Final Order 1

Order Details: Other
Pdf Text: ..1.. Summons for Judgment No.26/2019
MHCC010006462019 Presented on : 17/01/2019
Registered on : 17/01/2019
Decided on : 25/09/2024
Duration : 05Y 08M 10D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
SUMMONS FOR JUDGMENT NO.26 OF 2019
(CNR NO.MHCC01-000646-2019)
IN
SUMMARY SUIT NO.1139 OF 2018
VIJAY BABURAO KULKARNI,
Indian Inhabitant, Occupation – Advocate,
having office at 201, Nimesh Industrial Premises
Co. Op. Society Limited, Bhoir Nagar, Vidyalay
Marg, Mulund (East), Mumbai – 400 081.
Mobile – 9920487117.
E-mail – vkassociates2008@yahoo.com.
]
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] ...PLAINTIFF
VERSUS
AMBALAPADI MAHABALA RAMANNA SHETTY,
Occupation – Business, Address – Ulhas Hotel, Near
Laxmi Temple, M. G. Road, Vijayapura – 586101,
Karnataka. [M]-94481 29568.
]
]
]
] ...DEFENDANT
Appearance :-
Plaintiff in person.
Learned Advocate G.K. Shambhu for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84
DATE : 25/09/2024.
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..2.. Summons for Judgment No.26/2019
O R D E R
1 This suit is filed for recovery of professional fees. Plaintiff
has come with the case that he is an advocate practicing in the Court of
Mumbai, having office at Mumbai. Defendant is a resident of Vijayapura
situated in Karnataka, having his property there. Plaintiff further came
with the case that his native place is Vijayapura, Karnataka and has
shifted to Mumbai and having relatives in Vijayapura, who owned
immovable property. Plaintiff was appearing on behalf of his uncle Mr.
Anand Joshi, in professional capacity before the Hon’ble Karnataka High
Court, Kalaburagi Bench in proceedings instituted against the
Commissioner, Municipal Corporation, Vijayapura and other officials of
Karnataka in the land acquisition case. He further contended that
defendant is one of the owner of such disputed property under the land
acquisition, who approached the plaintiff and engaged him as an
advocate for litigating the dispute with the Corporation and
Government of Karnataka, pertaining to the property acquired by the
Government which included exchanging correspondence with the
Government Official, meetings, telephonic conversations during the
course of dispute resolution. He further contended that at the time of
appointment, defendant has paid Rs.10,000/- in cash as an advance to
plaintiff. Plaintiff further contended that he fought the litigation as an
advocate of defendant and thus, succeeded in favour of defendant and
Government of Karnataka arrived with a Consent Terms with the
defendant and agreed to pay the compensation of Rs.63,88,798/- and
paid first installment. Thereafter, defendant on 22/09/2016 paid
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..3.. Summons for Judgment No.26/2019
Rs.1,90,000/- by way of part payment of professional fees to plaintiff
and requested to continue all required efforts till recovery of entire
compensation, thus, due to the professional efforts of plaintiff,
defendant succeeded to get huge compensation amount with penal
interest. Plaintiff sent two invoices as per the agreed terms and rates to
defendant towards professional fees for filing two caveat and fees of the
litigation. The invoices for filing two caveat of Rs.50,000/- and second
invoice of Rs.5,20,000/- after deducting amount of Rs.2,00,000/- paid
earlier, towards conducting the case proceeding. But defendant failed to
pay the amount and replied the covering letter with false contention
that defendant has paid his full and final fee to the tune of
Rs.2,00,000/- and denied the payment of Rs.5,20,000/-, thus, plaintiff
became constrained to file this suit for recovery of amount of invoices
alongwith interest.
2 In response to the writ of summons, defendant appeared,
thereafter, plaintiff took out instant summons for judgment and
defendant resisted the contention by filing reply and application for
leave to defend. It is the contention of defendant that the suit is barred
by the territorial jurisdiction. The entire case proceeding were
proceeded within the jurisdiction of Hon’ble Civil Court at Vijayapura,
Karnataka State. It is further contended that plaintiff has made
defendant to pay Rs.2,00,000/- which is an exorbitant amount. He also
contended that plaintiff alongwith his uncle Mr. Anand Joshi
approached defendant and requested to entrust the case to him which
was already effectively handled by local advocate, but considering the
close association with uncle of plaintiff, defendant has entrusted the
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..4.. Summons for Judgment No.26/2019
brief to the plaintiff. It is also contended by defendant that there was
absolutely no word or any kind of talks and or agreement with plaintiff
regarding professional fees and plaintiff has expressed his readiness to
accept normal and routine fees as paid by plaintiff and other property
losers at Vijayapura. It is the contention of defendant that plaintiff has
deliberately approached the Court with malafide intention to harass
defendant and with ulterior motive to cripple him and prayed for grant
of leave to defend the suit.
