Order 1

Order Details: Order below exhibit
Pdf Text: OBE 16 in Sum Su 989 of 2022 .. 1 ..
MHCC010002802020
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON
ORDER BELOW EXHIBIT 16
IN
SUMMARY SUIT NO.989 OF 2022
Tanaya Punit Agarwal ...plaintiffs.
Versus
Vertex Designs & Ors. ... Defendants.
Appearances:
Adv. Hemant Sharma For the plaintiffs.
Adv. Sneha Ramnathan For defendants.
CORAM : HIS HONOUR JUDGE
N. B. LAVTE, (C.R.No.83)
DATED : 8th May, 2026
ORAL ORDER
Perused application and reply Exh.17. By way of present
application, defendants are objecting conversion of the said suit from
Commercial Suit to Summary Suit. It is their contention that the suit
was filed as Commercial Suit which was objected by defendants by
moving Notice of Motion No.280/2022. The said Notice of Motion was
allowed on 14.11.2022, whereas, the Registrar was directed to assign
the suit to proper Court according to the nature of the suit. The
Registrar assigned the present suit under the category of Summary Suit
and listed the same before this Court. Present suit is not a Summary
Suit as earlier plaintiffs had filed the suit as Commercial Suit.
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02. By filing reply, the same is objected on the ground that the
suit was initially filed as a Summary Suit. However, the office treated it
as a Commercial Suit and Kachcha Commercial Suit number was given.
By order dated 18.12.2019, the predecessor held that it was rightly
considered as a Commercial Suit by giving Kachcha Commercial number
and direction was given to re-register it as a Commercial Suit. By filing
Notice of Motion No.2803/2022 defendants objected it. By order dated
14.11.2022 the Notice of Motion was allowed and the Registrar was
directed to assign the suit to proper Court. An amount of
Rs.17,00,000/- was given by NEFT/RTGS which was confirmed by
defendants by their letter dated 05.05.2017. Thus, requirement of
O.XXXVII, R.1(2)(b)(i) are satisfied. The present application is filed to
delay and protract the suit. Hence, dismissal of the application with
exemplary costs is prayed.
03. Both the sides filed their written synopsis filed Exh.19 and
Exh.20 respectively. The defendants also placed reliance on the
following authorities :
i. Atma Tube Products Ltd. vs. Steel Authority of India Ltd., 2001
SCC OnLine P & H 111.
ii. M. Yuvaraj vs. Adhisesha Rao,, C.R. P. (PD) No.2211 of 2020
dated 04.07.2022.
04. In the written notes of argument of defendants, it is
claimed that the suit is wrongly re-registered as Summary Suit. The
plaintiffs had altered the plaint by striking off the word ‘Summary’ with
‘Comm.’ The writ of summons was not issued in accordance with the
prescribed format under O.XXXVII. The writ of summons was taken out
and it cannot be taken as written statement as admission and denial is
already filed. Hence, it is prayed the suit be registered as a Regular Suit.
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05. Whereas, in the written synopsis, plaintiffs contended that
initially Summary Suit was filed, however, in view of the objection
raised the then predecessor by order dated 18.12.2019 converted to
Commercial Suit. In the Notice of Motion moved by defendants, it was
held that the suit do not falls within the category of Commercial Suit
and directed Registrar to assign it in proper Court. The amount was
paid by NEFT/RTGS and in view of the written acknowledgment, it falls
within category of Summary Suit as per O.XXXVII of C.P.C.
06. The record reveals suit was lodged on 06.01.2020 and
while lodging the Title Cause of the suit was Summary Suit and in para
14 of the plaint it was claimed that suit is based on acknowledgment
and subsequent correspondence, therefore, it falls within the ambit of
O.XXXVII R.2. However, it seems objection was raised by the Registrar
and Kachcha Commercial No.169/2019 was given. On same day, order
was passed by the then predecessor holding the objection raised was
proper and the suit was rightly given as Kachcha Commercial number.
Hence, directed that the suit be registered as a Commercial Suit.
07. The record further goes to show defendants appeared on
06.07.2022 and filed Notice of Motion No.2803/2022 to convert the
Commercial Suit to recovery suit. After reply was filed by an order
dated 14.11.2022 the Notice of Motion was allowed wherein the
Registrar, City Civil & Sessions Court was directed to assign the suit to
proper Court in which it ought to have been instituted. The record
further goes to show that in view of the said order, the suit was
registered as a Summary Suit and was re-numbered as Summary Suit
No.989/2022. Exception is taken by moving the present application.
