Final Order 1

Order Details: Copy of Judgment
Pdf Text: MHCC010001672018 Presented on 05/01/2018
Registered on 17/01/2018
Decided on 22/08/2025
Duration 07Y: 07M: 17D
Exhibit 31
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMARY SUIT NO. 80 OF 2018
Solution 1 Interiors (India) Pvt Ltd. ]
Through Mr. Sudhakar Shetty, ]
Aged 51 yars, Director of plaintiff ]
B-506, Shree Kedarnath, Opp Gokul ]
Anand Hotel, Western Express Highway, ]
Dahisar (E), Mumbai 400 068. ]...Plaintiff
VERSUS ]
1. Cavalry the Lounge ]
previously known as Cavalli the Lounge ]
2. Chetan Dhuri ]
Partner, Adult ]
3. Mahendra Singh Arya ]
Partner, Adult ]
4. Jitendra Kumar ]
Partner, Adult ]
(Partners of Defendant No.1) ]
All defendants having address at ]
2nd floor, Hira Panna Mall, Hiranandani ]
Gardens, Powai, Mumbai-76. ]...Defendants
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Appearance :-
Ld. Adv. Surendrakumar B. Shetty for plaintiff.
Ld. Adv. A. P. Sathe for defendants No. 1, 2 and 4.
Defendant No.3 absent (Ex-parte).
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO.: 81
DATE : 22/08/2025.
JUDGMENT
( Dictated and pronounced in open Court)
01] This suit is filed under Rule 2 of Order XXXVII of Code of
Civil procedure, 1908 (C.P.C.) for recovery of amount of
Rs. 77,84,250/- along with further interest against defendants.
Brief facts of the plaintiff’s case may be summarized as under :-
02] As per plaintiff, it is a Private Limited Company registered
under the Companies Act 1956 and carried on business of Trunkey
Contractors, including interiors, civil, carpentry and sealing, modular
furniture, Electrical data cabling, Fire Alarm System and access control
System. Defendant No. 1 is a Partnership firm and defendant No. 2
and 3 are partners of defendant No. 1 firm. In the month of March,
2017, defendants engaged plaintiff for execution of civil, fabrication,
painting, fixed furniture, loose furniture, mechanical electrical,
plumbing and lighting works for execution at their lounge at Powai.
Further, during the execution of said work name of defendant No. 1
was changed from Cavalli the Lounge to Cavalry the lounge. The
plaintiff has completed said work and Architect of defendants namely,
M/s. Dushant Ghataliya Architects Pvt. Ltd. vide Certificate dated
05/05/2017 certified the value of the work executed by the plaintiff as
Rs. 1,50,00,000/- plus tax. Further, it is mentioned that plaintiff has
done satisfactory work. On the basis of said Certificate, plaintiff raised
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Invoice No. SIPL/17-18/18 dated 08/05/2017 for Rs. 1,50,00,000/-
plus tax of Rs. 27,75,000/-, total amounting to Rs. 1,77,75,000/-. The
plaintiff gave credit of Rs. 1,05,00,000/- to the defendants with respect
to the amount paid by them. Therefore, an amount of Rs. 72,75,000/-
is balance against defendants. Therefore, plaintiff vide email dated
12/07/2017 at about 2.38 p.m. requested defendants to make the
balance payment. The defendants replied to the said email on
12/07/2017 at about 16.28 pm and informed they will release
payment soon. However, defendants failed and neglected to pay the
balance amount. Therefore, plaintiff issued legal notice dated
01/08/2017 to the defendants and called upon to make the balance
payment with interest at the rate of 21% p.a. Though, defendants have
received the said notice, they neglected and failed to pay the
outstanding amount with interest. Therefore, plaintiff is entitled for an
amount of Rs. 72,75,000/- towards balance amount and Rs. 5,09,250/-
towards interest, total amounting to Rs. 77,84,250/- along with further
rate of interest at the rate of 21% p.a. Hence, this suit.
03] Defendants No.1, 2 and 4 appeared in the matter and filed
their written statement vide Exh. 9 and denied all adverse contentions.
