for non disclosure of these
documents along with the Plaint.
16) In present case, along with the Plaint, plaintiff filed
merely
2 invoices. Subsequently, plaintiff filed additional
274
invoices.
Plaintiff gave no explanation for non disclosure of these
documents along with the Plaint. He also did not sought
permission of the Court, for such belated filing of the documents.
17) Perusal shows, plaintiff has filed Suit on
06.11.2019 and
has prayed for interim reliefs. So, as per Order 11 (4), if plaintiff
is seeking interim reliefs, then he can file limited documents.
However, then, plaintiff is required to obtain permission
of the Court
on 06.11.2019, giving details and reasons, as to
which documents he is filing, which documents he is not filing,
which documents he intends to file subsequently. He is also
required to give reason for doing so.
However, no such application is preferred by plaintiff.
Similarly, there is nothing on record, which will point that, my
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Learned Predecessor has granted Leave to plaintiff to come with
limited documents and to subsequently file remaining documents.
No such Order is brought to the notice of this Court.
18) Most importantly, the Invoices, which are filed by the
plaintiff at the stage of Summary Judgment, are of such nature
that, they were very much available with the plaintiff, at the time
of filing of the Suit. It cannot be the case that, these documents
were procured by plaintiff, subsequently or they were in custody
of some other person or they were prepared subsequently. So,
when these documents were very much in possession of plaintiff
then, he ought to have filed it along with the Plaint.
However, that has not been done by the plaintiff.
Plaintiff did not sought Leave of the Court to file these
additional document, at the stage of Summary Judgment.
Plaintiff gave no explanation for non filing of these
documents along with Plaint. Thus, plaintiff failed to follow the
mandate of the Legislation.
Unregistered Business Transfer Agreement :
19) Plaintiff claimed that, through BTA Dt. 04.09.2017,
Ciess Texaux took over business of Esskay Enterprises.
Plaintiff has filed copy of BTA. Perusal shows that, it is
notarized document on a stamp of . 500/-.	₹
Thus triable issues arise as,
whether such transfers can
be carried out on mere stamp-paper of . 500/- and as to whether
₹
said BTA was subjected to necessary approval of concerned
authority and
whether Ciess Taxaux can claim recovery on behalf
of Esskay Enterprises.
Limitation :
20) One defense raised by defendant in Written Statement is
of,
limitation.
Through Summary Judgment, plaintiff is praying that,
in absence of evidence, his Suit be decreed. So, though defendant
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has not filed reply to Summary Judgment, however, limitation
being mixed question of law and facts, will require deliberation.
21) Plaintiff pleaded that, last Invoice is Dt. 16.09.2016.
Limitation for filing recovery Suit is of three years. So,
three years limitation will commence from 17.09.2016 and will
conclude on 16.09.2019.
Suit is filed on 07.11.2019.
Thereby, issue of limitation will require adjudication.
Limitation and Part-payments :
22) Plaintiff claimed that, on 13.07.2017 and 13.09.2017, the
defendants made part-payment.
Regarding same, relevant pleading from Para No. 8 and
No. 14 from the Plaint, reads as follows :
8. The Plaintiff states that thereafter from 9th November
2016 to 13.07.2017 a sum of Rs. 2,00,000/- (Rupees
Two Lakhs only) has been paid by the Defendants to the
Plaintiff with the last payment being made on
13.07.2027. …..
14. The Plaintiff states that thereafter from 9th
November to 13.09.2017 a sum of Rs. 90,000/- has been
paid by the Defendants to the said Esskay Enterprise
with the last payment being made on 13.09.2017.
Thereby, plaintiff is claiming that, defendants, on 13.07.2017 and
13.09.2017, made part-payment of . 2,00,000/- to Ciess Texaux	₹
and . 90,000/- to Esskay Enterprises.	₹
However, plaintiff did not pleaded any details as to what
was mode of this payment, whether it was cash or by some
negotiable instrument.
Suit is governed by Commercial Courts Act and
amended provisions of Code of Civil Procedure, applicable to
Commercial Courts. So, it is mandatory for the plaintiff to plead
each and every fact in detail, especially, if on the basis of such
fact, if he is claiming benefit of limitation.
So, in absence of surrounding details relating to part-
payment, said pleading, cannot be considered, at this stage.