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08. The main objection of the defendants is that in view of the
directions in Notice of Motion No.2803/2022, the suit ought to have
been registered as Regular Suit instead of Summary Suit and on this
point reliance is placed on the above two authorities. Perusal of the
plaint reveals the suit is based on two written acknowledgments which
are at Exh.A-1 and Exh.A-2 issued by defendant No.2 in favour of the
plaintiffs. On the said written acknowledgments, plaintiffs had initially
filed Summary Suit, however, as discussed above in view of the order
passed in Notice of Motion, the plaintiffs were left with no option scroll
out the word ‘Summary’ from the Cause Title of the suit though in para
14 of the plaint specific pleadings finds place that suit based on
acknowledgments comes within the ambit of O.XXXVII R.2 of C.P.C.
09. It is not disputed that it was because of the Notice of
Motion filed by defendants, again directions were given to re-register
the suit. Whether the present suit falls within the category of Summary
Suit, the Hon’ble Bombay High Court in
Jyotsna K. Walia vs. T. S.
Parekh & Co., 2007 (4) Mh.L.J. 517 wherein reference was made
before the full bench to decide whether a suit based on writing or a
receipt or an acknowledgment of liability is maintainable as a Summary
Suit. While deciding the said issue, the Hon’ble Full Bench held that, ‘A
Summary Suit is maintainable on acknowledgment, mere writings, or
receipts depending on the substance of the documents.’
10. In the present case in hand as discussed above, defendant
No.2 on behalf of defendant No.1 had issued two letters Exh.A-1 and
Exh.A-2. For ready reference the contents of the letter are reproduced :
Exh.A-1
To Whom so ever it may concern
This is to certify that Ms. Tanaya Agarwal has paid for and on
behalf of M/s. Vertex Designs a sum of Rs.10,70,000/- (Rupees Ten
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Lakhs Seventy Thousand Only) to M/s. Capital First Limited and
Rs.4,30,000.00 (Rupees Four Lakhs Thirty Thousand Only) to M/s.
Religare Finvest Limited respectively.
We the Partnership firm, M/s. Vertex Designs, do hereby state that
the said amount will be refunded to M/s. Tanaya Agarwal without
interest within three months from the date hereof.
Exh.A-2
To Whom so ever it may concern
This is to certify that Ms. Tanaya Enterprises Pvt. Ltd. has paid for
and on behalf of M/s. Vertex Designs a sum of Rs.2,00,000/-
(Rupees Two Lakhs Only) to M/s. Religare Finvest Limited.
We the Partnership firm, M/s. Vertex Designs, do hereby state that
the said amount will be refunded to M/s. Tanaya Agarwal without
interest within three months from the date hereof.
11. If the contents of the above two letters are gone through,
then at this juncture it goes to show that it is a written acknowledgment
in writing and as per the judgment of
Jyotsna Walia (supra), it falls
within the ambit of O.XXXVII R.2 of C.P.C. As regards the authorities
cited by defendants, in view of the judgment of Jyotsna Walia being
given by the larger bench, therefore, will have precedence over the
judgments cited by defendants. Thus, the suit is maintainable as
Summary Suit and there is no need to transfer the same to other Court
which is dealing with Regular Suit.
12. The defendants have already filed their written statement,
therefore, the suit would proceed as a Regular Suit, however, by moving
the present application, the progress of the suit was stalled from
14.12.2022. The suit is for recovery of an amount of Rs.17,00,000/- and
it was filed on 06.01.2020, however, in view of the objections raised by
defendants, the suit could not proceed. Therefore, while rejecting the
application heavy costs is necessary to be saddled upon the defendants.
In the result, I proceed to pass the following order:
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ORDER
1. The application (Exh.16) is rejected with costs of Rs.25,000/-.
2. The costs of Rs.25,000/- be paid to plaintiffs by next date
without fail.
3. The application is disposed of.
( N. B. Lavte)
Judge, (C.R.No.83)
Dt.: 08.05.2026. City Civil Court, Mazgaon,
MUMBAI MUMBAI
Dictated on : 08.05.2026.
Transcribed on : 08.05.2026.
checked on : 08.05.2026.
Signed on : 08.05.2026. ( N. B. Lavte )
Judge, (C.R.No.83)
City Civil Court, Mazgaon,
MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
08.05.2026 at 5.50 p.m.
UPLOAD DATE AND TIME (MANISHA SRINATH)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Shri N. B. Lavte
(COURT ROOM NO.83)
Date of pronouncement of
judgment/order
08.05.2026.
Judgment/order signed by P.O. on 08.05.2026.
Judgment/order uploaded on
due to close of cis.
08.05.2026.
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