Final Order 1

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MHCC010006502020
Presented on : 16/01/2020
Registered on : 16/01/2020
Decided on : 17/12/2021
Duration : Y M D
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BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
SUMMONS FOR JUDGMENT NO.08 OF 2020
IN
COMMERCIAL SUIT NO.486 OF 2021
(SUMMARY SUIT NO.1063 OF 2019)
M/s. Manak Steel,
A Registered Partnership firm
Under Indian Partnership Act, 1932.
Having Office at Shop No.10, Ground Floor,
14, Panchayat Wadi, Near Kabutar Khana,
107/103, Bhuleshwar, Mumbai400 002. ..Plaintiff
V/s
Indus Tower Limited,
Having Ofice at Skyline Icon,
3rd Floor, Near Mittal Industrial Estate,
AndheriKurla Road, Andheri(E),
Mumbai400 059.
And Registered office at
Bharti Crescent, 1, Nelson Mandela Road,
Vasant Kunj, PhaseII, New Delhi110070. ..Defendant
______________________________________________________
Ld. Advocate M.D. Mali for plaintiff.
Ld. Advocate Rahul S. Kolnoorkar for defendant.
______________________________________________________
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ORAL ORDER
(17th day of December, 2021)
Summons for Judgment seeks decree for an amount
of Rs.6,60,550/ alongwith future interest @ 18% p.a.
Briefly stated, plaintiff's case, is as under:
2. Plaintiff is a partnership firm. Plaintiff's firm is
having shop premises at Bhuleshwar, Mumbai. On 08/01/2015,
defendant company made a proposal for installation of
TeleCommunication Cellular Equipment in the plaintiff's
premises. Plaintiff and defendant entered into an agreement of
leave and license for the period from 23/01/2015 to 22/01/2020.
Said leave and license was executed on 10/06/2015. Defendant
paid Rs.1,26,301/ towards license fee for the period from
12/02/2015 to 30/09/2015. However, after 30/09/2015,
defendant did not pay license fee. Therefore, plaintiff issued
notice dated 30/01/2018 asking defendant to make payment of
license fee, but, defendant did not respond to the said notice.
Therefore, again on 18/07/2018, plaintiff sent notice through
advocate calling upon defendant to pay the arrears of license fee.
Thereafter, on 17/10/2018, plaintiff and defendant entered into a
settlement agreement. By the settlement agreement, defendant
agreed to pay a sum of Rs.4.30 lacs. Said amount was to be paid
within 15 days from 17/10/2018. However, defendant failed to
pay the amount of Rs.4.30 lacs as per settlement letter dated
17/10/2018. Plaintiff again sent notice dated 29/01/2019
asking defendant to make the payment. But, defendant failed to
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make the payment. Defendant does not have any defence. It has
caused appearance in order to delay passing of the decree. By
making these submissions, plaintiff prayed to pass the decree
forthwith.
3. Defendant, in pursuance to the writ of summons,
appeared as per Order 37 Rule 2 of C.P.C. Thereafter, plaintiff
has taken out summons for judgment.
Defendant's reply :
4. Defendant by filing reply affidavit strongly resisted
summons for judgment. It is submitted that suit is filed by
suppressing material facts. Plaintiff is a ‘licensor’ and defendant is
a ‘licensee’ as per the leave and license agreement executed
between parties. Plaintiff is seeking recovery of ‘license fee’. By
virtue of Sec.26 of Provincial Small Causes Court Act, this Court
has no jurisdiction to try and entertain the suit between ‘licensor’
and ‘licensee’. Plaintiff claims that defendant did not pay license
fee from 30/09/2015. Said license fee was payable on
01/10/2015. Plaintiff filed the suit on 29/08/2019 for recovery
of license fee. Suit is filed beyond the period of limitation. The
claim is barred by law of limitation. Suit claim is not covered u/o.
37 Rule 2 of C.P.C. By making these submissions, defendant
prayed to dismiss summons for judgment.
Oral submissions of plaintiff :
5. Ld. Counsel for plaintiff made following
submissions :
(a) Defendant and plaintiff entered into a leave and
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license agreement for the period from 23/01/2015 to
22/01/2020. The said agreement was duly registered. Defendant
paid license fee till 30/09/2015. However, defendant failed to
pay license fee after 30/09/2015. Plaintiff and defendant entered
into an agreement dated 17/10/2018. By virtue of this
agreement, defendant agreed to pay an amount of Rs.4.30 Lacs.
Said amount was not a license fee. Said leave and license
agreement was terminated on 17/10/2018. Status of plaintiff and
defendant, on the date of filing suit, is not of a ‘licensor’ and
‘licensee’ respectively. Suit is filed for the amount agreed to be
paid by defendant under agreement dated 17/10/2018, therefore,
suit would not fall under Sec.41 of Presidency Small Causes
Court, Act.
