Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Order in NM 228/19 in Summary Suit 683/18
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 228 OF 2019
IN
SUMMARY SUIT NO. 683 OF 2018
CNR NO. : MHCC010005972019
Naresh S. Jaisinghani …. Applicant
In the matter between
V. Krishnamurthy …. Plaintiff
V/s.
Naresh S. Jaisinghani …. Defendant
Appearance:
Shri. Mahendra Agvekar, Advocate for the plaintiff.
None for defendant.
CORAM : SMT. S.S. NAGUR,
JUDGE, (C.R.NO.04)
DATE : 18.11.2021
ORAL ORDER
(Dictated in open Court)
The Notice of Motion is filed by the defendant to dismiss
the suit as not maintainable under Order XXXVII of the Code of Civil
Procedure,1908. The Notice of Motion is supported by Affidavit of
Naresh Jaisinghani S/o. Shri. Sommumal Jaisinghani, the sole
proprietor of M/s. Mukhi Publicities. The defendant stated that the suit
is not maintainable. There was no such transaction with the plaintiff as
alleged in the plaint. There is no purchase order issued by the
defendant nor there is written agreement between the parties.
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Therefore, the suit is under Order XXXVII, is not maintainable. Hence,
prayed to allow the Notice of Motion.
2. The plaintiff filed reply through Affidavit of Mahesh Kamat,
Constituted Attorney of the plaintiff. The plaintiff denied the contents of
Notice of Motion in toto. The plaintiff stated that invoices are issued to
the defendant. The defendant has duly accepted the same and acted
upon the said invoices. The defendant has also made part payment
thereon. The defendant did not deny his liability nor disputed the part
payment made against the invoices. Hence, prayed to reject the Notice
of Motion.
3. Heard advocate Mahendra Agvekar for plaintiff. The
defendant remained absent, even after direction in the roznama to
argue the matter. Hence, the Notice of Motion is decided without
argument of the defendant by considering the contents of Notice of
Motion.
4. The plaintiff has filed the suit under Order XXXVII of Code
of Civil Procedure to recover the amount of Rs. 2,69,351/. The
transaction between the parties stated in the plaint is the display board
for advertising of the defendant business at Andheri Station, Mumbai.
The defendant approached the plaintiff for the same in and around the
financial year 20142015. The plaintiff has raised invoices which are
filed in the plaint. The plaintiff issued notice through his advocate on
16.11.2015 and 10.07.2017 for non payment of the amount.
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5. The defendant has filed affidavit in reply to the Summons
for Judgment cum application for leave to defend wherein the
defendant has stated that as per the arrangement between the plaintiff
and the defendant. The defendant had contracted with its clients, that it
shall display its advertisement at Andheri/Churchgate railway station
from the period 01.04.2015 to 31.03.2016. The plaintiff has undertaken
that it shall ensure that the advertisement of the defendant's clients
shall be displayed by the plaintiff but plaintiff failed to do so and
arbitrarily disconnected the display of defendant's client's advertisement
from 30.09.2015 onwards.
6. Advocate for plaintiff has relied on authority reported in
Olive Tree Trading Pvt. Ltd. Vs. F.LLI DE CECCO DI FILIPRO : 2018
(4) Mh.L.J. 629 that “the invoices contained the terms and conditions.
The defendants did not deny the acceptance of the invoices. The defendants
accepted delivery of the goods along with the invoice without any demur or
suggestion that they do not accept any of the terms whether pertaining to
the rate, price, quantity etc. The invoices must be treated as a written
contract and the suit based on such invoices is a suit based on the written
contract”. In the present facts also, the defendant is not denying that he
has not received the invoices but disputed the amount raised in the said
invoice on the ground that they are not liable to pay the amount, as the
plaintiff has disconnected the advertisement from 30.09.2015 onwards.
7. Considering the above facts on record, I hold that the suit
filed by the plaintiff under Order XXXVII of the Code of Civil Procedure
is maintainable. Hence, the Notice of Motion is not tenable and pass
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following order:
ORDER
1. The Notice of Motion is rejected.
2. No order as to costs.
3. Accordingly, the Notice of Motion is disposed of.
(SMT.S.S.Nagur)
Date :18/11/2021 Judge
City Civil Court,
Greater Mumbai.
Dictated on : 18.11.2021
Typed on : 18.11.2021
Pronounced on : 18.11.2021
Checked & Signed on : 22.11.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
25/11/2021 12.30 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.4)
Date of Pronouncement of
Judgment/Order.
18/11/2021
Judgment/order signed by P.O on 22/11/2021
Judgment/order uploaded on 25/11/2021
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