Bombay High Court
Sailam B.V.B.A vs M/S. Helios Jewellery Pvt. Ltd. & Ors on 6 March, 2014
Author: Roshan Dalvi
Bench: Roshan Dalvi
1 SJ.311/2012-SS.334/2012 & NMS.239/2014-
IN SS.334/2012(902)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUMMONS FOR JUDGMENT NO. 311 OF 2012
IN
SUMMARY SUIT NO. 334 OF 2012
Sailam B.V.B.A ...Plaintiffs
Vs.
M/s. Helios Jewellery pvt. Ltd. & ors.
ig ...Defendants
AND
NOTICE OF MOTION NO. 239 OF 2014
IN
SUMMARY SUIT NO. 334 OF 2012
M/s. Helios Jewellery pvt. Ltd. & ors. ...Applicants (Orig.Defdts.)
Vs.
Sailam B.V.B.A. ...Plaintiff
Mr. Archit Jayakar a/w. Nikhil Wable
i/b. Jayakar & Partners, Advocates for the Plaintiffs
Mr. Sunil D. Mogre, Advocate for Defendants
CORAM : MRS. ROSHAN DALVI, J.
DATED : 6TH MARCH, 2014
ORAL ORDER :
1. The parties are diamond merchants. The plaintiff carries on business in Belgium. The defendant carries on business in Mumbai and Surat. There have been transactions for the sale of diamonds between the parties.
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2. The plaintiff sold certain polished diamonds to the defendant under 4 invoices dated 25th January, 2011, 26th January, 2011, 31st January, 2011 and 4rh February, 2011. The invoices were accompanied by 4 shipping instructions, 4 export documents and 4 airway bills. The goods were sent to the defendant in Surat, India.
3. These goods have been accepted by the defendant. It is stated that the goods were transported to Mumbai. The defendant has claimed that it has returned the goods to the plaintiff under its jangad/challan dated 4th February, 2011 to the plaintiff's address in Mumbai. The defendant claims that since the plaintiff had no office in Mumbai, but its partner only resided in Mumbai the diamonds could not be imported in Mumbai itself and hence the plaintiff requested the defendant to permit the plaintiff to use its name and address for the purpose of allowing import the goods by the plaintiff's partner. The defendant claims commission for such service, but has not sued for commission. The defendant has further claimed that the diamonds so sent by the plaintiff from Belgium were "duly handed over by the defendant" to the plaintiff's partner and the plaintiff's partner had executed a receipt in that behalf.
4. This case on merits would have to be considered. The supply of diamonds is admitted. The jangad/Challan made out by the ::: Downloaded on - 29/03/2014 18:54:55 ::: 3 SJ.311/2012-SS.334/2012 & NMS.239/2014- IN SS.334/2012(902) defendant and stated to be signed by the plaintiff as receiver of the goods shown therein evidences the written contract between the parties made up of the 4 invoices and one jangad/challan signed by the plaintiff and written by the defendant.
5. The plaintiff has denied the receipt of the diamonds. The plaintiff has claimed that its partner's signature is forged. The defendant's defence cannot be prima facie seen in view of the plaintiff's denial. However the plaintiff's supply of goods can be clearly seen in view of the defendant's defence itself.
6. The defendant would contend that there is no written contract between the parties. The written contract is not made out as usual by the invoice accompanied by the delivery challans constituting a written contract between the parties. It will have to be seen whether the invoices of the plaintiff read with the jangad/challan of the defendant would constitute a written contract.
7. A Full Bench judgment of this Court in the case of Jyotsna K. Valia Vs. T.S. Parekh & Co. 2007(3) Bom.C.R. 772 has considered what would be a written contract between the parties. In paragraph 14 of the judgment it has considered Section 2(h) (wrongly typed as l)which defines "an agreement enforceable by law" to be a contract, Section 2(e) which defines the agreement as ::: Downloaded on - 29/03/2014 18:54:55 ::: 4 SJ.311/2012-SS.334/2012 & NMS.239/2014- IN SS.334/2012(902) the set of promises forming the consideration for each other as also Section 10 showing what agreements are contracts.
