Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Presented on : 05-01-2019
Registered on : 05-01-2019
Decided on : 06-10-2021
Duration : 02 years, 09 months, 01 days
EXHIBIT2
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.05 OF 2019
(CNR NO.MHCC010001822019)
IN
SUMMARY SUIT NO. 782 OF 2018
P. KRISHNAMURTHY ]
Age 70 years, Indian Inhabitant ]
Resident of Mumbai, carrying on ]
Business under the name and style of]
Meena Advertisers having head ]
Office at New #66/Old #162, ]
Eldams Road, Teynampet, ]
Chennai 600 018. ]
Also having brand office at 401, ]
4th Floor, Manek Smruti Commercial ]
Premises Coop Society Limited, ]
Nehru Road, Vile Parle (East), ]
Mumbai – 400 057. ].. Plaintiff.
V/s.
1. M/S. ASIAN ADS ]
A Partnership Firm constituted ]
under the provision of Indian ]
Partnership Act, 1932, having its ]
registered address at 3F, Naaz ]
Building, Lamington Road, ]
Mumbai 400 004. ]
2. RAJESH JAISINGHANI ]
Aged about: Not known, ]
An Indian Inhabitant of ]
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3. NARESH JAISINGHANI ]
Aged about: Not known, ]
An Indian Inhabitant of Mumbai ]
a partner of M/s. Asian Ads, ]
A Partnership Firm constituted ]
under the provision of Indian ]
Partnership Act, 1932, both having ]
its registered address at 3F, Naaz ]
Building, Lamington Road, ]
Mumbai 400 004. ]..Defendants.
Advocate Mr. Dharmesh Jain I/b Pranjali Bhandari for the plaintiff.
None for the Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 6th OCTOBER, 2021
JUDGMENT
The Summons for Judgment is taken out by the plaintiff in
a suit for recovery of Rs.28,09,420/ along with interest on the amount
of Rs.17,69,719/– at the rate of 21% per annum from the date of
registration of the suit till realisation of the total decreetal amount.
2. It is the case of plaintiff that, plaintiff is engaged in the
business of advertising that needs to hire and rent display board spaces.
Defendant No. 1 is a partnership firm and other defendants are the
directors thereof. Defendants approached to plaintiff on several
occasions to acquire certain rights in respect of display boards for
advertising at the railway stations in and around Mumbai. Defendants
assured plaintiff to pay the charges as per agreement. As per the
agreement and mutual consensus, defendants placed orders for display
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of their advertise with plaintiff on several occasions during the financial
years 2014 – 15 and 2015 – 16. The orders were placed by email or
purchase orders. The details as provided by plaintiff are as under: –
Sr.
No.
P.O. Dated Period from Period To Station/s Amount
(in Rs.)
1. 27.03.2014 15.02.2015 14.03.2015 Churchgate 4,71,912/
2. 27.03.2014 15.01.2015 14.02.2015 Churchgate 4,71,912/
3. 27.03.2014 15.12.2014 14.01.2015 Churchgate 4,71,912/
4. 27.03.2014 15.11.2014 14.12.2014 Churchgate 4,71,912/
5. 23.08.2014 23.08.2013 22.09.2013 Andheri 12,000/
TOTAL 18,99,648/
3. It is the case of plaintiff that he provided services to
defendants accordingly and raised several invoices on the defendants
for different periods. The details of invoices are given by the plaintiff as
under: –
Sr.
No.
Invoice
No.
P.O. Dated Period from Period To Station/s Amount
(in Rs.)
1. 536 16.03.2015 15.02.2015 14.03.2015 Churchgat 4,71,912/
2. 491 27.03.2015 15.01.2015 14.02.2015 Churchgate 4,71,912/
3. 480 26.12.2014 15.12.2014 14.01.2015 Churchgate 4,71,912/
4. 467 15.11.2014 15.11.2014 14.12.2014 Churchgate 4,71,912/
5. 260 30.09.2013 23.08.2013 22.09.2013 Andheri 12,000/
TOTAL 18,99,648/
4. It is the case of plaintiff that defendants did not complain
about the quality and quantity of the services rendered by plaintiff.
They did not raise any dispute regarding the rates. The defendants on
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few occasions raised concerns with respect to lack of light at some of
the boards due to which their clients had allegedly refused to release
payments to them. However, that was not the responsibility of plaintiff.