(b) Defendant raised the issue of limitation. By
settlement agreement dated 17/10/2018, defendant promised to
pay an amount of Rs.4.30 lacs. Said promise is covered u/s.
25(3) of The Indian Contract Act. To buttress this submission,
plaintiff relied upon following judicial pronouncements :
(i) Stirling Shipping V/s Sancoal Shipping Ltd.,
(LAWS[BOM]200918)
(ii) Dinesh B. Chokshi V/s Rahul Vasudeo
Bhatt(LAWS[BOM]20121007)
(iii) R.Madesh V/s M. Rathinam (Civil Suit No.250 of 2007
dated 11/02/2015)
(c) In case of Stirling Shipping (cited supra), defendant
therein executed the agreement unconditionally accepting liability
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to pay earnest money to plaintiff within limitation and suit was
filed within three years of the execution of the said agreement.
Hon’ble Bombay High Court pleased to hold that suit was filed
well within limitation.
(d) In case of Dinesh B. Chokshi (cited supra), Hon'ble
Bombay High Court pleased to hold that cheque drawn for
discharge of time barred debt or liability creates a promise which
becomes enforceable contract, it cannot be said that the cheque is
drawn in discharge of debt or liability which is not legally
enforceable.
(e) In case of R. Madesh V/s M. Rathinam (cited
supra), Hon'ble Madras High Court held when the
acknowledgment of liability, though made after the period of
limitation, satisfies the conditions laid down under Section 25(3)
of the Indian Contract Act, it would amount to a fresh contract in
the eye of law.
Defendant's oral submissions :
6. Ld. Counsel for defendant submits that suit is
between ‘licensor’ and ‘licensee’ for recovery of license fee.
Therefore, Small Causes Court is having jurisdiction to try and
entertain the suit as per Sec.41 of Presidency Small Causes Court
Act. He has also drawn attention of the Court towards settlement
agreement dated 17/10/2018, wherein it is mentioned that
defendant will pay license fee within 15 days. He further submits
that amount claimed in the suit is a ‘license fee’, therefore this
Court has no jurisdiction to try and entertain the suit.
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7. It is further submitted that as per plaintiff's
contention, defendant did not pay license fee after 30/09/2015.
Suit is filed on 29/08/2019. Thus, suit is not filed within
limitation. It is further submitted that letter dated 17/10/2018 is
not executed within three years from the date of default of
payment and therefore, it cannot be considered as an
acknowledgement in writing as per section 18 of The Limitation
Act. Suit relating to recovery of license fees or charges or rent is
exclusively within jurisdiction of Small Causes Court. Defendant
relied upon following judicial pronouncements :
(i) Neebha Kapoor V/s Jayantilal Khandwala & Ors, 2008
DGLS (SC) 94
(ii) Sanjog Sadanand Parab V/s B.P.Gharda & Co., & ors,
2012 (Supp) Bom. C.R.11
(iii) Alibag Nagar Parishad V/s D.D. Hajare, 2005(4) Bom.
C.R.258.
8. In case of Neebha Kapoor (cited supra), Hon’ble
Supreme Court pleased to hold that a decree in summary suit may
not be automatic and the Court can always refuse to exercise its
discretion for want of original documents.
9. In case of Alibag Nagar Parishad (cited supra),
plaintiff therein was seeking extension of limitation on the basis
of letter written by defendant therein to Collector seeking order
as to whether the amount should be paid or not. It was held that
said letter is in the nature of seeking advice from the Collector. It
does not constitute an acknowledgment in writing.
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10. Considered the arguments advanced on behalf of
both the sides. Defendant in its reply did not dispute execution of
the leave and license agreement. Defendant also did not dispute
execution of settlement agreement dated 17/10/2018. The
defence of the defendant is two fold viz. (i) suit is barred by law
of limitation and (ii) this court has no jurisdiction to try and
entertain the suit.
11. Defendant submits that letter dated 17/10/2018 is
not executed within three years from the date of default of
payment and therefore, it cannot be considered as an
acknowledgement in writing as per section 18 of The Limitation
Act.
12. As discussed supra, defendant did not dispute about
execution of agreement/letter dated 17/10/2018. In the said
agreement, it is specifically mentioned that defendant will pay the
license fee of Rs.4.30 lacs within 15 days. The letter dated
17/10/2018 contains a promise to pay outstanding amount,
therefore, it can be considered as a promise pay debt. Even
otherwise, as per the terms of the agreement, license fee was to
be paid half yearly in advance. Therefore, defendant’s entire
claim of arrears of rent would not be barred by law of limitation.
As per letter dated 17/10/2018, defendant promised to pay the
outstanding amount. It satisfies all the conditions laid down
u/s.25(3) of the Indian Contract Act and therefore, it can be made
the basis for recovery of the amount promised.