3 Heard rival parties at length. Both the parties have
submitted their written notes of argument in addition to oral
submissions.
4 Besides the payment of fees, the defence of defendant is of
two-fold, first is of territorial jurisdiction and the second about
maintainability of the suit as a summary suit. It is the contention of
defendant that entire litigation was pending before jurisdiction of
Vijayapura Court, therefore, the suit filed by plaintiff is not
maintainable before this Court. Secondly, it is contended that the
summary suit for recovery of professional fees is not maintainable.
Plaintiff is required to file a regular suit. The present contention of
plaintiff does not fall under the provision of Order XXXVII Rule 2 of
Code of Civil Procedure.
5 In order to substantiate the contention, plaintiff is relying
on the judgment passed by Hon’ble Madras High Court in case of Lucky
Electrical Stores, by partner Mahendra Kumar Shah and another Vs.
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..5.. Summons for Judgment No.26/2019
Ramesh Steel House, by partner Babulal reported in (1998) 1 MLJ 187.
This case is filed for recovery of amount under the credit bill. Thus, said
case is pertaining to the purchase of goods by defendant, in the facts
and circumstances of that particular case, leave was refused. Plaintiff
has also relied on the judgment passed by the Hon’ble Bombay High
Court in the case of Gokulprasad Poddar Vs. Ramrikhdas Parasrampuria
and Co. reported in AIR 1955 BOM 276. I have gone through this case,
it is an appeal against the decree passed by the Judge of City Civil Court
in a summary suit. In that case, summons for judgment was disposed of
by granting conditional leave to defend which was not complied and
decree was passed due to non-compliance of conditional order. There
was question of maintainability of summary suit as the suit was based
on 3 oral agreements. In the instant case, plaintiff is claiming recovery
of professional fees on the basis of invoices raised by him. There is no
averment regarding agreement between plaintiff and defendant
regrading payment of professional fees, thus, both the citations will not
be applicable to the instant case.
6 In the instant case, suit is basically based on professional
services rendered and the invoices raised by plaintiff against defendant.
Plaintiff is admitting the receipt of Rs.2,00,000/- as payment towards
professional fees and claiming that it is part payment and also
contended that defendant has replied to his invoices claiming it as full
and final payment towards the professional fees. Defendant is claiming
that plaintiff is extracting exorbitant fees and there is no agreement or
discussion about the payment of part fees and plaintiff has agreed to
accept normal fees. Thus, it is incumbent upon plaintiff to establish that
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..6.. Summons for Judgment No.26/2019
plaintiff and defendant have arrived on the payment of Rs.5,70,000/- in
addition to Rs.2,00,000/- already paid, as claimed by plaintiff. In such
case, it is necessary that the rival parties should adduce their evidence
to establish their contention. Besides this, there is serious issue raised
by defendant regarding professional fees as well as maintainability of
suit as a summary suit which also is a triable issue in this case.
7 I am fortified by the judgment passed in case of Braj Mohan
Garg Vs. Krishna Maruti Limited reported in (2023) 08 DEL CK 0362
passed by Hon’ble Delhi High Court, the suit was filed for recovery of
professional fees as a summary suit wherein the defendant has applied
for leave to defend, which was granted by the learned Trial Court.
When the matter went up to the Hon’ble Delhi High Court, after
examining the relevant provisions and opined that grant of
unconditional leave is a rule and refusal is an exception. The
observations made by the Hon’ble Delhi High Court is perfectly
applicable to the present case. In the instant case there is a serious
dispute regarding territorial jurisdiction of the Court and
maintainability as a summary suit. It is to note that plaintiff has come
with the admission that he has received the amount of Rs.2,00,000/-
towards professional fees as part payment, thus, in such circumstance, I
am of the view that it is a fit case to grant unconditional leave to
defendant to raise defence. Resultantly, I proceed to pass the following
order :-
ORDER
1. Summons for judgment No.26 of 2019 in Summary
Suit No.1139 of 2018, is hereby dismissed.
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..7.. Summons for Judgment No.26/2019
2. Summary Suit No.1139 of 2018 filed by plaintiff be
tried as regular suit.
3. Defendant is directed to file written statement within
stipulated period from the date of this order.
4. Summons for judgment is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Mazgaon
Mumbai
Date: 25/09/2024. Court Room No.84
Dictated on : 25/09/2024.
Transcribed on : 26/09/2024.
Signed by HHJ on : 27/09/2024.
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..8.. Summons for Judgment No.26/2019
“Certified to be true and correct copy of the original signed order”.
30/09/2024
at about 11.50 a.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge, Court
Room No.84, Mazgaon, Mumbai
Date of pronouncement of Order : 25/09/2024
Order signed by Hon'ble Judge on : 27/09/2024
Order uploaded on : 30/09/2024
at about 11.50 a.m.
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