Full Text
ORDINARY ORIGINAL CIVIL JURISDICTION
SUMMONS FOR
JUDGMENT
IN
SUMMARY SUIT NO. 7 OF 2021
Oriental Aromatics Limited a company incorporated under the provisions of the Companies
Act, 1956 and having its registered office at Jehangir Building, 2nd
Floor, 133, M. G. Road, Fort,Mumbai-400 001 ...Plaintiff
Adult Indian Inhabitant, carrying on
Business in the firm name and style of
M/s Raj Industries at the sole proprietor thereof and having her office at
Flat No. 9, Mauli Apartment, Ghatpuri Naka, Khamgaon, Buldhana-444303, Maharashtra …Defendant
Mr. Kunal Mehta with Ms. Jinelle Gogri, Ms. Shreya Bhagnani i/b
Negandhi Shah and Himayanullah for Plaintiff.
Mr. Paresh Thakar for Defendant.
1. The Plaintiff has filed the above suit for recovery of Rs. 1,68,80,866/- from the Defendant, comprising of Rs. 1,27,93,674/being the principal amount along with interest at the rate of 15% per annum from the due date of each of the invoices raised by the Plaintiff in respect of the goods sold, supplied and delivered by the Plaintiff to the Defendant along with the delivery challans till the date of filing of the suit and thereafter, further interest on the principal sum at the same rate till payment and/or realisation and costs of the suit.
2. After the Defendant had entered appearance, Plaintiff had taken out Summons for Judgment in the above amount along with interest and costs. In the affidavit in support of the Summons for Judgment dated 11th February, 2022, the Plaintiff has submitted that after the filing of the suit, the Defendant has paid to the Plaintiff a sum of Rs. 2,10,000/- and accordingly, the Defendant is entitled to receive credit in the said sum of Rs. 2,10,000/- against its decretal dues as claimed in the Plaint. The reply has been filed by the Defendant on 5th March,
2022. Thereafter, attempts were made to settle the matter, however, upon failure of the same, this Summons for Judgment has been heard.
3. Mr. Mehta, learned Counsel appears for the Plaintiff and submits that affidavit in rejoinder on behalf of the Plaintiff has also been filed on 4th January, 2023.
4. The brief facts are that in the year 2019, pursuant to oral purchase orders that were placed by the Defendant on the Plaintiff from time to time for supply of diverse quantities and specifications of Isoborneol Powder and Camphor GF, the Plaintiff from time to time sold, supplied and delivered to the Defendant the said goods and raised invoices in respect whereof in an aggregate sum of Rs. 1,38,59,631/- as per the following details:- Sr. No. Invoice No. Date of the Invoice Due Date of the Invoice Amount of the Invoice (Rs.)
1. HO/INV/ 1920/00146 23.07.2019 21.09.2019 26,19,600/- 2 CBJ/1920/01676 25.07.2019 23.09.2019 11,28,375/- 3 CBJ/1920/01721 27.07.2019 25.09.2019 48,72,456/- 4 CBJ/1920/02148 23.08.2019 22.10.2019 26,19,600/- 5 CBJ/1920/02291 31.08.2019 30.10.2019 26,19,600/- Rs.1,38,59,631/-
5. It is the case of the Plaintiff that the said goods were duly received by the Defendant without any protest or demur and that at no point of time the Defendant raised any dispute as to the quantity or the quality of the said goods. The Plaintiff has also annexed the delivery challans in respect of the subject deliveries to the Plaint. It is submitted that each of the aforementioned invoices were as per their terms, due for payment in 60 days from the date of respective invoices. However, it is the Plaintiff’s case that none of the said invoices were paid on the due date. Even reminders to the Defendant were of no avail. After repeated requests during the period from February, 2020 to June, 2020, the Defendant made part payments to the Plaintiff aggregating to Rs.
10.50 lakhs. That earlier, the Defendant had also paid to the Plaintiff a sum of Rs. 25,545/- for which credit had remained to be given and after giving credit to the Defendant for all the payments made by the Defendant to the Plaintiff from time to time aggregating to Rs. 10,75,545/-, a principal sum of Rs. 1,27,84,086/- remained outstanding.
6. The Plaintiff was also required to pay on behalf of the Defendant an amount of Rs. 9,588/- into the government treasury, being the Tax Collected at Source. The Plaintiff accordingly, raised two debit notes in respect of the said amount, raising the principal to a sum of Rs. 1,27,93,674/-.
