2012(7) ALL MR 313
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Shree Ganesh Chemicals Vs. M/S. Virdev Intermediates Pvt. Ltd.
Summons for Judgment No. 483 of 2010,Summary Suit No. 1004 of 2009
10th August, 2012
Petitioner Counsel: Mr. KALPESH NANSI
Respondent Counsel: Mr. NITIN MULYE
(A) Civil P.C. (1908), O.37 R.2 - Limitation Act (1963), S.4 - Summary suit - Plea of limitation - Cause of action started after 29th March, 2006 i.e. on due date when defendant failed to pay invoice amount - On day of expiry of limitation period i.e. on 29th March 2009, court was closed - Therefore, suit filed on 30th March, 2009, not barred by limitation. (Para 4)
(B) Civil P.C. (1908), Ss.16, 17, 20, 120 - Letters Patent (Bombay), Cl.12 - Summary suit - Jurisdiction of High Court - Goods supplied to defendant from Gujarat - No part of cause of action arose within jurisdiction of Bombay High Court - However, administrative office of defendant was at Mumbai - Invoice issued by plaintiff showing disputes to be subjected to Mumbai jurisdiction - Hence, Bombay High Court would have jurisdiction to entertain the suit - Moreso, because in view of S.120 CPC provisions under Ss.16, 17 and 20 CPC would not apply to High Court in exercise of its original jurisdiction. (Paras 5, 6)
(C) Civil P.C. (1908), O.37 R.2 - Summary suit - Notice of demand - Issuance of notice of demand before filing summary suit, not necessary. (Para 8)
(D) Civil P.C. (1908), O.37 R.2 - Summary suit - Alleged inconsistency in claim made by plaintiff by claiming interest at 24% p.a. while invoice showing the same at 28% p.a. - Held, a party entitled to larger relief, can apply for smaller relief - Plea of inconsistency held, totally frivolous and moonshine. (Para 12)
JUDGMENT
JUDGMENT :- By this summons for judgment, plaintiff prays that the judgment be entered in this suit against the defendant for Rs.6,95,903/-. The Plaintiff has filed a suit on the basis of invoice dated 28th January, 2006 (Exh. A to the plaint). According to the plaintiff, pursuant to the purchase order issued by the defendant, the Plaintiff supplied diverse quantities of goods to the defendant at its Surat address. Defendant received the said goods on 29th January 2006 and did not raise any objection as to the rate, quality or quantity of the said goods including bills/invoices. According to plaintiff, defendant was liable to make payment at Mumbai. Plaintiff issued invoice on 28th January 2006. The due date for payment, according to the said invoice was 29th March, 2006.
2. On 25th March, 2009 plaintiff called upon defendant to make payment of Rs.4,04,595/- with interest of Rs.4,36,962/-. The defendant through its advocate replied to the said notice dated 25th March, 2009 and vaguely denied the amounts demanded by the plaintiff.
3. The defendant filed affidavit in reply. The learned counsel for the defendant submits that the notice is dated 28th January 2006 and the suit is lodged on 30th March, 2009. The suit is, therefore, barred by law of limitation. On the other hand, the learned counsel for the plaintiff submits the due date for making payment under the said invoice was 29th March, 2006. On 28th March, 2009 it was non working Saturday and 29th March 2009 fell on Sunday. The suit is lodged on 30th March, 2009. The learned counsel placed reliance upon section 4 of the Limitation Act which reads thus :
"4. Expiry of prescribed period when court is closed. Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court re- opens. Explanation.- A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day."
4. In my opinion, cause of action would start after 29th March, 2006 i.e. on due date when defendant failed to pay. The suit is lodged on 30th March, 2009. Admittedly on 28th March and 29th March, 2009 the Court was closed. Therefore, there is no substance in this defence raised by the defendant that the suit is barred by law of limitation. Suit is filed within time.
5. The learned counsel for the defendant next submitted that this Court has no territorial jurisdiction to entertain, try and dispose of the suit. It is submitted that on the purchase order dated 28th January 2006, issued by the defendant, it is provided that the said order was subject to Surat jurisdiction. It is submitted that the goods were admittedly supplied from Gujarat by the plaintiff to defendant. No part of cause of action has arisen within territorial jurisdiction of this Court. On the other hand, the learned counsel for the plaintiff invited my attention to the invoice dated 28th January 2006 issued by the plaintiff. On the said invoice it is provided that it was subject to Mumbai jurisdiction. The learned counsel invited my attention to the purchase order issued by the defendant which provides the Bombay Office address of the defendant at 108/109, Dalamal Chambers, New Marine Lines, Bombay 400 020. It is also provided on the said purchase order that the bill copy was to be routed through Bombay Office. The learned counsel also invited my attention to the affidavit in reply admitting that the administrative office of the defendant is situated at Mumbai.
6. Section 120 of Code of Civil Procedure, 1908 provides that section 16, 17 and 20 shall not apply to the High Court in the exercise of its original jurisdiction.
7. Admittedly the administrative office of the defendant is at Mumbai and on invoice issued by the plaintiff, it is provided that the dispute was subject to Mumbai jurisdiction and also considering clause 12 of the Letters Patent, in my opinion, there is no substance in the defence raised by the defendant that this Court has no territorial jurisdiction to entertain this suit.
8. The learned counsel for the defendant next submitted that the Notice of demand was issued by the plaintiff just three days ago before filing of the suit. In my opinion, there is no substance in this defence raised by the defendant. It is not necessary to issue any notice of demand before filing of the suit.
9. The learned counsel for the defendant next submitted that Mr. Jayantibhai Sangani was not authorized broker of the defendant. The learned counsel for the plaintiff invited my attention to the purchase order issued by the defendant on which name of Jayantibhai is mentioned as broker. I, therefore, find no substance in this defence of the defendant.
10. The learned counsel for the defendant next submitted that there was excess payment made by the defendant to the plaintiff. The learned counsel placed reliance upon the statement at Exh. C to the affidavit in reply prepared by the defendant. The learned counsel for the plaintiff invited my attention to the said statement to demonstrate that all previous payments made by the defendant to the plaintiff was made bill to bill. There was no corresponding payment reflected in the said statement prepared by the defendant in respect of the invoice dated 28th January 2006 amounting to Rs.4,04,595/-.
11. In my opinion, the defendant have not produced any material on record to demonstrate that there was any excess payment made by the defendant to the plaintiff. Even in defendant's reply dated 18th May, 2009 annexed at Exh. E to the affidavit in reply, there is no plea of any alleged excess payment made to the plaintiff.
12. The next submission of the learned counsel for the defendant is that though in the invoice, rate of interest provided is 28% p.a., the plaintiff has claimed interest at 24% p.a. According to defendant, this shows an inconsistency in the claim made by the plaintiff. In my opinion, there is no substance in this defence of the defendant. A party who is entitled to larger relief, can apply for smaller relief. Plaintiff is entitled to claim lesser rate of interest than the interest agreed. I am therefore, of the opinion that there is no substance in this defence of the defendant.
13. Considering the record and submissions made by the learned counsel for both the parties, I am of the view that the defence raised by the defendant is totally frivolous and moonshine. The plaintiff is therefore, entitled to the reliefs claimed in the Summons for Judgment. It is, however, made clear that the plaintiff would be entitled to interest at the rate of 12% p.a. on the principal amount of Rs.4,04,595/- from the date of decree till payment. The suit is decreed accordingly. Refund of court fees as per rules.
14. The learned counsel for the defendant applies for stay of this order. The learned counsel for plaintiff strongly opposes grant of stay. Stay is refused.