Defendant No. 4 is sole proprietor of defendant No. 1 and he has
executed Power Of Attorney in favour of Defendant No. 2. The plaintiff
has suppressed the material facts from this Court as there is no
admitted liability on behalf of defendants. Though, it is the contention
of plaintiff that estimate of defendants contract was Rs. 1,50,000,00/-
however, in his email dated 07/12/2016, value of contract is
mentioned as Rs. 1,25,00,000/-. The plaintiff has not carried out the
work as agreed between the parties and they have used inferior quality
material and further failed to work within the time. Therefore,
defendants have suffered heavy loss due to delay on the part of the
plaintiff. Further, plaintiff has not completed the work as agreed
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between the parties and have left the work incomplete. Therefore,
defendants had to get the work done and completed from other
contractors and had to pay them. It is denied that defendant No. 1 is
a partnership firm and defendants No. 2 and 3 are its partners.
Defendant No. 1 is a proprietary concern of defendant No. 4. Further,
defendant No.3 is not connected with the said firm. It is further
submitted that they have not appointed M/s. Dhushyant Ghatalia
Architect Pvt. Ltd. as their architect or to issue Certificate of alleged
work on their behalf. The Tax Invoice raised by the plaintiff are
incorrect. On the contrary defendants have over paid the plaintiff and
plaintiff has not carried out work to the satisfaction of the defendants.
Further, plaintiff has not mentioned any outstanding amount in the
email sent by the plaintiff because no amount was due against
defendants. Further, so called reply sent to the email of plaintiff on
behalf of defendants was sent by one Mr. Karan Rohra from his
personal email and not on behalf of the defendants. Further, Karan
Rohra was not authorized by the defendants to enter into
correspondent with anybody. After receipt of the notice, defendant No.
2 personally met Mr. Sudhakar Shetty and explained the fact and he
was agreed that nothing is due against defendants. Further, there was
amicable settlement between the parties. Therefore, present suit filed
by the plaintiff against defendants is not tenable. Hence, suit may be
dismissed with costs.
04] Defendant No. 3 failed to appear despite of service of writ
of summons therefore, suit against defendant No. 3 is proceeded ex-
parte vide order dated 13/03/2018.
05] Considering the rival contentions of either side Issues
were framed at Exh. 10. The issues are reproduced as follows. I have
recorded my findings thereon, for the reasons detailed as under:-
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Sr.
No.
Issues Findings
1 Whether the plaintiff proves that he has carried out
work to the tune of Rs.1,50,00,000/- at the
instance of defendants ?
Yes
2 Whether the plaintiff proves that the cost of work
carried out by him is certified by the Architect
namely Dushyant Ghatalia Architects Private
Limited ?
Yes
3 Whether the plaintiff proves that the said Architect
was appointed by the defendants ?
No
4 Whether plaintiff proves that an amount of
Rs.72,75,000/- is due from the defendants ?
No
5 What order and decree ? As per final
order
06] In support of claim, the plaintiff has filed affidavit of claim
of Mr. Sudhakar Shetty, Director of the plaintiff as P.W.1, at Exh. 10 and
reiterated his contention in the plaint for recovery of
Rs. 77,84,250/- along with the further interest at the rate of 21% p.a.
from defendants. The plaintiff also examined Mr. Sumeet Devram
Wankhade as P.W.2 at Exh. 25. The plaintiff has filed and relied upon
the following documents at Exh. 11. Plaintiff has filed evidence close
pursis at Exh. 26.
Sr.
No. Exhibit Particulars
1 Exh. 13 Certificate dated 05/05/2017 alongwith BOQ
summary issued by M/s.Dushyant Ghatalia Architects
Pvt. Ltd.
2 Exh. 14 Office copy of Tax Invoice along with summary of
BOQ and its annexures.
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3 Exh. 15 Emails dated 12/07/2017 of 2.38 pm and 4.28 pm.
4 Exh. 16 Office copy of legal notice dated 01/08/2017 issued
to defendants.
5 Exh. 17 Original Postal Receipt dated 01/08/2017.
6 Exh. 18 Original Postal Acknowledgment card.
7 Exh. 19 Track Report of post department.
8 Exh. 20 Particulars of claim.
9 Exh. 21 Extract of Board resolution dated 06/12/2017.
10 Exh. 22 Certificate under Section 65B of Indian Evidence Act.
07] Defendants No. 1, 2 and 4 have not adduced any evidence
in their defence and they have closed their evidence vide pursis at
Exh. 27.