7. That since despite repeated requests and the Defendant’s repeated assurances, the Defendant failed to pay the outstanding dues, the Plaintiff through its Advocates issued a Demand Notice dated 12th May, 2021 calling upon the Defendant to make payments of the balance principal sum of outstanding dues along with interest at the rate of 24 % per annum within 15 days, failing which the Plaintiff would initiate appropriate legal proceedings against the Defendant to recover the outstanding dues. The same was replied to by the Defendant by Advocate’s letter dated 28th May, 2021. In response to the same, the Plaintiff’s Advocate by letter dated 29th June, 2021, once again called upon the Defendant to make payment of outstanding dues within 7 days.
8. By email dated 20th July, 2021, addressed to the Plaintiff, one Mr. Nitin Bhatiya, brother-in-law of the Defendant, admitted the outstanding amount of Rs. 1,27,93,674/- and assured the Plaintiff that they were in the process of arranging the payment in a partial way and in 5-6 months they would clear the balance payment, also apologizing for the delay and thanking the Plaintiff for support. That in addition to the aforementioned email, the Defendant by its Advocate’s letter dated 28th July, 2021 informed the Advocates for the Plaintiff that the Defendant had put up for sale a plot of land admeasuring about 6000 sq. ft situated at MIDC, Nagpur together with the construction thereon and the sale transaction was expected to be finalized within a period of one month from the date of the said letter. It was further stated in the said letter that the Defendant would be receiving an amount of Rs. 50- 60 lakhs from the said sale and that the Defendant was intending to pay the entire sale proceeds to the satisfaction of the Plaintiff’s outstanding dues. It is submitted that despite the said assurance the Defendant has failed and neglected to pay the Plaintiff outstanding dues and therefore, the suit under Order 37 of the Code of Civil Procedure, 1908 (“CPC”) has been filed for recovery thereof under a written contract between the Plaintiff and the Defendant as evidenced by the invoices raised by the Plaintiff on the Defendant along with the delivery challans under which the goods were supplied by the Plaintiff to the Defendant.
9. Mr. Mehta, learned Counsel for the Plaintiff would submit that the Defendant has admitted the liability to the Plaintiff vide communication dated 28th May, 2021 as well as dated 20th July, 2021 and 28th July, 2021. That on 19th January, 2022, during the pendency of the suit, the Defendant has paid to the Plaintiff a sum of Rs. 2,10,000/through Mr. Nitin Bhatiya, who is the brother-in-law of the Defendant. However, in the reply that has been filed on 25th March, 2022, it is for the first time that a dispute is sought to be raised that the goods were of inferior quality and that the orders were not placed by the Defendant but her brother-in-law Mr. Nitin Bhatiya, although no explanation has been provided as to why the part payments of Rs. 10.50 lakhs was paid by the Defendant to the Plaintiff. Learned Counsel would submit that in the reply to the Plaintiff’s Advocate’s notice, the Defendant’s Advocate, has, in paragraph 5 clearly stated that the husband of Vaishali Bhatiya viz. Mr. Nitin Bhatiya who is in fact operating both the units, doing business in the name of J. J. Industry and doing all the regular business activities of both proprietary concerns himself and participating in the daily business activities of both the units to run them successfully and therefore, this kind of defence cannot be raised. Learned Counsel also refers to the said reply and submits that it has been clearly admitted in paragraph 6 that as soon as the lock down due to Covid-19 pandemic opens up, the Defendant will recover her pending debts from the market and in turn would clear the outstanding amount of the Plaintiff. Mr. Mehta, would therefore, submit that in the face of clear admission, the defence sought to be raised by the Defendant has no merit. No genuine triable issue has been raised and this Court give the judgment in favour of the Plaintiff. Mr. Mehta, has relied upon the decisions in the case of Jatin Koticha Vs. VFC Industries Pvt.Ltd.[1] as well as in the case of IDBI Trusteeship Services Ltd Vs. Hubtown Ltd.[2] in support of
10. On the other hand, Mr. Thakar, learned Counsel for the Defendant would submit that the suit is only based on invoices and there is no written agreement. Also there is nothing in the statement of accounts confirming the dues to the Plaintiff. Mr. Thakar, would submit that although the receipt of the goods is not disputed, however, the rate is disputed. Drawing the attention of this Court to paragraph 2 of the reply to the Advocate’s notice, Mr. Thakar, would submit that during the supply of the said material, the rate of the products was reduced to considerably than the normal rate due to price fluctuation in the market. And on that count, the real pricing of the said materials would have been much lesser than the amount claimed by the Plaintiff. Referring to the affidavit in reply, learned Counsel would submit that the material supplied was of inferior quality and that the Defendant had never placed any order of purchase of materials to the Plaintiff as the same were placed by Mr. Nitin Bhatiya and not by the Plaintiff. That, therefore, the transactions are not binding on the Defendant and that all the pending debts were already cleared by Mr. Nitin Bhatiya and his sole proprietary concern J. J. Industry. Learned Counsel has sought to rely upon the decision of this Court in the case of Shree Pushkar Chemicals and Fertilizers Ltd., Mumbai Vs. Huntsman (International)India Pvt. Ltd.,Mumbai[3] and in particular to paragraph 16.[2] thereof to submit that the Plaintiff is not entitled to seek or receive any payments from the Defendant as fraud has been perpetrated by the Plaintiff on the Defendant and also that the Defendant is a third party not involved in the transaction.
