Final Order 1

Order Details: Other
Pdf Text: SJ 6 of 2018 .. J/1 ..
in Sum Suit 1092 of 2016
MHCC010003582018
EXH.
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON
SUMMONS FOR JUDGMENT NO.06 OF 2018
IN
SUIT NO.1092 OF 2016
Italab Private Limited ...Plaintiff.
Versus
BLA Power Private Limited ...Defendant.
Appearances:
Adv. Parekh For plaintiff.
Adv. Thanewala For defendant.
CORAM : her HONOUR JUDGE
N. B. LAVTE, (C.R.No.83)
DATED : 17th November, 2025
ORDER
The suit is filed for recovery of an amount of
Rs.50,06,265/- with 16% p.a on the principal amount of
Rs.36,35,668/-. In view of the proposal invited for sampling and
analysis of water at BLA Power Plant, plaintiff submitted his proposal
which was accepted. The defendant issued Work Order. The monthly
charges were Rs.3,92,260/- and the period was from 21.08.2012 to
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31.12.2013. The services were rendered and 7 invoices worth
Rs.45,87,371/- were raised for the period of 21.08.2012 to 31.12.2013.
The defendants paid Rs.20,00,000/- whereas, an amount of
Rs.25,87,371/- was due and by adding bill of July, 2013, an amount of
Rs.49,80,631/- was due and outstanding. By email dated 03.09.2013,
the amount was demanded wherein Rs.1,44,195/- was paid against
invoices No.ITA/13/04/0637. By paying the amount, defendants
admitted the liability of the remaining amount till July, 2013.
2. The remaining amount when demanded was not paid
instead issue of diesel was raised. The issue of silica formulation was
discussed. By several emails, the outstanding amount was demanded.
After repeated exchange of emails towards the outstanding amount of
Rs.41,32,767/- as on 09.05.2014, an amount of Rs.4,26,908/- after
deducting TDS was paid. Thus, an amount of Rs.36,35,668/- is
outstanding. However, in the meeting dated 09.05.2016, for the first
time dispute over, actual level of work done and fixed price of samples
was raised. By issuing frivolous debit note and seeking clarification of
revise bill, the outstanding amount was not paid. Hence, suit was filed
in which the present SJ is filed with prayer to make it absolute.
3. The defendants filed leave to defend and admitted the
proposal as well as issuance of Work Order to plaintiff. It is also
admitted that Rs.3,93,260/- was the fixed monthly charges. However, it
is their defence that, the plaintiff did not perform the entire scope of
work as stated in the Work Order. As per clause 1 of the Work Order, the
entire scope of work comprises 750 samples and tests of water per
month which plaintiff failed to carry out. Only fraction of the entire
scope of work was carried out for which necessary amounts were paid.
By email dated 21.07.2014, plaintiff was intimated about the account of
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all transactions alongwith reconciliation statement with list of invoices.
Plaintiff falsely contended that it was defendant’s responsibility to bear
the cost of diesel and oil for transportation of employees of plaintiff. No
any confirmation of the account was admitted by them. The amount
claimed in the plaint is not due and payable as the issue of entire scope
of work is disputed which requires evidence. Hence, prayed for
unconditional leave to defend the suit.
4. The plaintiff filed rejoinder and denied the reply filed to
leave to defend.
5. Heard Adv. Parekh for plaintiff at length and Adv. Thanewala for
defendant. The defendant also filed their written notes of arguments
vide Exh.10. According to Adv. Parekh, from August, 2012 to June,
2013 no any complaint regarding the dispute of amount or the Work
Order was raised. It was raised for the first time in the month of May,
2016. The invoices were duly issued showing the number of samplings
done and part payments were made. However, the remaining amount
inspite of repeated requests, mails and meetings was not paid. Later on,
dispute regarding incomplete and defective performance was raised.
The issue of diesel for transportation was also raised for the first time
though it is not in the Work Order. No any triable issues are raised to
grant them conditional or unconditional leave to defend the suit. Hence,
it is prayed that the SJ be made absolute.
6. Whereas, countering the argument, Adv. Thanewala
submitted that the work was not carried out as per the Work Order
which fact was brought to the notice by an e-mail dated 21.07.2014 and
also informing over payment. The invoices were not annexed to the
plaint. Plaintiffs are claiming inflated amount including diesel charges.
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There is no overdue payment as claimed. The suit is based on the Work
Order and invoice and considering the defendant’s incomplete and
defective performance, hence, they have good defence and raised triable
issue which entitle them for an unconditional leave to defend the suit.
To buttress the submission reliance is placed on the following
authorities;
1. Mechelec Engineers & Manufacturers vs. Basic Equipment
Corporation, (1976) 4 SCC 687.
2. Sunil Enterprises And Anr.. vs. SBI Commercial and
International Bank Ltd., (1998), 5 SCC 354.
7. From the pleadings of the parties and the documents filed
on record, it is not disputed that the proposal given by the plaintiff was
accepted for sampling and analysis of water at BLA Power Plant.
