Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.4855 OF 2019
(CNR NO.MHCC010132532019)
IN
S. C. SUIT NO. 5291 OF 2012
G. M. MILLS PVT. LTD., ]
Formerly known as M/s. Hartex ]
Exports Pvt. Ltd., a company ]
registered under the provision of ]
the Indian Companies Act, ]
Having its registered office at ]
Dhanasingh Compound, J.B. Nagar, ]
Andheri Kurla Road, ]
Mumbai400 059. ].. Plaintiff.
V/s.
J. DWARKADAS, ]
Partnership Firm, Carrying on ]
business at Jaydwar 19, ]
Champagali, Mumbai – 400 002. ]..Defendants
Advocate Ms. Anchal Jethani for the Defendant.
Advocate Ms. Viditu S. Bhalekar I/b Advocate Mr. Sameer R.
Bhalekar for the plaintiff.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 4th SEPTEMBER 2021
ORDER
The Notice of Motion is taken out by the dependent for
return of goods to the plaintiff. The suit is instituted by the plaintiff for
recovery of amount due to him the price of goods supplied by him to
the defendants. The disputed transactions have taken place in the year
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2009 onwards. The suit was instituted in the year 2012. The suit is
now at the stage of final arguments.
2. It is the case of defendants that plaintiff had supplied 100%
polyester goods which were not as per the catalogue and as per the
agreed terms between the plaintiff and defendants. Defendants have
played fraud upon the plaintiff by providing goods which are defective.
These goods are lying in the shop of the defendants as nobody wants to
buy defective goods. There are several correspondences exchanged
between the parties regarding these goods.
3. It is the case of defendants that they had clearly informed
plaintiff regarding the defective goods and the difference between
catalogue and the actual goods supplied. Defendants have further
stated that the building in which his shop is located has become old and
the repair work its going on. There is no other place to store these
goods. Defendants requested plaintiff various times to take back the
defective goods. However, plaintiff deliberately did not take back those
goods. Hence defendants have prayed for directions to the plaintiff to
take back the defective goods.
4. The Plaintiff has objected the motion on the ground that
the motion is filed by the defendants only with a view to prolong the
matter. The matter has been posted for final arguments and plaintiff
had submitted written submissions. Defendants have further stated that
the goods were supplied to the defendants as agreed between the
parties. Plaintiff supplied home furnishing fabrics for curtain to the
defendants as per the various purchase orders placed by the defendants
for a total amount of Rs. 3,281,016/–. The goods were accepted by the
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defendants without any grievance regarding quality and quantity of the
goods. The defendants, by their letter dated 22/12/2009 and
20/08/2010 alleged that the goods were of inferior quality and
requested plaintiff to take back the goods.
5. The plaintiff has further stated that the defendants have
made a payment of Rs. 1,150,000/– on 27/01/2010 and 20/04/2010
and 19/05/2010. This falsifies the case of defendants that the goods
were of inferior quality. Plaintiff has stated that he is unaware of fact
whether the goods are lying in the shop of defendants. The motion is
filed after 11 years and when the matter was posted for final
arguments. Plaintiff has stated that he is not concerned about the
storage problem of the defendants. Hence, the plaintiff has prayed for
dismissal of the motion.
6. I have heard both learned Advocates at length. I have gone
through the record of this Notice of Motion and the S.C. Suit No. 5291
of 2012.
7. Considering the Notice of Motion, reply and the record,
following points arise for my determination and my findings to them
are as stated below for the following reasons.
Sr.
No
POINTS FINDINGS
1 Whether the defendants are entitled for
directions to the plaintiff for taking back the
books lying in the shop of defendants?
In the
Negative
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2 What Order ? As per final order
R E A S O N S
AS TO POINT NO.1:
8. Admittedly, the transactions in dispute had taken place in
the year 2009. It appears from page No. 184 of the compilation that on
22/12/2009, the defendants informed plaintiff that the goods supplied
were of inferior quality then the samples/catalogues provided by the
plaintiff. It was further requested to take back the goods. Another later
at page 186 was issued by defendants to the plaintiff on 20/08/2010
requesting plaintiff to take back the goods. In the said letter liability of
defendants to pay Rs. 9,15,904/– to the plaintiff is accepted. It is also
stated that, if plaintiff fails to take back the goods, storage charges will
be levied. Similar letter is filed at page no. 190 which is dated
10/07/2012. The suit was instituted on 30/11/2012.
9. It appears from the written statement and the contentions
of defendants in this notice of motion that the cost of entire goods was
not paid by the defendants to the plaintiff because as per the case of
defendants the goods supplied by plaintiff to the defendants were of
inferior quality and was not as per the catalogue provided by the
plaintiff. It is the case of defendants that no customer wants to purchase
such a goods. Therefore, if this court at this stage of the proceeding,
directs the plaintiff to take back the goods as prayed by defendants,
then it would amount to accepting the case of defendants that the goods
provided by the plaintiff were of inferior quality. At this stage of the
proceeding, that is not permissible.
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10. If the prayer of defendants in the notice of motion is
granted without prejudice to the rights of both the parties, then it will
amount to grant relief in favour of defendants because they are having
no place to store the goods. It is important to note that defendants have
not filed any counterclaim or independent proceeding for such a relief
in last more than 8 years during pendency of this proceeding though
they were having knowledge of the facts. If the defendants are not
having place to store the goods, then that is their own problem. In my
considered opinion, defendants have to store the goods at their place till
the final decision of the suit.
11. In the circumstances above, I have come to the conclusion
that the defendants are not entitled to the reliefs claimed in the present
notice of motion. The suit is posted for the final arguments. Therefore,
it is necessary to complete the hearing of the same as early as possible.
The suit is more than eight years old. In view of the same, I proceed to
pass following order.
O R D E R
Notice of Motion No.4855 of 2019 is dismissed and
disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 04.09.2021 Gr.Mumbai.
Dictated on : 04.09.2021
Typed on : 04.09.2021
Signed on : 04.09.2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04.09.2021 AT 4.35 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
04/09/2021
Judgment/Order signed by P.O. on 04/09/2021
Judgment/Order uploaded on 04/09/2021
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