R E A S O N S
As to Issues No. 1 to 5 :-
08] Perused plaint, written statement of defendants No. 1, 2
and 4, oral and documentary evidence. Both parties filed written notes
of arguments. Heard both parties. All issues are inter-related hence
require common discussion in order to avoid repetition of facts and
evidence.
09] It has come in the evidence of Mr. Sudhakar Shetty P.W.1
that plaintiff company has authorized him vide Board Resolution dated
06/12/2017 at Exh. 21 to represent the present suit. On perusing said
resolution, it substantiates the contention of the plaintiff. Mr. Sudhakar
P.W.1 has reiterated contents in the plaint. Further, Mr. Sudhakar
P.W.1 has deposed that defendant No. 1 is partnership firm and
defendants No. 2 to 4 are partners of it. Defendants have contended
that defendant No. 1 is proprietary concern and defendant No. 4 is sole
proprietor and defendants No.2 and 3 are not concerned with
defendant No.1. It is pertinent to note that neither plaintiff nor
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defendants have filed any document to support their respective
contentions. Even there is no cross examination on said aspect by the
defendants. The defendants could have filed any document to show
that defendant No. 4 is sole proprietor of defendant No. 1. Further, it is
the contention of the plaintiff that defendants had appointed the
plaintiff for execution of civil, fabrication, painting, fixed furniture,
loose furniture, mechanical electrical, plumbing and lighting works for
execution at their lounge at Powai. The plaintiff to support said
contentions relied on certificate dated 05/05/2017 issued by M/s.
Dushyant Ghatalia Architects Pvt. Ltd. At Exh. 13. On perusing said
certificate, it appears that it is certified by Mr. Sumit Wankhade that
plaintiff was appointed by defendants No. 2 and 3. Defendants have
denied that they had appointed M/s. Dushyant Ghatalia Architects Pvt.
Ltd.
10] Further, plaintiff to prove that M/s. Dushyant Ghatalia
Architects Pvt. Ltd. was appointed by the defendants have examined
Mr. Sumeet Wankhade P.W.2. He has deposed that defendants No. 2
and 3 appointed M/s. Dushyant Ghatalia Architects Pvt. Ltd. Further,
he deposed that he has issued certificate at Exh. 13 i.e. final bill and
inspection of work. However, during cross-examination, he has stated
that there is no document to show that defendant No. 1 appointed him
as Architect. Even, Mr. Sudhakar P.W.1 has stated in cross-examination
that he has not produced any document to show that defendant No. 1
appointed M/s.Dushyant Ghatalia Architects Pvt.Ltd. Further,
Mr. Sumeet P.W.2 has stated in his cross-examination that he has not
produced any plan to show what work to be done, what was estimated
costs and he does not know when work was started. Further every
page of Bill at Exh. 14 does not bear his signature. Thus, from evidence
of this witness, it appears that plaintiff has failed to show that M/s.
Dushyant Ghatalia Architects Pvt. Ltd. was appointed as Architect by
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the defendants.
11] As per Mr. Sudhakar P.W.1, as per certificate at Exh. 13,
the value of contract was Rs. 1,50,00,000/-. Defendants have denied
the said fact. On the contrary, it is the contention of the defendants
No. 1, 2 and 4 that plaintiff in email dated 07/12/2016 value of
contract is mentioned as Rs. 1,25,00,000/-. It is pertinent to note that
both parties have not filed copy of said email. Though, defendants
No. 1, 2 and 4 have pleaded in para 3 of their written statement about
said email and it is annexed as Exh. 1. However, there is no suggestion
given to Mr. Sudhakar P.W.1 during cross-examination either in
respect of said email dated 07/12/2016 nor value of contract was
Rs. 1,25,00,000/. Further, during cross-examination Mr. Sudhakar
P.W.1 has stated that there was no written contract between the
plaintiff and defendant No. 1. However, defendants No. 1, 2 and 4
have pleaded in their written statement plaintiff has not carried out
work as agreed between the parties and plaintiff has used inferior
quality of material. Further, it is also pleading of defendants No. 1, 2
and 4 that due to delay on the part of plaintiff, defendants have to
suffer loss. It is pertinent to note that defendants have not pleaded
how much loss they have caused nor there is suggestion to that effect
given to Mr. Sudhakar P.W.1. Even, defendants have not adduced any
evidence to support their contention. However, from this pleadings
inference can be drawn that there was agreement between the plaintiff
and defendants to carry out work.