11. I have heard the learned Counsel for the parties and considered the rival contentions.
12. In the case of Jatin Koticha Vs. VFC Industries Pvt.Ltd.(supra), in a summary suit for recovery of sum of money with interest for goods sold and delivered along with invoices, receipt whereof was not disputed by the Defendant, this Court has held that the invoices must be treated as written contract and suit based on invoices is a suit based on a written contract. That it is not the requirement of the law that it should be a written contract signed by both the parties; what is necessary is that the suit should be based on a written contract. That can be in the form of invoices which were raised on the Defendant along with delivery of the goods. 3 2018 (1) ABR 801
13. It is also settled law as elucidated by the Hon’ble Supreme Court in the case of IDBI Trusteeship Services Ltd Vs. Hubtown Ltd.(supra). Also that if the Defendant has no substantial defence and / or raises no genuine triable issues or the Court finds such defence is frivolous or vexatious, then leave to defend the suit shall be refused and the Plaintiff shall be entitled to judgment forthwith.
14. In the facts of this case, as noted above, it is not in dispute the goods viz. Isoborneol Powder and Camphor GF has been sold and delivered to the Defendant. The delivery challans in respect of the said deliveries as annexed to the Plaint are also not in dispute. The Invoices dated 23rd July, 2019, 25th July, 2019, 27th July, 2019, 23rd August, 2019 and 31st August, 2019 and the corresponding delivery challans have also been received and accepted by the Defendant. The Defendant has made part payment of Rs. 25,545/- in respect of the invoice dated 25th July, 2019 and also of Rs. 10.50 lakhs in respect of invoice dated 23rd July, 2019. In the reply dated 28th May, 2021 at Exhibit E to the Plaint, to the Plaintiff’s Advocate’s Notice, it has been admitted that the Defendant has paid an amount of Rs. 10,50,000/- during February, 2020 to June 2020 to the Plaintiff and in the said communication it has also been stated that the Defendant would clear the outstanding of the Plaintiff and would need some time, looking at the economic condition. By the said communication, neither any dispute as to the delivery of the material nor any grievance as to the quality thereof has been raised except to state that due to price fluctuation in the market, the rate of products was reduced to considerably lower than normal rate to suggest that the goods were available cheaper than at the rate sold. In my view, this cannot be said to be a substantial defence raising any genuine triable issue. It appears to be a frivolous defence being raised for the sake of raising defence to delay the payment of outstanding dues to the Plaintiff. In the affidavit in reply to the Summons for Judgment, an issue with respect to the quality of all the material received is sought to be raised for the first time. Again this appears to be completely frivolous as the same is bereft of any specific details or particulars. It is not in dispute that the goods have been received and the invoices have been raised by the Plaintiff. No objection was raised as to the quality of the goods at the time of receipt or any time thereafter, except in the affidavit in reply. If no objection has been raised at that time, just to delay the payment to the Plaintiff, the Defendant cannot be heard to say that at the time of the supply of the said material, the rate of the products was reduced considerably than the normal rate due to the price fluctuation and therefore, seek to dispute the rate and the amount claimed by the Plaintiff. There is neither any writing to such an effect nor the Defendant has been able to demonstrate that the Plaintiff had agreed to claim on the basis of the market rate at the time of supply. Clearly it appears to be a ploy to defeat the claim of the Plaintiff.