It was the responsibility of the government authority from whom the
plaintiff acquired the rights. There was no default at the part of plaintiff
in payment of electricity bills. Plaintiff has further stated that he called
upon the defendants various times to pay the dues. It is the case of
plaintiff that defendants are avoiding the payment.
5. Plaintiff has further stated that after repeated requests,
defendants made a part payment of Rs.1,29,929/ on 27/10/2015. The
defendants issued certain cheques to plaintiff for payment, but all of
them were not honoured due to the instruction of defendants to stop
the payment. Plaintiff sent a later on 13/04/2017 and called the
defendants to pay the amount of Rs.17,69,719/–. Defendants denied
the pending amounts by their reply. However, they admitted the
amount of Rs.9,30,616/–. Ultimately, plaintiff issued a legal notice to
defendants on 10/07/2017 calling them to pay the amount along with
interest but the defendants replied the same on 10/07/2017 and denied
the claim. Hence, plaintiff was constrained to institute the present suit
for recovery of amount. Defendants appeared in the matter. Plaintiff
took out a summons for judgment. Defendants have filed a reply with
prayer to grant leave to defend the suit.
6. The present summons for judgement is not maintainable
because of the person who has filed the same is shown to be the
constituted attorney plaintiff but there is no document to that effect on
record. Therefore, the summons for judgement is filed by the
unauthorised person and is not maintainable at all.
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7. The suit is not maintainable as a summary suit and
therefore, it is liable to be dismissed with costs. Defendants have
further stated that the claim of plaintiff is barred by limitation.
Defendants are not liable to pay any amount to plaintiff. Plaintiff has
not come with clean hands before the court. The invoices of plaintiff
cannot constitute a written contract between the parties and bind the
defendants. Defendants never accepted any invoice on which plaintiff is
relying upon.
8. Defendants have further stated that the plaintiff failed to
perform his services as agreed and many a times the display boards of
clients of defendants were disconnected by the plaintiff arbitrarily for
intermediate periods. Therefore, the clients of defendants refused to
pay them. The defendants have suffered huge financial losses and
reputation due to the act of plaintiff.
9. Defendants have further stated that the amount mentioned
in serial Nos. 4 and 5 of the table given by the plaintiff in the plaint are
time barred on their face. In fact, plaintiff is liable to pay damages to
the defendants. The plaintiff himself approached to various clients of
defendants and engaged them. Therefore, it is clear that plaintiff
deliberately and intentionally defaulted in the services to be rendered to
defendants to make the defendants to lose their clients. The defendant
has prayed for rejection of the summons to judgment and granting him
leave to defend the suit.
10. Considering the pleadings of the parties, documents on
record and submissions of both learned advocates, following points
arise for my determination and my findings to them are as stated below
for the following reasons.
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Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff is entitled to the
Summons for Judgment as prayed for?
In the
Negative
2 Whether the defendants are entitled to the
leave to defend the suit?
Partly In the
Affirmative
3 What Order ? As per final order
R E A S O N S
AS TO POINT NOS.1 TO 3:
11. All these points are related to each other and hence they
are discussed at once to avoid the repetition.
12. It is the case of plaintiff that he rendered his services to
defendants Nos. 1 to 3 on their request that is he provided space for
advertising board on the various railway stations to defendants. Plaintiff
has stated that the services were rendered on the order placed by
defendants on email and by purchase order. Plaintiff has produced on
record a purchase order for 6 glow signs at Churchgate railway station
at the rate of Rs.70,000/– per per month for the period of 12 months
commencing from 15/03/2014. Plaintiff has produced on record the
invoices dated 16/03/2015, 17/01/2015, 26/12/2014, 15/11/2014
and 30/09/2013. The first 4 invoices are pertaining to the purchase
order dated 27/03/2014 whereas the last one is pertaining to the
purchase order dated 23/08/2013.
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13. Plaintiff has produced on record various emails exchanged
regarding payment of outstanding dues. Plaintiff has produced on
record at page No. 34 of the compilation, a letter issued by defendants
to plaintiff in reply to his letter dated 13/04/2017. In the said letter,
the defendants have admitted that they are liable to pay the amount of
Rs.9,30,616/–. It is further communicated to plaintiff that the
defendants were put to loss due to lack of light on the advertise board.