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13. Considering the issue of jurisdiction raised by the
defendant, it would be contextually relevant to refer here sec.41
of Presidency Small Cause Courts Act which runs as under :
Section 41 Suits or proceedings between licensers and
licensees or landlords and tenants for recovery of possession of
immovable property and license fees or rent, except to these to which
other Acts apply to lie in Small Cause Court:
(i) Notwithstanding anything contained elsewhere in this Act or
in any other law for the time being in force, but subject to the
provisions of subsection(2), the Court of Small Causes shall have
jurisdiction to entertain and try all suits and proceedings between
a licenser and licencee, or a landlord and tenant, relating to the
recovery of possession of any immovable property situated in
Greater Bombay, or relating to the recovery of the license fee or
charges or rent therefor, irrespective of the value of the subject
matter of such suits or proceedings.
14. Defendant submits that suit is between licensor and
licensee. Plaintiff is claiming recovery of license fee and
therefore, this Court has no jurisdiction to entertain and try the
suit. Per contra, plaintiff claims that suit is not for recovery of
license fee, but, it is for recovery of settlement amount as per
settlement agreement dated 17/10/2018.
15. Considering the rival contentions, a reference with
profit can be made to the settlement agreement dated
17/10/2018. As per clause no.(3) of the said agreement, parties
agreed to terminate the leave and license agreement. As per
clause no.(4) of the said agreement, parties mutually agreed upon
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full and final settlement amount of Rs.4.30 lacs. Defendant
agreed to pay this amount as a license fee to plaintiff within 15
days. Thus, it appears that defendant agreed to pay this amount
to plaintiff as arrears of the license fee. Reference to para no.13
of the plaint would also be relevant here. Plaintiff claimed
Rs.4.30 lacs as a settlement amount and a further sum of
Rs.1,72,500/ towards arrears of licence fees for the period from
18/10/2018 to 18/07/2019. Thus, from the averments made in
the plaint also, claim amount includes arrears of licence fee.
16. Defendant relied upon the case of Sanjog Parab
(cited supra). In this case, a reference was made to the Hon'ble
Bombay High Court as to whether the suit for recovery of security
deposit filed by licencer in Bombay would fall within the ambit of
term relating to recovery of license fee or charges or rent thereof
appearing u/s. 41(1) of Presidency Small Causes Court Act. It is
held that suit relating to recovery of license fees is exclusively
within the jurisdiction of Small Causes Court. It is further held
when the Court is hearing summons for judgment, question that
the Court is considering whether on the basis that is put up by the
defendants, the defendant is entitled to either unconditional leave
to defend or conditional leave to defend or the defendants is not
entitled to any leave to defend. No issues are to be decided by
the Court because no issue arise at this stage. The issues arise
only after written statement is filed by the defendants. When the
Court is considering the Summons for Judgment, what the court
is really considering is whether the defendants is to be permitted
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to file written statement or not?
17. In the case in hand, defendant raised the issue of
jurisdiction, however while deciding the Summons for Judgment,
Court is not expected to decide the said issue. The Court has to
see whether on the basis of contentions raised by defendant, he is
entitled for leave to defend or not. If entitled, then conditional
leave to defend or unconditional leave to defend.
18. Defendant raised the issue of jurisdiction. Defendant
raised the issue which entitles him leave to defend the suit.
However, facts which came on record unscathed, show that
defendant admitted liability to pay an amount of Rs.4.30 lacs by
letter dated 17/10/2018. As per second proviso to Order 37 Rule
3(5) of C.P.C, where part of the amount claimed by plaintiff is
admitted by defendant to be due from him, leave to defend the
suit would not be granted unless amount so admitted is to be due
is deposited by the defendant in Court. By letter dated
17/10/2018, defendant admitted it's liability to pay an amount of
Rs.4.30 lacs to plaintiff within 15 days. Said letter is accepted by
plaintiff. Therefore, defendant is entitled for leave to defend the
suit only after depositing the due amount. In the result, following
order:
ORDER
1. Defendant shall deposit a sum of Rs.4,30,000/(Rs.Four
Lacs Thirty Thousand only) in Court within a period of 8 weeks
from today. If this condition is compiled with, defendant is
granted leave to defend the suit and it shall file Written Statement
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within a period of 30 days from the date of deposit.
2. If aforesaid condition of the deposit is not followed by
defendant within stipulated time, plaintiff shall be at liberty to
apply for exparte decree against defendant.
3. There shall be no order as to costs.
4. S/J No.8/2020 is disposed of accordingly.
17/12/2021 S.U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 17/12/2021
Transcribed on : 18/12/2021
Signed on : 21/12/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
21/12/21 at 05.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
17/12/21
Judgment and order signed by P.O. 21/12/21
Judgment/order uploaded on 21/12/21
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