IN THE BOMBAY CITY CIVIL COURT
AT GREATER BOMBAY
SUMMARY SUIT No. 100290 OF 2022
Under Order XXXVII Rule 2 of C.P.C.
In the matter of:
Mr. Sanjeev Agarwal
Proprietor of M/s. Om Steel & Forgings …Plaintiff
V/s
Mr. Mukesh Chandulal Desai
Proprietor of M/s. Vaibhav Enterprises …Defendant
APPLICATION OF DEFENDANT UNDER ORDER XXXVII,
RULE 3(5), READ WITH SECTION 151 OF CPC FOR LEAVE
TO DEFEND THE SUIT.
Most Respectfully Showeth:
1. That the applicant/defendant has been served with
Summons for Judgement in the above suit on 13th
September, 2022.
2. That the applicant/defendant crave leave to defend the suit
on the grounds and reasons stated in the accompanying
affidavit.
3. It is therefore respectfully prayed, that this Hon’ble Court
may be pleased to:
i) Grant an unconditional leave to defend the above
suit for the reasons set forth in the accompanying
affidavit, and
ii) Pass any such order or further order deem fit and
proper in the facts and circumstances of the case.
Mumbai DEFENDANT
Date: 13th September, 2022 (Mukesh Chandulal Desai)
Through,
Adv. Nitin K. Chaudhari
(Advocate for Defendant)
Advocate Code: I23959
IN THE BOMBAY CITY CIVIL COURT
AT GREATER BOMBAY
SUMMARY SUIT No. 100290 OF 2022
Under Order XXXVII Rule 2 of C.P.C.
In the matter of:
Mr. Sanjeev Agarwal
Proprietor of M/s. Om Steel & Forgings …Plaintiff
V/s
Mr. Mukesh Chandulal Desai
Proprietor of M/s. Vaibhav Enterprises …Defendant
AFFIDAVIT
I, Mukesh Chandulal Desai, Proprietor of Vaibhav Enterprises,
Applicant/Defendant above named aged about 65 years, S/o
Chandulal Desai, R/o C/17, Keshav Nidhi C.H.S., Mulji Nagar
No. 2, Saibaba Nagar, Borivali (W), Mumbai-400092, do hereby
solemnly affirm and declare as under: –
1. That I have filed an application for leave to defend the
above summary suit. That I am the defendant in the matter
and hence competent to swear this affidavit.
2. That the defendant has very good Prima facie defence and
triable issues existing therefrom.
3. That the invoice dated 29/01/2018 raised by the plaintiff is
for the amount of Rs. 2, 82,964/-. It is pertinent and very
important to note that the defendant has made a first part
payment of Rs. 50,000/- on 18/07/2018. The last payment
made by the defendant against this invoice is of Rs.
22,897/- on 13/10/2018. That means the plaintiff
absolutely agrees that Rs. 1, 92,897/- are paid by defendant
with bonafide intentions within permissible extended
credit period of around 6/7 months.
4. The question and demand raised by the plaintiff is for the
alleged balance unpaid principal amount of Rs. 48,014/-.
5. The defendant strongly states that the amount of Rs.
48,014/- has been paid to the plaintiff through the broker
Mr. Manhar M. Rawal. After deducting this amount of Rs.
48,014/- from the invoice amount the balance amount of
Rs. 22,897/- was paid by the defendant to the plaintiff as
the full and final settlement of the invoice.
6. That the initial payments made by the defendant to the
plaintiff are round figures of Rs. 50,000/- and Rs. 20,000/-
whereas the last payment made by the defendant to the
plaintiff is a very odd figure of Rs. 22,897/-. This figure
must have been derived as a balance amount after
deducting the earlier payments from the invoice. The
payment pattern of the defendant to the plaintiff is ample
proof that the defendant has made full and final payment to
the plaintiff.
7. That the suit is bad for non-joinder of parties. Mr. Manhar
M. Rawal alias Manubhai [R/o. B wing, Ground Floor,
Sai Darshan Apartment, Near Kids Corner, Sainath Nagar,
Tulinj Road, Nalaspoara (E), Dist. Palghar, PIN-401209,
Mobile No. 9322348947] a broker who brokered the
transaction between the plaintiff and defendant should
have been made a party to this suit as Mr. Manhar M.
Rawal was the responsible person to deliver the goods as
well as to collect the payment on behalf of the plaintiff.
Mr. Manhar M. Rawal is the broker in the Kumbharwada
steel market. It is customary style of working of this steel
market to work through such brokers. Most of the time the
sellers and purchasers of steel products do not know each
other. The sale is facilitated through the broker like Mr.
Manhar M. Rawal. This steel market works on trust and
these brokers are the trustee of this trust.
8. That the defendant is not at all liable to pay the alleged
balance principal amount or 24% interest; as the total
payment of the invoice amount has been made to the
plaintiff. The claim of the plaintiff is untenable under
Order 37 and is liable to be dismissed. The plaintiff has no
cause of action against the defendant and the suit is liable
to be dismissed.
9. That the defence stated herein above discloses a very good
defence and raises triable issues which cannot be
discharged without getting proper hearing and opportunity
to the defendant such as filing the written statement etc.
10. That the deponent reserves his right to make amendment
in the leave to defend affidavit again with the permission
of this Hon'ble Court whenever required.
11.That the contents mentioned hereinabove have been
drafted by my advocate upon my instructions which are
true and correct to my belief and knowledge.
DEPONENT
VERIFICATION
Verified at Mumbai on this 13 th Day of September, 2022 that the
contents of paragraphs 1 to 10 of my above affidavit are true and
correct to my knowledge. No part of it is false and nothing has
been concealed therefrom.
DEPONENT
Identified by me,
Nitin K. Chaudhari
(Advocate Mumbai High Court)