8. Referring to the case of T.A. Ruf & Company Ltd. Vs. Pauwels (1919)1 K.B.660 the judgment has considered that the contract in writing would not necessarily mean a contract signed by both the parties, but it would be a contract only verified by the signature of one of the parties.
In fact in this case the invoices and the jangad read together show the signatures of both the parties.
9. The judgment also relies upon the case of the Madras High Court in the case of Lucky Electrical Stores, by Partner Mahendra Kumar Shah & Anr. Vs. Ramesh Steel House, by Partner Babulal 1988, Madras Law Reports, 187 in which it was held that even when the invoice of the plaintiff was not signed, but the goods were accepted and admittedly received by the purchaser, the document constitute a written contract between the parties.
In this case the goods sent by the plaintiff under the 4 invoices are shown to have been received by the defendant in as much as the defendant has returned those goods to the plaintiff on the date of the last transaction itself showing the particulars of the goods sent under each of the 4 invoices. There is, therefore, a contract in writing ::: Downloaded on - 29/03/2014 18:54:55 ::: 5 SJ.311/2012-SS.334/2012 & NMS.239/2014- IN SS.334/2012(902) between the parties.
10. The aforesaid full bench judgment has further held that the written contract need not be evidenced by a simple document, but can be by exchange of documents; it need not even be necessarily signed by both the parties. It has further observed thus :
" However, the writing must be such to arrive at a conclusion that an agreement certainly has been brought into existence and that the claim made under such an agreement ought to be indisputable".
11. The judgment has, therefore, concluded that the expression "written contract" must be given an extended meaning if it is possible to spell out an agreement enforceable in law to do something to be found in the writing which binds the parties.
These are stated to be some indicators of understanding the expression "a contract in writing".
Based upon these parameters the suit contract is in writing.
12. The full bench judgment has noted the requirements of the summary suit in paragraph 28 of the judgment:
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IN SS.334/2012(902) "(1) There must be a concluded contract;
(2) The contract must be in writing;
(3) The contract must contain an express or implied promise to pay".
The 4 invoices and the jangad constitute and conclude a contract between the parties. It is signed by the plaintiff and handwritten by the defendant and hence is a contract in writing. The receipt of the diamonds shows an implied promise to pay.
13. In paragraph 28 of the judgment the Full Bench has distinguished between a implied term in a written contract and a implied promise to pay. The Summary Suit is not concerned with an implied term in a written contract eg. Waranties, conditions, or implied conditions in law such as the Sale of Goods Act, Marine Insurance Act, Master and Servant Law and the Landlord and the tenant law. It contemplates an implied promise to pay.
Every commercial promise showing receipt of goods implies within itself the promise to pay for those goods (or of course to return those goods for the reasons allowed in law).
14. Hence in this case the written contract between the parties under the 4 invoices and the jangad would show the receipt of goods by the defendant and the implied promise to pay for the ::: Downloaded on - 29/03/2014 18:54:55 ::: 7 SJ.311/2012-SS.334/2012 & NMS.239/2014- IN SS.334/2012(902) goods if the defendant kept the goods for itself or dealt with the goods. Of course, if the defendant succeeds in proving that it had returned the goods there would be no further liability to pay upon the implied promise to pay. That would have to be seen either in a counter claim filed by the defendant or in separate suit or at least in the defence, if any, if the suit goes to trial. However, the defendant's defence denied by the plaintiff would not show such substantial defence as to allow the defendant to go to trial unconditionally for the goods shown to be returned to the plaintiff at the plaintiff's partner's residential address in Mumbai on the date of last transaction itself as claimed by the defendant; there is nothing whatsoever to corroborate that fact by any circumstantial evidence. The defendant's claim that the suit is not based upon any written contract or any acknowledgment of liability is, therefore, incorrect. The written contract is evidenced by the 4 invoices and the jangad. The acknowledgment of liability is for the specific goods recited in the jangad. It would be to the extent of the value of the goods shown in the invoices.
15. On merits, therefore, the plaintiff would have to be secured for the value of the goods sent by the plaintiff from Belgium to India and received by the defendant in Surat and bought to Mumbai as claimed by the defendant in paragraph 9 and 10 of the affidavit-in-reply of the defendant.
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16. The defendant has raised other technical defences.
