Judgment:
Sayed A.A., J.
1. The above summons for judgment is taken out by the plaintiff praying that a judgment be entered in the above summary suit against the defendants jointly and severally for Rs. 1,07,23,282/- together with interest @ 21% p.a. on the principal sum of Rs. 93,00,000/- from 18th December, 2007, till payment and realization. According to the plaintiff, the defendants have no defence and have entered an appearance to be filed only with a view to defeat and deny their claim.
2. The case of the plaintiff is that the defendant No. 1- firm had approached them to buy on High Seas basis 75,000 Kg. of Laxan Polycarbonate OQ1025/112 at an agreed price of Rs. 93 lacs exclusive of custom duty and other charges. The defendant No. 1 was to take direct delivery of the said goods on the basis of documents to be handed over by the plaintiff to the defendant No. 1 simultaneously upon defendant No. 1 handing over 75 days advance Letters of Credit (LC) payment to them which payment was agreed to be made by 19.3.2007. Accordingly, Purchase Order dated 28th December, 2006 was placed by the defendant No. 1 on the plaintiff confirming the sale and supply of the said goods and a High Seas Sale Agreement was executed between the plaintiff and defendant No. 1 on 28th December, 2006 on the terms and conditions mutually agreed to including plaintiff's standard terms and conditions for sale which were also made a part of the said Agreement and a copy of the standard terms and conditions was annexed to the said Agreement. The standard terms and conditions contained interest @ 21% per annum. Since the Agreement was prepared by them sometime on 19th December, 2006 on a computer initially, even though the print out of the Agreement was taken out subsequently on a stamp paper purchased on 26-12-2006, due to a clerical error, the date reflected below the signatures on behalf of the plaintiff on the Agreement was 19-12-2006. A commercial invoice was raised on the defendant No. 1, which was handed over to them on 28th December, 2006. The goods arrived in Bombay Port on 29th December, 2006.
3. According to the plaintiff, since the defendant No. 1 needed to urgently deliver the goods to the ultimate purchaser, one Computer skill Limited, with whom defendant No. 1 had negotiated to sell the goods and since the defendant No. 1 was pressing for immediate delivery, the plaintiff was induced to deliver the relevant documents including the original Agreement and Bill of Lading to the defendant No. 1 without the defendant No. 1 handing over advance LC's, on their promise and assurances that the LC would be delivered in few days and since the payment was actually due by 19-3-2007. The goods were ultimately cleared and collected by the ultimate purchaser Computer skill Ltd. under the Bill of Entry dated 22-1-07 after the defendant No. 1 endorsed the documents including the Bill of Lading in their favour. According to the plaintiff, the defendant No. 1 was obliged to open and hand over 75 days advance LC in favour of the plaintiff and was even otherwise liable to make payment by 19th March, 2007. However, the defendants failed and neglected to pay the said sum of Rs. 93 lacs inspite of reminders by letters and E-mails. Ultimately, the plaintiff addressed a legal notice on 14th September, 2007, through their Advocate and called upon the defendant No. 1 to pay them the outstanding amount including interest. The reply to the said notice was merely a preliminary reply which acknowledged the receipt of the legal notice. Hence, the present suit and summons for judgment.