15. Defendant has also sought to distance herself from the entire transaction by submitting in the reply that the orders were not placed by the Defendant but by her brother-in-law Mr. Nitin Bhatiya. True that Mr. Nitin Bhatiya has made admission confirming the outstanding of Rs. 1,26,93,674/- with an assurance that they would arrange payment in partial way and in 5-6 months clear the balance payment, apologizing for the delay and thanking for support, however, in the reply dated 28th May, 2021 to the Plaintiff’s Advocate’s Notice in paragraph 5, it has been submitted that the Defendant as well as her sister-in-law, Smt. Vaishali Nitin Bhatiya (wife of Mr. Nitin Bhatiya), who is operating proprietary concern named J. J. Industry from Nagpur, is a regular and valuable customer of the Plaintiff; that the husband of Mrs. Vaishali Bhatiya namely Mr. Nitin Bhatiya, is in fact operating both the units and doing all the regular business activities of both the proprietary concerns; that he himself is participating in daily business activities of both units to run them successfully. Mr. Nitin Bhatiya being related to and integrally involved in the business of the Defendant, the Defendant cannot now say that she has nothing to do with the transactions. The payment of Rs. 10,50,000/- as admittedly noted above, has been made by the Defendant to the Plaintiff. Therefore, to now raise a frivolous defence that the orders were placed by Mr. Nitin Bhatiya and not by the Defendant appears to be an afterthought intended to somehow or the other set up a defence to the Summons for Judgment. In my view, the Defendant is taking contradictory and self-defeating stands to somehow or the other delay and / a defeat the payment of Plaintiff’s outstanding dues. The goods have been received, the delivery challans along with the goods are not disputed, invoices have also been received by the Defendant. In view of the decision of this Court in the case of Jatin Koticha Vs. VFC Industries Pvt.Ltd.(supra),the same must be treated as written contract and the present suit based on these invoices is a suit based on written contract. There are at least three admissions of liability. Firstly, of the payment of Rs. 10,50,000/- by the Defendant to the Plaintiff against invoice dated 23rd July, 2019, of Rs. 25,545/- of invoice dated 25th July, 2019, paragraphs 3 and 6 of the Defendant’s Advocate’s letter dated 28th May, 2021 admitting respectively to the part payment and to the liability and seeking time on account of economic situation and lock down, email dated 28th July, 2021 by Mr. Nitin Bhatiya, who is a brother-in-law of the Defendant on behalf of the Defendant admitting the liability and promising to clear the outstanding. This being the admitted fact situation, the Defendant cannot wriggle out of her obligation to pay the Plaintiff’s outstanding dues. Therefore, this is a case of clear admission of liability by the Defendant disentitling the Defendant any leave to defend the suit. It is also to be noted that on 19th January, 2022 during the pendency of the suit, Mr. Nitin Bhatiya had made a payment of Rs. 2,10,000/- on behalf of the Defendant to the Plaintiff as can be seen from the affidavit in support of the Summons for Judgment as well as from the Affidavit in rejoinder.
16. The submissions made by the learned Counsel for the Defendant therefore cannot be countenanced. Reliance by the learned Counsel on the decision of this Court in the case of Shree Pushkar Chemicals and Fertilizers Ltd., Mumbai Vs. Huntsman (International)India Pvt. Ltd.,Mumbai (supra) is completely misplaced in as much as in that case the Court had held that the Plaintiff had perpetrated fraud on the Defendant, which is neither pleaded in the reply nor any details whereof have been furnished. So far as the Defendant being the third party or not being privy to the transaction is concerned, from the facts set out above, it is quite clear that the Defendant is liable to pay the outstanding dues to the Plaintiff. Therefore, said decision does not in any manner assist the case of the Defendant.
17. Having regard to the above discussion, in my view, the Defendant has raised no substantial defence or a genuine triable issue. All the issues sought to be raised are baseless and frivolous. Being mindful that the object of the provisions of Order 37 of the CPC to assist expeditious disposal of commercial causes is not defeated the Defendant is not entitled to leave to defend and the Plaintiff in my view is entitled to judgment forthwith.
18. Accordingly, the Summons for Judgment is made absolute and the suit is decreed as prayed for, subject to a credit of Rs. 2,10,000/paid by Mr. Nitin Bhatiya on 19th January, 2022 on behalf of the Defendant. No order as to costs. (ABHAY AHUJA, J.)