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2012 DIGILAW 1602 (BOM)

Hitesh Lakhamshi Shah v. Pradip Chinubhai Shah

2012-08-24

R.D.DHANUKA

body2012
Judgment : By this Summons for Judgment, the Plaintiff seeks that Judgment be entered in the suit against the Defendants and they be ordered and decreed to pay to the Plaintiff a sum of Rs.1,92,113/-togetherwith further interest on the principal amount of Rs.1,60,000/-. 2. The suit is based on an invoice, delivery challan and dishonoured cheque. According to the Plaintiff, pursuant to the order placed by the Defendants, the Plaintiff had sold, supplied and delivered the Duplex Coated Board Sheets worth Rs.1,60,000/-. The Defendants accepted the delivery of the goods under invoice bearing No. 2113 dated 23rd September, 2008 and signed delivery challan. It is the case of the Plaintiff that the Defendants issued a cheque of Rs.10,000/-towards part payment in respect of the said goods. Upon deposit of the cheque of Rs. 10,000/-, the same was returned with the remark “Insufficient Fund”. The Plaintiff thereafter addressed a letter calling upon the Defendants to pay the amount as per Invoice No. 2113 followed by legal notice dated 23rd April, 2009. In response to the said legal notice, the Defendants through their advocate's reply dated 13th May, 2009 denied the claim. It is the contention of the Defendants that five cheques were issued by the Defendant No.1 which were dated 5th September, 2003, 23rd September, 2003, 23rd October, 2003, 23rd November, 2003 and 23rd December, 2003 and bearing Nos. 095031 to 095035 in respect of the earlier transaction between the parties which took place in the month of September 2003. Out of the said five cheques, cheque Nos. 095031 and 095032 were encahsed. According to the Defendants, the remaining three cheques were not returned by the Plaintiff though dispute in respect of the earlier transaction came to be settled between the parties. The Plaintiff by his advocate's letter dated 2nd June, 2009 reiterated its demand but not disputed that cheques dated 5th September, 2009 and 23rd September, 2003 were encashed in 2003 in respect of the transaction held in September 2003. 3. The Defendants have filed affidavit in reply. 4. The Learned Counsel appearing for the Plaintiff submits that the Defendants have taken delivery of the goods by Invoice dated 23rd September, 2008. The Defendant No.2 has issued a cheque of Rs.10,000/-towards part payment in respect of the said invoice of Rs.1,60,000/-. The cheque is bounced with the remark “Fund Insufficient”. The Plaintiff, therefore, seeks decree against the Defendants. 5. The Learned Counsel appearing for the Plaintiff submits that the Defendants have taken delivery of the goods by Invoice dated 23rd September, 2008. The Defendant No.2 has issued a cheque of Rs.10,000/-towards part payment in respect of the said invoice of Rs.1,60,000/-. The cheque is bounced with the remark “Fund Insufficient”. The Plaintiff, therefore, seeks decree against the Defendants. 5. The Learned Counsel appearing for the Defendants on the other hand submits that the Defendants have disputed transaction covered under Invoice dated 23rd September, 2008. The Defendants have also disputed the signature on the delivery challan dated 23rd September, 2008. It is the case of the Defendants that a cheque of Rs.10,000/-annexed at Ex.“C” to the plaint was retained by the Plaintiff in the year 2003 and not returned though the dispute in respect of the earlier transaction was settled. It is the case of the Defendants that the Plaintiff has interpolated the year on one of such cheuqe from 2003 to 2008 and has deposited the same with a view to make frivolous claim against the Defendants. 6. The Learned Counsel appearing for the Plaintiff admitted that the cheque bearing no. 095031 dated 5th September, 2003 and 095032 dated 23rd September, 2003 pertains to the transaction between the same parties held in the month of September 2003 and had been encashed at the relevant time. It is however case of the Plaintiff' that there was fire in the office of the Plaintiff and all the documents and files were destroyed and therefore there is no question of disputed cheques being mis-utilised by the Plaintiff. 7. In my opinion, having regard to the admission on the part of the Plaintiff that cheques bearing Nos. 095031 and 095032 were issued by the Defendant in 2003 and were appropriated towards transaction held in September, 2003 in the year 2003 itself, it is not possible to accept the plea of the plaintiff that the cheque no. 095033 alleged to be dated 23rd October, 2008 which has consecutive number was given as a part payment in respect of the alleged transaction of 2008. It is also clear that if the Defendants would have given such cheque of Rs.10,000/-in the month of September, 2008, the Plaintiff would have deposited the same much earlier prior to April 2009. The alleged invoice relied upon by the Plaintiff is issued only against the 1st Defendant. It is also clear that if the Defendants would have given such cheque of Rs.10,000/-in the month of September, 2008, the Plaintiff would have deposited the same much earlier prior to April 2009. The alleged invoice relied upon by the Plaintiff is issued only against the 1st Defendant. It is not signed by any of the Defendants. Even the delivery challan which is relied upon by the Plaintiff is disputed by the Defendants. In my opinion, the Defendants have made out triable issues which can be decided only after at the time of trial of the suit. 8. I, therefore, pass the following order:- (a) The Defendants are granted unconditional leave to defend the suit. (b) The Defendants are directed to file written statement within a period of eight weeks from the date of this order. (c) Suit is transferred to the list of commercial causes. (d) Office is directed to place the matter on Board for framing issues after pleadings are completed. (e) Summons for Judgment is accordingly disposed of. (f) There shall be no order as to cost.