4. The Summons for judgment has been opposed by the defendants by filing reply, seeking unconditional leave to defend the suit. The defendant No. 1 is a partnership firm of which the defendant Nos. 2 to 5 are the partners. The case of the defendant No. 1 is that there is no cause of action against the defendants and there is no transaction between plaintiff or its predecessor company and the defendants and that the claim of the plaintiff has been filed in collusion with one Mr. Gautam Broker, in order to defraud and make a false claim against the defendants. It is averred that the Purchase Order which is stated to be on letter-head of the defendant No. 1 is a computer generated document. The defendants in paragraph 4 of the reply, have averred that the person, who has signed as Authorized Signatory on the Agreement and Purchase Order is not the Authorized Signatory of the defendants nor in any way concerned with the defendants and that the defendants are not aware as to whose signature it is. According to the defendants they have not placed any order with the plaintiff and that the said Mr. Gautam Broker is not a partner nor an employee nor an agent or representative of the defendants. According to the defendants, they have not taken out any LC and no payments in respect of the alleged transaction has been made nor any amount of that transaction is received by the defendants. Defendants have averred that there is no business relationship between the plaintiff and defendants and that the suit and summons for judgment are false and bogus. The reply further avers that Mr. Gautam Broker, during the relevant time, was a Co-Director of the 1st defendant in a Company CSL Infotech Pvt. Ltd. According to the defendants, the plaintiff have perpetrated a fraud upon them in collusion with the said Mr. Gautam Broker. The defendants have further stated in paragraph 28 of their reply that at the foot of the agreement, the date is shown as 19th December, 2006, however, the stamp paper itself was purchased only on 26th December, 2006 and the agreement was attested by Notary Public on 22nd January, 2007, which clearly points to the fact that an attempt to defraud the defendants is made by the plaintiff by got up documents. It is further stated that no invoice was ever handed over to them and the alleged invoice is neither relied upon nor a copy of the same has been annexed to the plaint. It is further averred in the reply that the alleged signature on pages 2 and 3 on the Bill of Lading is not of any authorized representative of the defendants and that the endorsement is a fraud practised by the plaintiff in collusion with Computer skill Ltd. to whom the goods were transferred. The receipt of letters/E-mails are also denied by the defendants. The said Mr. Gautam Broker is the Director of M/s. Computerskill Ltd., and he had misused the free access to the defendant No. 1's office. In paragraph No. 33 of the reply it is stated that at the relevant time the main partner of the defendant No. 1 was out of Mumbai and the representative of the defendant No. 1, Mr. Pravin Changani approached the Solicitors of the defendants and requested them to send interim reply to enable the defendants to make inquiry about the alleged transaction between the plaintiff and the defendant No. 1, however, in view of the Diwali Vacation, the matter was forgotten thinking that the notice must have been issued through oversight or by mistake.
5. There is rejoinder filed to the reply, wherein copy of the invoice has been annexed at Exhibit 'A'. The rejoinder avers that the said Mr. Gautam Broker and one Mr. Anurag Gaur was representing defendant No. 1. alongwith Mr. Gunvantbhai, who is the defendant No. 2 and partner of defendant No. 1, in the meetings between the parties. There is also a Sur Rejoinder, Sur-Sur-Rejoinder and Sur-Sur-Sur rejoinder filed by the parties. In the Sur rejoinder it is stated by the defendants that there is no dispute that the goods were ultimately taken delivery of by the Company called Computerskill Ltd., which is run by Mr. Gautam Broker. It is averred that defendants have no concern with Mr. Anurag Gaur or Mr. Gautam Broker, in any of the affairs of the defendant No. 1 and/or in affairs of the defendants. The Sur rejoinder also avers that the defendants are dealing in buying and selling in shares, investments in mutual funds, revenue and finance, and therefore the question of defendants purchasing the alleged goods does not arise. In the Sur-Sur-rejoinder of the plaintiff, the Certificate of Importer-Exporter Code (IEC) in the name of the defendants is annexed to show that the defendants are infact in the business of import and export and it is false to suggest that the defendants are only selling shares and dealing in investments in mutual funds, revenue and finance. It is averred that though the name of the defendant No. 1 is not mentioned in the Visiting Card of Mr. Anurag Gaur, (copy of which is annexed to the Sur-Sur-rejoinder) the address on the visiting card of Mr. Anurag Gaur is the same as that of defendant No. 1 and, therefore, the stand of the plaintiff that Mr. Anurag Gaur is not concerned with or connected with the Group of Companies of defendant No. 1 is not correct. In the sur-sur-sur rejoinder, an affidavit of Mr. Anurag Gaur is annexed, wherein the said Mr. Anurag Gaur has stated that he is an employee of a company named, M/s. Narmada Colors Pvt. Ltd., which had their office at 4th floor, Sanghrajka House, Opera House, Mumbai. It is stated by him in the affidavit that he has not signed any papers that are exhibited nor has he ever represented defendant No. 1 or the defendants nor he had made any personal representation to the plaintiff in respect of import or High Seas Sale of any material whatsoever.