Thereby, the issue relating to limitation, continues.
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Limitation and Cheques dated 17.07.2017, 26.07.2017 :
23) Plaintiff claimed that, towards part-payment, defendant
had issued Cheques. Regarding same, plaintiff pleaded in Para
No. 17 as follows :
17. In fact the Defendants have issued some cheques in
favour of the Plaintiff as well as said Esskay Enterprise
and the said cheques have been dishonoured and the
Plaintiff as well as said Esskay Enterprise have filed
Complaints in the Court of Metropolitan Magistrate,
72nd Court at Vikhroli, Mumbai which are pending. The
Plaintiffs crave leave to refer to and rely upon the
papers and proceedings in the said Criminal Complaints
as and when produced.
Plaintiff has filed photocopies of these Cheques. They
bear date as 17.07.2017 and 26.07.2017.
So, according to dates mentioned on Cheque, limitation
commenced from 26.07.2017 and conclude on 25.07.2020.
Suit is filed on 07.11.2019.
However, considering Para No. 17, it is very difficult to
conclude that, these Chques are related with the disputed liability.
Limitation and Ledger Accounts :
24) Plaintiff claimed that, in Ciess Texaux’s Ledger Account
for duration from 01.04.2016 to 08.11.2016, defendant has
acknowledged the debt.
Similarly, in Esskay Enterprises’s Ledger Account for
duration from 01.04.2016 to 09.11.2016, defendant has
acknowledged the debt.
Plaintiff has filed copies of these Ledger Accounts.
There is Seal of company of defendant on these Ledger Accounts.
So, these Ledger Account will recommence the limitation from
09.11.2016. Thereby, 3 years limitation for preferring recovery
Suit will conclude on 08.11.2019.
Suit is filed on 07.11.2019.
25) Defendant has already challenged this Ledger Account
on the ground of fabrication and forgery.
Hence, question arises as to, when Ledger Accounts are
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maintained monthly or quarterly or annually, then how come,
these Ledger Accounts were prepared from 01.04.2016 to
08.11.2016 and from 01.04.2016 to 09.11.2016.
It is not the case of plaintiff that, he had maintained the
Ledger Accounts for odd duration, like this. It is also not the case
of plaintiff that, there were some circumstances, which compelled
him to prepare the Ledger Account for such odd duration.
Thereby, this aspect relating to the Ledger Account and
its impact over limitation, will require detailed evidence of the
plaintiff. On that aspect, plaintiff will have to subject himself for
cross-examination. Till that, the limitation issues continues.
Citations :
26) Plaintiff has relied upon following Judgments of the
Hon’ble Supreme Court :
1. M/s. Star Paper Mills Limited Vs. M/s. Beharilal
Madanlal Jaipuria Ltd., Civil Appeal No. 4102 of 2013
dated 16.12.2021, Hon’ble Supreme Court of India.
2. TVC Skyshop Ltd. Vs. Reliance Communication &
Infrastructure Ltd., (2013) 11 SCC 754.
The facts from case-in-hand are that, there is triable issue relating
to limitation and plaintiff has violated Order 11 Rule 1 of the
Code of Civil Procedure. Hence, 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 :
27) There are triable issues relating to limitation and also
maintainability of the Suit. Therefore, plaintiff cannot be granted
relief of Summary Judgment. Therefore, it would be in the
interest of both parties that, Suit should be subjected to framing
of issues and evidence. Therefore, the Points are so answered and
Summary Judgment is disposed off, by following Order :
ORDER
1. Summary Judgment No. 100017 / 2022, is rejected.
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2. Proceeding of Summary Judgment No. 100017 / 2022,
is closed.
3. Order pronounced in Open Court.
4. Parties be informed about their right to challenge this
Order and limitation for same.
5. Record of Summary Judgment shall be part of
Commercial Suit No. 100191 / 2019.
6. Suit is of 2019. Written Statement is filed on
13.02.2020. Till date, parties have not filed admission
and denial. Hence, Issues are being framed. Parties to
comply Order relating to Case Management Hearing.
Mumbai
Dated : 09.07.2024 (Vijay S. Hingne)
Additional District Judge,
Court Room No.31 - Commercial Court,
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
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