1

7634.20 wp sr.no.912 d-5-110221.docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 7634 OF 2020.

Prabiyotsing S/o. Harvindra Sing Bindra

Age 26 years, Occ. Business,

R/o. Kranti Chowk,

Aurangabad.

..

Petitioner

[Ori. Defendant]

Versus

Shrivallabh Ramgopal Ramchandraji Darak

Age 40 years, Occ. Business,

R/o. Mr. Darak Traders,

14-15, Pranav Plaza, Opp. Aurangpura

Bhaji Market, Aurangpura,

Aurangabad.

..

Respondent

[ Ori. Plaintif]

…

Mr. Anand P. Bhandari, Advocate for Petitioner

…

CORAM :

ABHAY AHUJA, J.

ORDER RESERVED ON

: 28^th JANUARY, 2021

ORDER PRONOUNCED ON : 16^th FEBRUARY, 2021

ORDER:-

This is a petition fled under Article 227 of the

Constitution of India 1950, by the Original Defendant in Special Civil

Suit No. 280 of 2017 (the “said suit”) assailing the order dated 3rd

February 2020, passed by the 10th Joint Civil Judge (Senior Division)

2

7634.20 wp sr.no.912 d-5-110221.docx

Aurangabad, allowing the application by the Original Plaintif

Respondent for framing the following additional issue:

“Whether the defendant proves that the Tax invoices, the

Delivery Challans are false, forged and fabricated

document”.

2]

It is the Plaintiffs case in the suit, that the Defendant,

for the purposes of his restaurant was purchasing groceries

referred to as kirana, from Plaintif and therefore had business

relation with him since 2014. That the kirana material was

supplied as and when ordered by the Defendant as per the

respective tax invoices and delivery challans and the payment was

being made by the Defendant in part as a mutual running account.

That supply of Kirana was recorded in the Ledger Account of the

Defendant maintained by the Plaintif in regular course of business

showing details of the supply and of payment i.e. debit and credit

having reference to tax invoice numbers and opening balance/

closing balance. It is submitted that accordingly, on 13^th January,

2016, an amount of Rs. 8, 70,316/- was due. The Plaintif claims to

have sent notice on 04.03.2017 to the Defendant for recovery of

the amount, which, despite correspondence and reminders

remained unpaid. The said suit therefore came to be fled by the

plaintif for recovery of Rs.8,70,316/- along with interest at the rate

of 18% per annum from the date of the suit till the recovery of the

entire amount from the Defendant.

3

7634.20 wp sr.no.912 d-5-110221.docx

3]

In the Written Statement fled by the Defendant, the

claims made by the Plaintif have been denied. The Defendant has

denied that he knows the Plaintif. It is stated that Defendant has

no restaurant nor is he running any business. It is submitted that

the Defendant has never purchased any kirana goods from the

Plaintif. The business relation/transaction with Plaintif, the supply

of Kirana by the Plaintif or the receipt of tax invoices or delivery

challans of the goods or any payment made to the Plaintif, the

recording of any ledger account containing any details of supply or

payments has been completely denied as false. That there is no

privity of contract nor there is any transaction between the

Defendant and the Plaintif. The notice or any correspondence

between the Plaintif and the Defendant or the suit claim of Rs. 8,

70,316/- is completely denied as false. It is submitted that there is

no cause of action. Pertinently, it is stated in paragraph 11 of the

Written Statement that the tax invoices and delivery challans are

false, forged and fabricated. It is also submitted that the petitioner

is not the Proprietor of “Hotel Balle Balle”, nor does he have any

concern with the said hotel. It is also submitted that the suit is

false, fctitious.

That the respondent/plaintif is causing

harassment mental and physical and creating false liability by fling

the said suit that the said suit be dismissed with costs and

compensatory cost of Rs. 25000/- be awarded to the Petit