6. The learned Counsel for the plaintiff drew my attention to the Purchase Order, High Seas Sale Agreement and the Bill of Lading and submitted the said documents have been signed by the authorized signatory of the defendants and the rubber stamp of defendant No. 1 also appears on the said documents and the suit falls under Order 37 of C.P.C. He submitted that so far as the Agreement is concerned, though the Agreement was executed on 28th December, 2006, the draft copy of the said Agreement was prepared on the computer with the date of 19th December, 2006, which appears on the said Agreement and that it was because the said computerized draft was used, the date of 19th December, 2006 was inadvertently not corrected and, therefore, the date of 19th December, 2006 appears in the Agreement, though the stamp paper was purchased on 26th December, 2006 and Agreement executed on 28.12.2006. He pointed out that standard terms and conditions of sale which are annexed to the Agreement speak of 21% interest amount to be paid. The learned Counsel has pointed out the Bill of Lading is in the name of General Electric Plastics B.V. Post Box No. 117, 4600 AC Bargen Op. Zoom, Netherlands, who is shown as exporter and the consignee's name is shown as GE India Industrial Pvt. Ltd. the predecessor of the plaintiff. The learned Counsel drew my attention to the endorsement on the Bill of Lading and submitted that the endorsement of the defendant No. 1 as well as the endorsement of Computerskill Ltd. which was the ultimate buyer who has taken the delivery of the goods, appears on the Bill of Lading. The learned Counsel also pointed out the Bill of Entry for warehouse which shows the name of Computerskill Ltd. who has ultimately taken the delivery of the goods. The communications and E-mails were also pointed out which were addressed to the attention of one Mr. Gautam Broker and Shri Anurag Gaur. According to the learned Counsel for the plaintiff the said persons were representing the defendants and were closely linked with the defendants and the group of companies of the defendants.
7. Learned Counsel for the plaintiff further submitted that even the Advocate's notice dated 28th September, 2007 was not replied and merely a preliminary reply was sent and the reply did not deal with the allegations in the notice and therefore, it was obvious that the defendants were very much concerned with the transaction and have deemed to have admitted the transaction. The learned Counsel also pointed out the conduct of the defendants in stating on oath that they were not in the business of export/import and therefore there was no occasion for them to import any goods or enter into any such transaction since they were carrying on the business in shares and securities, mutual funds, finance and revenue was palpably false as is evident from the copy of the Importer-exporter code certificate in the name of defendant No. 1. The learned Counsel further stated that the visiting card of Mr. Anurag Gaur also clearly discloses that Mr. Anurag Gaur was closely associated with the defendant No. 1 since the address of the defendant No. 1- 431, Sanghrajka House, 4th Floor, Opera House, Mumbai, is the same address as appearing in the said visiting card. The learned Counsel further pointed out that Mr. Gautam Broker, who was representing the defendant No. 1 was admittedly a Director of one of the group companies of defendants and he was also closely associated with the defendants and was representative of the defendant No. 1. The learned Counsel submitted that from the documents on record and the conduct of the defendants, it is evident that there was a transaction between the plaintiff and the defendants and it was a fit case where the Summons for judgment should be made absolute and decree be passed and that no case has been made out by the defendants to grant leave to the defendants and if at all leave to defend is to be granted, the defendants should be directed to deposit entire amount in this Court.
