Final Order 1

Order Details: Other
Pdf Text: MHCC010001622020
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
SUMMONS FOR JUDGMENT NO. 2 OF 2020
IN
SUMMARY SUIT NO. 250 OF 2018
Mr. Pratik V. Shah, age 26 years, Indian
Inhabitant, carrying on business under the
name and style of M/s. Trend Clothing
Company, having its Address at 2/201,
Lulla’s Arcade Building, Opp. Bhanu Sagar
Theatre, Station Road, Kalyan (W),
District- Thane ...Plaintiff
Vs.
Mr. Javed Abdul Hamid Khan
carrying on his business as Sole Proprietor
Under the name and style of M/s. Unity
Industries, having its address at Room
No.105, Building No.4-A, Aghadi Nagar,
Society, Dargah Road, Behind Jakaria
Masjid, Bhandup (W), Mumbai-400 078 ….Defendant
Appearance:-
Adv. Mr. Girish Kedia for the Plaintiff.
Adv. Mr. Mohit Jadhav for the Defendant.
CORAM :- HER HONOUR JUDGE
SMT. S. G. SHAIKH
CITY CIVIL COURT,
GR.MUMBAI (C.R.NO.59)
DATE :- 10/03/2021
-- 1 of 5 --
2 SJ 2/2020 Sum. Suit No.250/2018
ORDER
(Dictated and pronounced in Open Court.)
1. The plaintiff has brought this Summons for Judgment and
thereby directing the defendant to pay amount of Rs.4,00,000/- with
interest @ 18% per annum from the date of the suit till its realization.
2. Perused the documents on record. Heard advocates of the
parties at the length.
3. The defendants appeared on Summons for Judgment and
filed reply/ leave to defend within limitation on the principal reason
that:-
i) the amount claimed in this suit is not arising out of
contract.
ii) The provisions of Order 37 of the Civil Procedure Code,
1908 as to Summary Suit are not applicable in the present
suit.
iii) That the amount of Rs.4 lakhs is given by the plaintiff to
the defendant as per the understanding on account of
interest free security deposit.
iv) that plaintiff requested to allow him to occupy Gala adm.
13 x 50 , at Jaishankar Tanaji Wadi,Bhandup (W), Mumbai
and the plaintiff has given said amount of Rs.4,00,000/- for
constructing walls WC unit and for fitting of floor in the
said Gala.
4. There is no dispute as to receipt of Rs.4,00,000/- by the
defendant from the plaintiff. The question as to whether the amount
claimed arising out of the contract or not and as to whether provisions
of Order 37 of the Code of Civil Procedure are attracted or not to the
-- 2 of 5 --
3 SJ 2/2020 Sum. Suit No.250/2018
present suit, suit leads inference that the defendant has probable
defence. On going through the record of the suit and documents of
contract to decide the suit, it is interpretation of the agreement dated
30.04.2008. The defence of the defendant as above is taken at early
stage i.e. at the time of replying the legal Notice dated 30.01.2017
issued by the plaintiff. The reply notice of the defendant dated
09.03.2017 has raised the above defences.
5. This Court neither intend to comment on the merits of the
case as this is not the stage of appreciation of evidence. There is no
dispute as to receipt of Rs.4 lakhs by the defendant from the plaintiff.
Therefore,, it becomes necessary to generally assess the case on the base
of the strength of defences raised by the defendant on the test of basis
laws. It is also necessary to adjudicate the case on the basis of evidence
as to find out as to whether defendant is liable to pay amount of Rs.4
lakhs to the plaintiff or not.
6. In the opinion of this court, whether the plaintiff is entitled
to recovery of amount as claimed is the triable issue in this suit and this
issue can not be brushed aside on the procedure of summary suit.
7. In this background, it is held that defendant have made out
a case to allow them to leave to defend this suit. Defendant has
plausible defence. Therefore, the defendant should be allowed leave to
defend. However, if the defendant fails to prove the defence, it will
have to pay the amount claimed to the plaintiff. Therefore, in order to
curtail the possibility of any relief from defendant's side, this court
desire to put the condition on the defendant to deposit 50% of principal
amount of Rs.4,00,000/- which comes around Rs.2,00,000/-. The said
-- 3 of 5 --
4 SJ 2/2020 Sum. Suit No.250/2018
amount shall be deposited by the defendant within four weeks In
consequence the Summons for Judgment is liable to be dismissed.
Hence, the following order is passed.
ORDER
1. Summons for Judgment No.2/2020 is dismissed.
2. Defendant is allowed to defend the suit on the condition that he
shall deposit amount of Rs.2,00,000/- within four weeks
from today and file his written statement.
3. Costs in cause.
4. Summons for Judgment No.2/2020 is disposed off accordingly.
(S.G. Shaikh)
Date : 10/03/2021 Judge, City Civil Court
Gr. Mumbai
-- 4 of 5 --
5 SJ 2/2020 Sum. Suit No.250/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10/03/2021 05.00 p.m. ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.59)
Date of Pronouncement of
JUDGMENT/ORDER
10/03/2021
JUDGMENT/ORDER signed by
P.O.on
10/03/2021
JUDGMENT/ORDER uploaded on 10/03/2021
-- 5 of 5 --