According to plaintiff, inspite of the work being satisfactorily carried out
from August, 2012 to July, 2013 part payment of the bills were received
and when the outstanding amount was demanded, false claim of defect
in service was raised. Admittedly, while filing the suit and till filing
summons for judgment, the invoices were not filed on record. However,
the invoices numbers, dates and amount due is mentioned in the e-mail
dated 13.08.2013. The defendants raised defence of incomplete and
defective performance in sampling as well as plaintiff failed to carry out
750 samples and tests in any of the months. The documents filed
alongwith the plaint and subsequently the invoice show the number of
samples carried out monthly by plaintiff.
8. From the proposal given to defendant the total sampling
was to be done was 660 p.m which defendants are claiming it to be 750
samples. In the Work Order the sampling is mentioned as 840, but, in
leave to defend it is claimed that there is typographical error about the
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number of sampling which is 750 and not 840. The copies of invoices
are filed by the defendants on record. The invoice dated 29.04.2014 for
the period April, 2013 to March, 2014 reveals there is no any mention
of the number of sample testing. Whereas, the following invoices shows
that period and number of testings. The invoice dated 08.07.2013 for
the period of April, 2013 to June, 2013 reveals 1274 sample testing,
invoice dated 01.08.2013 for the period 01.07.2013 to 30.07.2013
reveals 474 sample testing.
9. Whereas, invoice dated 30.03.2013 for the period
01.08.2012 to 31.08.2013 reveals 154 sample testing, invoice dated
30.03.2013 for the period 01.09.2012 to 30.09.2012 reveals 420 sample
testing, invoice dated 03.06.2013 for the period 01.12.2012 to
31.12.2012 reveals 1348 sample testing, invoice dated 02.07.2013 for
the period 01.01.2013 to 31.03.2013 reveals 1440 sample testing,
invoice dated 02.01.2014 for the period 01.12.2013 to 31.12.2013
reveals 434 sample testing. Thus, at this juncture, the minimum number
of sample testing per month as per the proposal was 750 which was not
carried out by the plaintiff. Therefore, the defence of less sample testing
is a probable defence which can be seen from the invoices. It was the
duty of the plaintiff to file the invoices which they failed, therefore,
there was suppression on the part of plaintiff.
10. As discussed above, the invoice dated 29.04.2014 for the
period of April, 2013 to March, 2014 do not show the number of sample
testing though bill of Rs.74,342/- is raised. Therefore, from the
documents more particularly the invoices filed by the defendants itself
shows the less number of sampling done by the plaintiff. Hence, at this
juncture, I do find substance in the defence raised. Therefore, the issue
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of the number of samplings done can be considered only when the
parties will lead their respective evidence.
11. In Mechelec and Sunil (supra), the issue of when leave to
defend should be granted is discussed in detail wherein, it was held
that:
The proposition laid down in these decisions may be summed up as
follows :
(a) If the defendant satisfies the court that he has a good defence to
the claim on merits, the defendant is entitled to unconditional leave to
defend.
(b) If the defendant raises a triable issue indicating that he has a fair
or bona fide or reasonable defence, although not a possibly good
defence, the defendant is entitled to unconditional leave to defend.
(c) If the defendant discloses such facts as may be deemed sufficient
to entitle him to defend, that is, if the affidavit discloses that at the
trial he may be able to establish a defence to the plaintiff’s claim, the
court may impose conditions at the time of granting to defend – the
conditions being as to time of trial or mode of trial but not as to
payment into court or furnishing security.
(d) If the defendant has no defence, or if the defence is sham or
illusory or practically moonshine, the defendant is not entitled to
leave to defend.
(e) If the defendant has no defence or the defence is illosory or sham
or practically moonshine, the court may show mercy to the defendant
by enabling him to try to prove a defence but at the same time protect
the plaintiff imposing the condition that the amount claimed should
be paid into court or otherwise secured.
12. If the observations in the above referred citations alongwith
the present set of facts are taken into consideration, I am of the view
that, the dispute involves in depth evidence and cannot be considered
merely on the basis of the documents filed on record. The defendants at
this juncture prove they have good defence and raised triable issue,
therefore, are entitled for an unconditional leave to defend the suit. In
view of the above discussion, I proceed to pass following order:-
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: O R D E R :
1. The Summons for Judgment No.06/2018 in Summary Suit
No.1092 of 2016 is dismissed.
2. The defendants are granted unconditional leave to defend the suit.
3. The defendants to file written statement within two months from
the date of this order.
4. The Summons for Judgment No.06/2018 is disposed off.
(N. B. Lavte)
Judge, (C.R.No.83)
Dt.: 17.11.2025 City Civil Court, Mazgaon,
MUMBAI MUMBAI
Dictated on : 17-11-2025
Transcribed on : 18-11-2025
checked on : 18-11-2025 (N. B. Lavte )
Signed on : 18-11-2025 Judge, (C.R.No.83)
City Civil Court, Mazgaon,
MUMBAI
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
18.11.2025 at 04.25 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
17.11.2025
Judgment/order signed by P.O. on 18.11.2025
Judgment/order uploaded on 18.11.2025
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