8. The learned Counsel for the defendants on the other hand submitted that there were triable issues involved in the suit and it was a case where the defendants should be granted unconditional leave to defend. The learned Counsel pointed out that there was absolutely no transaction between the parties. He pointed out that the purported agreement is a got up document inasmuch as the Agreement itself mentions the date as 19th December, 2006, whereas the date of stamp paper is 26th December, 2006. The learned Counsel further submitted that the Agreement was not signed by any of the defendants. It is also not stated by the plaintiff as to whose signature appears on the Agreement and Purchase Order as the authorized signatory of defendant No. 1. The learned Counsel submitted that the defendants have not been handed over any original documents or copies of the documents i.e. Agreement or Invoice by the plaintiff. He submitted that the claim of the plaintiff is false and bogus. The learned Counsel submitted that though the purported Purchase Order has been annexed, the Invoice was not been annexed to the plaint nor has been relied upon in the plaint and for the first time the same has come out in the rejoinder. The learned Counsel submitted that no liability arises against the defendants. He submitted that there is no acknowledgment relied upon by the defendants in respect of the Invoice and no case is made out for grant of any relief to the plaintiff. The learned Counsel submitted that going by the case of the plaintiff, there was clearly variance in the contract in as much as the original documents for collecting the goods from Custom Authorities were to be handed over simultaneously upon furnishing of the Letters of Credit by the defendants. He submitted that it is inconceivable that the plaintiff could part with the original documents without furnishing of Letter of Credit by the defendants, particularly when the plaintiff and the defendants have had no business dealing at any time. The learned Counsel submitted that the defendants would be required to spell out and prove as to whose signature appears on the Agreement, as it is not stated in the pleadings as to who had signed the said documents and evidence would be required for the said purpose. The learned Counsel submitted that it is obvious that the said Mr. Gautam Broker has colluded with the plaintiff, since Mr. Gautam Broker, is directly concerned with the Computerskill Ltd. and it is the said Computerskill Ltd. who has ultimately taken the delivery of the goods from the Custom Authorities. The learned Counsel submitted that Computerskill Ltd. had regular transactions with the plaintiff and this fact, though stated in the Affidavit, has not been denied by the plaintiff. He submitted that the defendants have not received any goods or any payments towards any sale of the said goods. The learned Counsel submitted that, insofar as the Advocate's notice is concerned, the explanation has been given as to why the notice of the Advocate was not replied to and in any event merely because the notice has not been replied to in detail would not strengthen the case of the plaintiff in any manner. He submitted that a preliminary reply was sent denying the case of the plaintiff. The learned Counsel submitted that though the Certificate of Importer-Exporter Code has been produced on record, it does not mean, that there was necessarily any transaction between the plaintiff and defendants. The learned Counsel relied upon the case of (Jyotsna K. Valia v. T.S. Parekh & Co.) reported in : 2007(3) Bom.C.R. 772(O.S.)(F.B.) and submitted that this is a case where unconditional leave to defend the suit ought to be granted to the defendants.
9. I have heard the learned Counsel for the parties and perused the material on record. The plaintiff has based his case essentially on the Purchase Order and the High Seas Sale Agreement, which are annexed as Exhibit A and B respectively to the plaint. Upon perusal of the Purchase Order and the said Agreement, it is revealed that the same has been signed under the words 'Authorized Signatory' appearing in the document. However, it is not stated in the plaint or in any of the Affidavits nor at the stage of Arguments of the Summons for judgment as to who is the person who has signed the said documents. It is pertinent to note that the date of the Agreement mentioned is 19th December, 2006, however, the Stamp Paper is dated 26th December, 2006. On a careful perusal of stamp paper of the said Agreement it is further revealed that on the left side of the stamp paper, there is a rubber stamp where the date of 19th December, 2006' appears. On the right hand side the date of 26th December, 2006 appears in rubber stamp. The date 19th December, 2006 on the left appears to be the date of endorsement inter se between the stamp vendor and the Government Authorities; whereas the date of 26th December, 2006 on the right is the date on which the stamp paper was purchased from the Stamp Vendor. Prima facie it appears the date of 19th December, which is on the left hand side has been taken and typed as the date of the Agreement. It is further pertinent to note that the original Agreement is alleged to have been handed over by the plaintiff to the defendant No. 1 some time in December, 2006 and it has been notarized some time on 22nd January, 2007; however there is no explanation as to how a photocopy of the notarized Agreement has come to the hands of the plaintiff. Another factor which is rather curious is that admittedly the Purchase Order is of 28th December, 2006; however, the date of the invoice is 19th December, 2006 i.e. earlier in point of time to the purchase order and interestingly the same date viz. 19th December as is appearing on the left side of the stamp paper. The explanation given by the plaintiff that the Agreement was typed on computer earlier with the date of 19th December and the same remained to be corrected when the print out was taken cannot be accepted. So also the explanation given by the Counsel for the plaintiff that the Invoice was prepared in, anticipation and that the Purchase Order was only a confirmation of the order after due negotiation of the transaction cannot be accepted. It is also improbable that the plaintiffs were 'induced' by the defendants to part with the original documents to take delivery of the goods of a huge amount of Rs. 93 lacs from the Custom Authorities without the LC being furnished to them by the plaintiff which was clearly contrary to the terms of the Agreement, particularly when there were no earlier business dealings between the plaintiff and the defendants. In my prima facie view the documents are suspicious and under a cloud in so far as their genuineness is concerned.