14. Plaintiff issued a legal notice to defendant on 10/07/2017
which was replied by defendants on 19/07/2017. The fact that
defendants are ready to pay the amount of Rs.9,43,616/– out of the
total claim of the amount is reiterated by the defendants. It is
important to note that in reply to the summons for judgement,
defendants have not stated this admitted amount anywhere and they
have come up with the defence of total denial.
15. It is the case of defendants that the services rendered by
plaintiff were not satisfactory as there was lack of light on the
advertising boards installed by the plaintiff. Plaintiff had stated in the
plaint that it was the responsibility of government authorities who
provided plaintiff the space for advertising boards. However, this
defence raised by the defendants is touching to the terms and
conditions of the contract and quality of services to be rendered by
plaintiff to defendants. Therefore, the detailed evidence is required to
prove whether there was any deficiency in the services of plaintiff and
whether the defendants were put to loss due to the lack of light on the
advertising boards. In my considered opinion, this is triable issue taken
up by the defendants which will make them entitled for leave to defend.
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16. Defendants have come up with a specific defence that the
invoices at serial Nos. 4 and 5 in the list given by the plaintiff in the
plaint are barred by limitation. Those invoices are pertaining to the
dates 15/11/2014 and 30/09/2013. The suit was instituted on
15/01/2018. In the meantime, it appears from the notice exchanged
that the defendants admitted part of the claim but not the entire claim
of plaintiff. Therefore, whether plaintiff is entitled to the entire claim
and if that is so then whether the claim regarding these 2 particular
invoices is barred by limitation is a point to be decided by the Court at
the trial. In my considered opinion, this is the second triable issue
raised by the defendants which makes them entitled for leave to defend.
The question of limitation is a mixed question of law and facts and
therefore evidence is required to determine the same.
17. Learned Advocate for the plaintiff relied upon judgment in
the case of Southern Sales and Services and Others Vs Saurmilch
Designs and Handles reported in (2008) 14 Supreme Court Cases
457. In that matter, the defence raised by the defendant was not found
to be sufficient to exonerate the defendant from the liability. Hence, he
was directed to deposit certain amount. In this matter also when certain
part of the claim is apparently admitted by the defendant, then they
have to deposit that much amount.
18. Learned Advocate for the plaintiff further relied upon the
judgment in the case of Sicom Ltd. Vs Prashant S. Tanna reported in
2004(2) Mh.L.J. 292. It is held that even if the claim is not quantified
by the defendant, then also the Summary Suit is maintainable. In this
matter the claim of plaintiff is quantified properly.
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19. In the circumstances above I have come to the conclusion
that the defendants have raised triable issues. Their defence is probable
defence and therefore they are entitled to lead evidence to prove the
same. Resultantly the defendants are entitled to the leave to defend.
The summons for judgement taken out by the plaintiff is liable to be
rejected.
20. The defendants have, though not admitted in the reply to
the summons for judgement, admitted in the letter issued by them to
plaintiff on 28/04/2017 and in their notice reply sent through their
advocate on 19/07/2017 that they are ready and willing to pay the
amount of Rs.9,43,616/– to plaintiff. Therefore, I have come to the
conclusion that the defendants are entitled to the leave to defend on
depositing the amount of Rs. 9,43,616/– in the court. Accordingly, I
answer point No. 1 in the negative, point No. 2 partly in the affirmative
and in answer to point number 3, I proceed to pass following order.
O R D E R
1. Summons for Judgment is rejected.
2. Leave to defend is granted to the defendants on
depositing the amount of rupees and 9,43,616/– in
the court within 60 days from the date of this order.
3. If the amount of Rs.9,43,616/ is deposited by
the defendants, then the registrar of the court is
directed to invest the same in the fixed deposit for
the period of one year in any nationalised bank and
the said period shall be extended for one year from
time to time till further orders of this Court.
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4. Cost will follow main cause.
5. The Summons for Judgment No.05 of 2019 is
disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 06.10.2021 Gr.Mumbai.
Dictated on: 06.10.2021
Typed on : 06.10.2021
Signed on : 06.10.2021.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
14.10.2021 AT 3.00 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
06/10/2021
Judgment/Order signed by P.O. on 06/10/2021
Judgment/Order uploaded on 14/14/2021
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