17. The defendant claims that this Court has no territorial jurisdiction. This is in view of the fact that the plaintiff's invoices show "the Antwerp Tribunal of Commerce as solely competent in case of litigants" The defendant would, therefore, contend that only that tribunal in Belgium would have jurisdiction to try the plaintiff's claim. That is true only up to a point. Indeed the plaintiff's invoices do show the territorial jurisdiction of the parties being the plaintiff as also the defendant in the tribunal in Antwerp, Belgium. However the defendant's jangad shows that it was subject to Mumbai jurisdiction. The defendant, therefore, itself confierred jurisdiction ofupon this Court. The plaintiff's case would have to be read along with the defendant's jangad, the later document dated 4th February, 2011. In fact it would constitute a novatio between the parties to the extent of the conferrent of the jurisdiction the plaintiff must respect the defendant's conferment.
Hence the suit would be competent to be filed in this Court.
18. It is further contended by the defendant that the plaintiff has claimed and alleged certain forgery and fabrication of documents in respect of Exhibit-Q as shown in Exhibit-R to the plaint. Exhibits Q and R are the swift messages of the bank of the defendant to the plaintiff's bank showing the remission of Rs.5.50 lakh USD to the plaintiff's account. Such a remission was not ::: Downloaded on - 29/03/2014 18:54:55 ::: 9 SJ.311/2012-SS.334/2012 & NMS.239/2014- IN SS.334/2012(902) made. The plaintiff's account was never credited. Exhibit-R is the analysis of the same swift message showing various errors and anomalies which would go to show that such a swift message was got forged and fabricated and was not a genuine message of the bank.
19. The suit based upon the 4 invoices and the other accompanying documents of the plaintiff would be required to be tried and adjudicated upon those documents whether or not the swift message was sent by any bank to the plaintiff. The plaintiff's bank account of the relevant date would be only evidence in that behalf.
20. It is contended on behalf of the defendant that because a fraud has been alleged and a criminal complaint has been filed and is being investigated against the defendant that the suit itself must be stayed. The defendant contends that a defence in the suit would embarrass his criminal trial.
21. Counsel on behalf of the defendant has relied upon several judgments on this subject. It may be mentioned that the judgments do lay down a principle of law that when the defence in a civil suit and in a criminal trial would be the same, normally the civil suit would be stayed until the criminal trial is completed. However the judgments do not show that merely because there is a criminal ::: Downloaded on - 29/03/2014 18:54:55 ::: 10SJ.311/2012-SS.334/2012 & NMS.239/2014- IN SS.334/2012(902) complaint filed against the defendant, he can take advantage of his own crime to stall and delay the civil trial pending the completion of criminal trial.
22. Consideration of the judgments relied upon or defendant would show the subtle difference between a civil defence in a civil trial and a criminal trial which would be the same for a civil action and a criminal complaint based upon the same act or incident.
23. In the case of M.S.Sheriff & Anr. Vs. State of Madras & Ors.
AIR 1954 S.C. 397 (Vol.41, C.N.95) the Supreme Court had to consider the criminal complaint of wrongful confinement and a civil suit for damages for wrongful confinement. The Court observed in para 15 of the judgment that there may be conflicting defences in the civil and criminal Courts and likelihood of embarrassment. The Court observed in para 16 of the judgment that criminal justice should be swift and sure and the accused must have fair and impartial trial. Things should not slide till memories have grown too dim to trust. The Court, therefore, observed that the criminal matters be given precedence. However it showed the rider that it was not a hard and fast rule; if the civil case or the criminal proceeding was so near to its end it would be improper to stay either.
In that case the Court stayed the civil suit.
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24. In the case of Assumpcao Ribeiro & Ors. Vs. Elaviano Boaventura Salvador Silveira AIR 1979 Goa, Daman & Diu 37 the Court of Goa, Daman and Diu has considered the criminal complaint of forming an unlawful assembly and entering upon a house along with a civil suit for damages made by such act and upon such incident.
The defence in both the cases would be the same resulting in embarrassment and prejudice. The Court directed the disposal of the criminal case pending which the civil suit was to be stayed.
25. In the case of Arvind Kalidas Wadodkar Vs. Ramdas Devidas Joshi 1996(2) Mh. L.J. 907 and in the case of Ramanand S/o. Nanakram Ladda & Anr. Vs. Dr. Kacharulal S/o.
