Rajratan Cottex Industries ... vs Ramakant S/O Murlidhar ...
2016 Latest Caselaw 769 Bom

                                                     1                   jg.wp1096.15.odt




                                                                                        
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            : NAGPUR BENCH : NAGPUR.




                                                               
                                   Writ Petition No. 1096 of 2015

     Rajratan Cottex Industries Factory 
     at Dhule-Chalisgaon Road, 




                                                              
     Chande Phata, at Post Vinchur, 
     Distt. Dhule, Office - Hotel Trideo 
     Complex, Shop No. 1, Vidya Nagar, 
     Deopur, At Post Dhule, Distt. Dhule.                                          .... Petitioner




                                               
        //   VERSUS   //
                             
     Ramakant s/o Murlidhar Khandelwal, 
     Age 56 years, Occpn. - Business, 
     Proprietor - Khandelwal Machinery Stores, 
                            
     Mangaldas Market, Tilak Road, Akola 
     Tq. and Distt. Akola.                                                      .... Respondent
     ----------------------------------------------------------------------------------------------
     Shri R. D. Dharmadhikari, Advocate for the petitioner 
     Shri G. K. Sarda, Advocate for the respondent 
      


     ----------------------------------------------------------------------------------------------
   



                                               CORAM :  PRASANNA B. VARALE, J.

                                               DATE     :  21-3-2016.

     ORAL JUDGMENT 

Heard Shri Dharmadhikari, learned counsel for the

petitioner and Shri Sarda, learned counsel for the respondent.

2. Rule. Rule made returnable forthwith.

3. A very limited controversy is involved in the present

petition. The petitioner challenges the order passed by the 10 th Joint

Civil Judge Junior Division, Akola dated 9-1-2015. The respondent-

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original plaintiff filed Special Civil Suit No. 66/2011 for recovery of

the amount due. It seems that subsequently, the suit was

renumbered as Regular Civil Suit No. 526/2012. It reveals from the

perusal of the copy of the plaint placed on record that both the

parties are dealing in their respective businesses. It is the

submission of the plaintiff that the defendant purchased certain

goods on credit from the plaintiff. The plaintiff is the proprietor of

one machinery stores and dealing in supply business. In short, it

was the say of the plaintiff/respondent that though the defendant

who had purchased goods and was required to pay the amount for

purchase of goods, the amount was not paid, as such, there is claim

of recovery of the said amount with interest. The petitioner resisted

the claim by filing written statement. Perusal of the material placed

on record shows that by order dated 13-12-2012, the learned 2 nd

Joint Civil Judge Junior Division, Akola framed the issues. An

application was filed at the instance of the petitioner/defendant for

framing additional issues. It was submitted that to avoid multiplicity

of the proceedings and ascertainment of the pleadings and its

rebutal, it would be necessary to frame certain additional issues,

namely, (1) whether the plaintiff proves that the material in dispute

was transported by him through Har Har Mahadeo Mini Transport,

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Arco Road Lines and Sangitam Travels ?

(2) Whether the plaintiff proves that the consignment of the material

in dispute was received whether by Rajratan Cottex Industries or

whether by Rajratna Cottex Industries ?

(3) What documents the plaintiff relied on regarding the

consignment sent by the transporter ?

The application was opposed by the plaintiff. It was submitted that

the issues which were already framed by the Court were covering

those aspects wherein the applicant is seeking framing of additional

issues. The learned 10th Joint Civil Judge Junior Division, Akola

found that what is sought by the applicant/defendant was already

referred and covered in issue no. 4. The application was thus

rejected.

4. It was the submission of Shri Dharmadhikari, learned

counsel for the petitioner that the additional issue no. 1 was

necessary so as to establish that the material was transported

through a particular agency, namely, Har Har Mahadeo Mini

Transport, Arco Road Lines and Sangitam Travels. As well, it was

necessary to frame issue no. 2 because the defendant in the written

statement raised the peculiar ground that it has no relationship with

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Rajratan Cottex Industries and the defendant is Rajratna Cottex

Industries. Thus, submission of Shri Dharmadhikari, learned counsel

was the learned Court failed to appreciate the application seeking

the additional issues to be framed in proper perspective.

5. Per contra, Shri Sarda, learned counsel for the

respondent submits that the additional issue no. 1 sought to be

framed by the petitioner is of no consequence on the backdrop of the

fact that it was the case of the plaintiff that the defendant purchased

some material. The plaintiff delivered that material to the defendant

and the defendant received that material. It is submitted by Shri

Sarda, learned counsel in support of the claim of the plaintiff the

plaintiff has placed on record documents such as copy of the bills

and the receipts. Thus, it was the submission that merely referring

to a particular agency makes no difference on the backdrop of the

fact that there was a demand of goods at the instance of the

defendant and the goods were delivered and reached to the

destination. Shri Sarda, learned counsel further submitted that even

the additional issue no. 2 was covered in issue no. 4 which was

already cast by the learned Court on 13-12-2012.

6. On the backdrop of the submissions of the learned

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counsel appearing for the parties, I have gone through the material

placed on record. Considering the copy of the plaint placed on

record, written statement at the instance of the defendant and the

issues framed by the Court dated 13-12-2012, I find considerable

merit in the submission of Shri Sarda in respect of the additional

issue no. 1 sought to be framed. Insofar as issue no. 2 as it was

resisted by the petitioner in written statement itself that he had no

relationship with Rajratan Cottex Industries and the defendant is

having an independent identity by name and style as Rajratna Cottex

Industries. It is also submission that the claim is raised against an

erroneous establishment (wrong defendant). On the backdrop of

these facts, the observation of the learned 10 th Joint Civil Judge

Junior Division, Akola that the issue is already covered under issue

no. 4 framed below Exhibit-13 cannot sustain. The learned Judge

thus erred in arriving at the conclusion that as the issue is covered

under issue no. 4, there is no need to frame this issue separately.

There is no serious dispute on the issue no. 3 sought to be framed

additionally.

7. Considering the above referred facts, in my opinion, the

order passed by the learned 10th Joint Civil Judge Junior Division,

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Akola needs interference in respect of the issue no. 2 only. The

petition is, thus, partly allowed. The learned trial Court is directed

to frame issue no. (ii) Whether the actor proves that the

consignment of the material in dispute was received whether by

Rajratan Cottex Industries or whether by Rajratna Cottex

Industries ?

as an additional issue. ig

8. It is submitted by Shri Sarda, learned counsel that as the

suit is pending before the Court for long period i.e. suit is filed in the

year 2011, the Court below may be directed to decide the suit within

stipulated time frame. Though the learned counsel Shri Sarda

prayed for direction to decide the suit within stipulated time frame,

in my opinion, it is not proper to issue such a direction. However,

learned Civil Judge Senior Division, Akola is directed to decide the

suit as early as possible as the same is pending since the year 2011.

With these observations, the writ petition is partly

allowed and disposed of.

JUDGE

wasnik