10. The conduct of the defendant and/or the half truths/untruths in regard to the business carried out by them or about link between Mr. Gautam Broker or Mr. Anurag Gaur with the defendants or the fact that the plaintiffs Advocate's notice was not replied to on merits, cannot take the case of the plaintiff any further, insofar as the present summons for judgment is concerned.
11. In the case of Jyotsna K. Valia (Supra) relied upon by the learned Counsel for the defendants, reference is made to the judgment of (Machalec Engineering and Manufacturers v. Basic Equipments Corporation) reported in : 1976 DGLS (soft) 409 : A.I.R. 1977 S.C. 577 : 1976(4) S.C.C. 687 wherein tests have been laid down for the grant of unconditional leave to defend and where the unconditional leave to defend ought not to be granted. Paragraph 31 of the judgment in the case of Jyotsna K. Valia (Supra) reads as follows:
By so holding it is not as if the defendant is denuded of his defences when he applies for leave to defend. The Supreme Court in Machalec Engineering and .) : 1998 (4) Bom.C.R. 634 (S.C.) : 1998 DGLS (soft) 521 : 1998 (5) S.C.C. 354. The tests laid down are as under:
(a) If the defendant satisfies the Court that he has a good defence to the claim on merits, the defendants is entitled to unconditional leave to defend.
(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence, although not a possibly good defence, the defendant is entitled to unconditional leave to defend.
(c) If the defendant discloses such facts may be sufficient to entitle him to defend, that is, if the affidavit discloses that at the trial he may be able to establish a defence to the plaintiff claim the Court may impose conditions at the time of granting leave to defend the conditions being as to time of trial or mode of trial but not as to payment in to Court or furnishing security.
(d) If the defendant has no defence, or if the defence is sham or illusory or practically moon-shine, the defendant is not entitled to leave to defend.
(e) If the defendant has no defence or the defence is illusory or sham or practically moon-shine, the Court may show mercy to the defendant by enabling him to try to prove a defence but at the same time protect the plaintiff imposing the condition that the amount claimed should be paid into Court or otherwise secured.
12. Considering the fact that the entire transaction has been denied by the defendants and considering the overall facts and circumstances of the case, in my view substantial triable issues are made out by the defendants, The defendants' case would squarely fall within class (a) of the tests laid down in the case of Machalec Engineering and Manufacturers v. Basic Equipments Corporation reported in : 1976 DGLS (soft) 409 : A.I.R. 1977 S.C. 577 : 1976 (4) S.C.C. 687 which tests are reproduced in the judgment of Jyotsna K. Valia (Supra). Learned Counsel for the defendants would, in my prima facie opinion, be right in submitting that a fraud has been perpetrated by fabricating the Purchase Order, Agreement and Invoice. To my mind, it would not be inappropriate to say that this case would be a classic case of misuse of process of law.
13. Having observed as above, I am of the view that the summons for judgment is required to be rejected and is accordingly rejected with costs quantified at Rs. 10,000/- to be paid by the plaintiff to the defendant No. 1 within eight weeks. The defendants are entitled to unconditional leave to defend the suit. The defendants to file their written statement within eight weeks; Affidavit of Documents to be filed within six weeks thereafter; inspection and discovery of the documents, if any, within a period of six weeks thereafter.
14. It is clarified that the observations in this order are prima facie and the Court will not, at the time of trial, be influenced by the above observations and would examine the issues independently and on its own merits.