Amolakchand Lodha 1998(3) Bom.C.R. 334 the Court considered the criminal offence of defamation and the civil suit for damages of defamation.
The same result followed.
26. It is of importance to note that the criminal prosecution in this case has no bearing upon the civil suit. The civil suit can proceed without the claim of cheating, fabrication or forgery of the swift message for which the criminal prosecution has been filed. In fact the civil suit can proceed based upon the defendant's own defence.
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27. Whether or not there was any forgery or cheating by the defendant, the plaintiff would be entitled to his claim only upon proof of the suit transaction, which, of course, is as stated above and which has been clearly shown in the Summons for Judgment itself, thanks to the defendant's own document.
28. It may be mentioned that this may be a case in which the Court would have to consider whether the defendant would have the right to begin, under the provisions of Order 18 Rule 1 of the CPC to prove that the goods mentioned in jangad/challan were indeed returned to the plaintiff since the jangad itself shows a receipt of the goods.
29. The defendant has contended that the claim of interest is not under the written agreement between the parties and consequently the suit cannot be filed as a summary suit. Indeed there is no written agreement between the parties to pay interest as claimed by the plaintiff. There can be no implied promise to pay any such interest also. Counsel on behalf of the plaintiff fairly conceded that the defendant's claim in that behalf is not illusory.
30. It would have to be seen whether merely because interest is claimed from the dates of the transactions by the plaintiff the entire suit would become non-maintenable as the Summary Suit. The ::: Downloaded on - 29/03/2014 18:54:55 ::: 13SJ.311/2012-SS.334/2012 & NMS.239/2014- IN SS.334/2012(902) judgment of the full bench of this Court in the case of SICOM Ltd. Vs. Prashant S. Tanna & Ors. AIR 2004 Bombay 186 is the answer. It has been held in para 19 of this case that making of an excess claim would not maintain a suit as a Summary Suit so long as the action falls within one of the classes enumerated in Order 37 Rule 1(2).
It is observed in para 21 of the judgment thus:
"We are unable to see any purpose in driving a plaintiff to first withdraw the summons for judgment, thereafter amend his plaint and finally take out a fresh summons for judgment. Such a course serves no useful purpose whatsoever. The same result can be achieved by the plaintiff merely making a statement at the bar".
It is observed in para 23 of the judgment thus:
" By the same process of reasoning, it would be open in such a case for the Court to pass a conditional order in respect of that part of the claim which the Court finds to be sustainable and unconditional leave for that part of the claim for which the Court finds there is some defence".
31. It is seen that the defendant would have some defence with regard to the claim of interest. The defendant must be entitled to ::: Downloaded on - 29/03/2014 18:54:55 ::: 14SJ.311/2012-SS.334/2012 & NMS.239/2014- IN SS.334/2012(902) unconditionally defend the suit with regard to the claim of interest. However it is seen that the claim of the principal amount is for the goods admittedly received by the defendant. The defendant's defence that they were returned to the plaintiff would have to be proved by the defendant. The defendant can defend such a claim only upon the deposit of the entire principal amount under the 4 invoices of the plaintiff.
32. Hence the following order:
1. The defendant's Notice of Motion No. 239 of 2014 for stay of the suit pending the criminal trial is dismissed.
2. The suit shall proceed to hearing.
3. The defendant shall deposit the entire principal amount in this Court within 8 weeks from today.
4. The defendant shall be entitled to file its written statement within 2 weeks of the deposit and within 10 weeks from today.
5. The defendant shall have unconditional leave to defend the plaintiff's suit for interest.::: Downloaded on - 29/03/2014 18:54:55 :::
15SJ.311/2012-SS.334/2012 & NMS.239/2014- IN SS.334/2012(902)
6. The amount, if deposited shall be invested by the Prothonotary and Senior Master of this Court in any nationalised bank initially for a period of 61 months.
7. The plaintiff shall not be permitted to withdraw any amount pending the suit on any conditions.
8. Suit to be on board for further directions for hearing on 10th June 2014 at 3 p.m. (ROSHAN DALVI, J.) ::: Downloaded on - 29/03/2014 18:54:55 :::