12] Plaintiff has relied on certificate at Exh. 13 to prove that
he has carried out work for the value of Rs.1,50,00,000/- and
accordingly Tax Invoice at Exh.14 was issued to the defendants.
Plaintiff has proved said certificate at Exh. 13. However, as discussed
above, plaintiff has failed to prove that said certificate is issued by
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Architect appointed by the defendant No. 1. Merely raising Tax Invoice
at Exh. 14 is not sufficient, plaintiff has to prove that said Tax Invoice
is received by the defendants. However, there is nothing on record to
show that said Tax Invoice is received by the defendants. Further, it is
the contention of the plaintiff that out of said amount defendants have
made part payment of Rs.1,05,00,000/- and balance amount of
Rs. 72,75,000/-. It is pertinent to note that though Mr. Sudhakar P.W.1
has stated during cross-examination that they have filed bank
statement to show how much amount is due. However, plaintiff has
not filed either bank statement or extract of ledger account to show
that defendants have made part payment and balance amount is due
as contended by the plaintiff.
13] It is the contention of the plaintiff that vide email dated
12/07/2017 at Exh. 15 plaintiff had called upon defendants to pay
outstanding amount and vide reply to email defendants have admitted
their liability. Mr. Sudhakar P.W.1 during cross-examination has stated
that email at Exh. 15 was sent to defendants No. 2 and 3 and not to
defendant No.1. The said email is supported by Certificate under
section 65B(4) of Indian Evidence Act at Exh. 22. Further, Mr. Karan
Rohra had sent reply to said email. On perusing said email dated
12/07/2018 at Exh.15, it appears that plaintiff has called upon
defendants to release the payment and in reply it is contended that we
will release payment as soon as possible. It is pertinent to note that
neither plaintiff has mentioned any specific amount in said email at
Exh.15 nor in reply to said email any amount is mentioned.
Mr. Sudhakar P.W.1 during cross-examination has stated that as there
was good relation with defendants at that time therefore, amount was
not specified. If any amount was due against defendants plaintiff ought
to have mentioned said amount in email. Further, explanation given by
Mr. Sudhakar P.W.1 that at that time there were good relation with
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defendants therefore, amount was not specified cannot be said to be
proper and satisfactory explanation.
14] Further, Mr. Sudhakar P.W.1 has stated legal notice dated
01/08/2017 was issued to defendants by RPAD and called upon to
make outstanding payment and it is served on defendants. The office
copy of said notice is at Exh. 16 and postal receipts, AD card and Postal
track report are at Exh.17 to 19 respectively. The plaintiff cannot prove
liability merely on the basis of legal notice dated 01/08/2017 without
any other supporting documents. Thus, from entire evidence of
plaintiff, it appears that though it is brought on record that plaintiff
has carried out work for defendants however, plaintiff has failed to
prove that it had carried out work to the tune of Rs. 1,50,00,000/- at
the instance of the defendants. Further, plaintiff has failed to prove
how much amount if any, is due against the defendants. Thus, except
that work carried out by the plaintiff is certified by M/s. Dushyant
Ghatalia Architects Pvt. Ltd. Plaintiff has failed to prove that
M/s. Dushyant Ghatalia Architects Pvt. Ltd. was appointed by
defendant No.1. Further, plaintiff failed to prove that it is entitled for
amount as claimed with interest. Hence, I answer Issue No. 2 in
affirmative and Issues No. 1, 3 and 4 in the negative and in the result,
in answer to Issue No. 5, I proceed to pass following order.
O R D E R
1) Summary Suit No. 80 of 2018 is hereby dismissed.
2) No order as to costs.
3) The decree be drawn up accordingly.
(Sangram S.Shinde)
Ad-hoc Judge,
Dated: 22/08/2025 City Civil Court, Mazgaon, Mumbai.
Dictated on: 22/08/2025
Corrected & signed on: 02/09/2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
03/09/20255 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
22/08/2025
JUDGMENT/ORDER signed by P. O. on 02/09/2025
JUDGMENT/ORDER uploaded on 03/09/2025
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