Final Order 1

Order Details: Other
Pdf Text: IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
SUMMONS FOR JUDGMENT NO. 3 OF 2018
IN
SUMMARY SUIT NO.3851 OF 2008
M/s. JAK Printers Private Limited
Company incorporated under the
Indian Companies Act, 1956 having its place of
business at JAK compound Daboji Konddeo
Cross Lane, Off. Dr. Babasaheb Ambedkar Marg,
Byculla(East), Mumbai- 400 027. ... Plaintiff
V/s.
Shree Gururaj Printery, a firm
Registered under the Indian Partnership Act,
1932, having its place of business at 23,
Municipal Industrial Estate Vallabhbhai Road,
Vile Parle (West), Mumbai- 400 056. ... Defendant
Appearance:-
Adv Sandeep Pawar for the Plaintiff present.
None for Defendant.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 13.1.2022
ORDER
(Dictated and pronounced in Open Court.)
1. The plaintiff has brought this Summons for Judgment thereby
directing the defendant to pay a sum of Rs.63,012/- with the interest
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@ 24% per annum as per the particulars of claim.
2. Perused the documents on record.
3. The plaintiff has taken out this summons for judgment
against the defendant on the ground that the defendants failed to make
full payment of two invoices for printing TATA Mobile Brochurs. It is
said that the plaintiffs are printers and defendants are engaged in the
business of printing. Two invoices respectively for Rs.1,800,90/- and
Rs.72,122/- were raised by the plaintiff aggregating to Rs.1,73,012/- for
the job done for defendants. The defendants made part payment of
Rs.1,10,000/- and the amount of Rs.63,012/- remains as outstanding
dues. Said amount is not paid by the defendants despite of the repeated
request made by the plaintiff. The interest amount is also not paid.
Hence, it is prayed that summons for judgment may be made absolute.
4. The defendants appeared on Summons for Judgment and
filed reply/leave to defend on the following grounds:-
i) No cause of action arose against the defendants.
ii) Suit is not maintainable as a summary suit as ingredients of
Order -XXXVII Rule -02 of the C.P.C are not attracted to the facts and
circumstances of the present suit.
iii) Entire and full communications between plaintiff and
defendant are suppressed by the plaintiff . The communications from
defendant to plaintiff clearly states that the bill amount itself in all three
bills dated 29.12.2004, 21.1.2005 and 5.4.2005 was disputed due to
difference in rates agreed and billed.
iv) The outstanding amount of Rs.63,012/- is denied by the
defendant on the ground that full and final settlement of the plaintiff’s
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claim were settled as mentioned in the letter dtd. 13.7.2007 and a sum
of Rs.13,581/- vide cheque dtd. 28.6.2007 bearing no. 788318 has been
paid in full satisfaction of plaintiff’s account.
v) Plaintiff had failed to take required action for almost 12 years .
The suit is bad for delay and latches.
5. I have gone through the leave to defend application moved
by . There are certain settled principles on he basis of which the leave to
defend application can be decided by the court. I would like to quote
the landmark authority on said principles. The Principles as to grant of
leave to defend in summary suit are curled out in IDBI Trusteeship
Services Ltd V/s. Hubtown Ltd reported in 2017 (1) SCC 568. The same
are reproduced here for the sake of convenience :-
“17. Accordingly, the principles stated in para 8 of Mechelec
case will now stand superseded, given the amendment of order 37 Rule
3 and the binding decision of four Judges in Milkhiram case, as
follows :
17.1 If the defendant satisfies the court that he has a substantial
defence, that is, a defence that is likely to succeed, the plaintiff is not
entitled to leave to sign judgment, and the defendant is entitled to
unconditional leave to defend the suit.
17.2 If the defendant raises triable issues indicating that he has
a fair or reasonable defence, the plaintiff is not entitled to sign
judgment, and the defendant is ordinarily entitled to unconditional
leave to defend.
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17.3 Even if the defendant raises triable issues, if a doubt is left
with the trial Judge about the defendant’s good faith, or the
genuineness of the triable issues, the trial Judge may impose conditions
both as to time or mode of trial, as well as payment into court or
furnishing security. Care must be taken to see that the object of the
provisions to assist expeditious disposal of commercial causes is not
defeated. Care must also be taken to see that such triable issues are not
shut out by unduly severe orders as to deposit or security.
17.4 If the defendant raises a defence which is plausible but
improbable, the trial Judge may impose conditions as to time or mode
of trial, as well as payment into court, or furnishing security. As such a
defence does not raise triable issues, conditions as to deposit or security
or both can extend to the entire principal sum together with such
interest as the court feels the justice of the case requires.
17.5 If the defendant has no substantial defence and / or raises
no genuine triable issues, and the court finds such defence to be
frivolous or vexatious, then leave to defend the suit shall be refused,
and the plaintiff is entitled to judgment forthwith.
17.6 If any part of the amount claimed by the plaintiff is
admitted by the defendant to be due from him, leave to defend the suit,
(even if triable issues or a substantial defence is raised), shall not be
granted unless the amount so admitted to be due is deposited by the
defendant in court.”
6. We have to analyse the present set of facts in order to
determine which principle is attracted here.
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7. I have perused the contents of the Plaint, leave to defend,
grounds made therein. It appears that the defendant has raised different
triable issues starting from cause of action to limitation. On perusal of
leave to defend moved by the defendants it transpires that they have
raised objection to the tenability of the suit and denied the suit claim in
toto. However, on perusal of leave of defend application, it appears that
there must be some transaction in between the parties. Everything is not
in air. There are many questions put forth by the parties. The questions
are whether any cause of action arose for the filing of the suit, whether
the provisions of Order XXXVII are attracted or not and whether
plaintiff is entitled for recovery or not. The submissions and contentions
made by the defendant in leave to defend application leads to the
inference that the defendants have plausible defence and the
controversy has to be decided on merit. Present case may come within
the preview of clause 17.2 of the authority of IDBI Trusteeship as cited
supra.
8. This Court neither intend to comment on the merits of the
case as this is not the stage of passing order on merit or appreciation of
evidence. But this case being a case based on contract between the
parties, it becomes necessary to assess the merits of case on the strength
of the averments and contentions raised by the parties and the
documents produced in support of said averments and contentions. 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 the amount claimed by
the plaintiff or not. The issues so raised can not be brushed aside on the
count of procedure of summary suit.
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9. In this background, I hold that the that defendant has
successfully 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.
10. In consequence, I hold that the Summons for Judgment is liable
to be dismissed. Hence, the following order is passed.
ORDER
1. Summons for Judgment No.3 of 2018 is dismissed.
2. Unconditional Leave to defend is granted to
defendant and the defendant is directed to file written
statement on record in Summary Suit No. 3851/08 within
four weeks from the date of passing of this order.
3. Costs in cause.
4. Summons for Judgment No.3/2018 is disposed off
accordingly.
Date:13.01.2022.
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Dictated on : 13.01.2022
Typed on : 13.01.2022
Signed on : 13.01.2022
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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SIGNED JUDGMENT/ORDER.”
13.01.2022 04.00 p.m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ A.H.KASHIKAR (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
13.01.2022.
JUDGMENT/ORDER signed by
P.O.on
13.01.2022.
JUDGMENT/ORDER uploaded on 13.01.2022.
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