Final Order 1

Order Details: Other
Pdf Text: MHCC010008132019 Presented on 22/01/2019
Registered on 22/01/2019
Decided on 31/07/2025
Duration 06Y: 06M:09D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 31 OF 2019
IN
SUMMARY SUIT NO. 1149 OF 2015
Maharashtra State Road Development ]
Corporation Ltd., ( A corporation established ]
and Fully owned by the Goernment of Maharashra), ]
having its registered office at Nepean Sea Road, ]
Priyadarshini Park, Mumbai-400 036. ]...Plaintiff
Versus ]
M/s. Kumar Enterprises, Through its proprietor ]
Shri Rajkumar Pralhad Mane, whose office is situated ]
at B1602, Mansarovar, Neel Kanth heights, Pokhran ]
No.2, Thane (W). ]
And at Dada Patilwadi Road, B-Cabin Near Thane ]
Janta Bank, Thane (West). ]...Defendant
Appearance:-
Ld. Adv Chirag Moy with Adv. Keshav Tripathi for plaintiff.
Ld. Adv. Hanuman Tajane for defendant.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 31/07/2025.
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ORDER
( Dictated and pronounced in open Court)
01] The plaintiff has filed this summons for judgment against
defendant. Further, defendant has filed affidavit in reply to the
summons for judgment and resisted it and prayed for unconditional
leave to defend the suit. Plaintiff has filed rejoinder to reply for
summons for judgment and denied the contentions therein.
Brief facts of plaintiff’s case may be summarized as under :-
02] The plaintiff is the Maharashtra State Road Development
Corporation (in short MSRDC) a company incorporated under the
Companies Act, 1956 and the Government of Maharashtra Undertaking.
The plaintiff is engaged in business of improving and developing
integrated transport Infrastructure such as roads, expressways, bridges,
Flyovers, Sea link and other public utilities within State of Maharashtra.
The defendant is a proprietary firm who carried on business in the
name and style of Ms. Kumar Enterprises. The plaintiff has filed present
suit for recovery of Rs. 81,70,021/- from defendant on the basis of
agreement dated 20/07/2010 entered between the parties. Further, in
view of said contract defendant was given contract of
beautification/landscaping and maintenance with utilization of space
below flyover for display of advertisement/showrooms on 'Kalina Vakola
flyover' on Western Express Highway. It is further submitted that said
agreement was for a period of 9 years commencing from 01/08/2010
and defendant was supposed to pay annually Rs. 34,00,000/- towards
compensation. Defendant had agreed vide letter dated 26/05/2010
issued by plaintiff for enhancement by 15% per annum of previous year
compensation. Defendant vide letter dated 11/06/2010 made payment
of yearly upfront annual payment of Rs. 34,00,000/-, Rs. 17,00,000/-
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towards performance security and Rs.2,00,000/- towards security
deposit as per terms of agreement. Further, defendant had agreed to
pay total amount of Rs. 5,70,71,863/- for period of 9 years in yearly
installment. The second yearly installment was due on 02/07/2011
however, defendant delayed making payment and made payment of Rs.
39,10,000/- vide letter dated 07/03/2012. As per clause 28 of contract
defendant is liable to make payment of 18% p.a on delayed payment.
However, defendant failed to pay interest therefore, plaintiff issued
letter dated 12/06/2012 and called upon defendant to make payment
of Rs. 5,60,255/- towards interest. Further, plaintiff received directions
from Urban Development Department, State of Maharashtra that
parking of vehicles may not be allowed under flyovers and bridges. The
plaintiff vide meeting dated 25/08/2012 of Board of Directors resolved
to stop parking under flyover. Accordingly, plaintiff decided to foreclose
12 pay and park including that of defendant in meeting dated
22/12/2012 on the ground of security threat. The plaintiff vide letter
dated 28/01/2013 issued to defendant called upon to pay outstanding
amount of Rs. 70,56,454/-. There was no reply therefore, plaintiff vide
its Termination notice dated 26/03/2013 in pursuant to clause 44 of
agreement called upon defendant to vacate the space within 30 days
and hand over peaceful possession.
03] It is further submitted that defendant filed Writ Petition (L)
No. 1429/2013 before Hon'ble Bombay High Court which came to be
dismissed on 12/07/2013 with direction to the defendant to stop the
pay and park and handover possession of site to the plaintiff. However,
defendant did not take any steps to handover possession therefore,
plaintiff took forcible possession of site on 13/11/2013. Thereafter,
plaintiff vide letters dated 06/01/2014 and 17/01/2014 called upon
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defendant to pay outstanding amount of Rs. 81,70,021/- including
interest. It is the defence of defendant that he has suffered purported
losses and damages to the tune of Rs.22,00,00,000/- on account of
foreclosure of agreement. Further, defendant is relying on suit filed by
defendant alongwith his wife for damages before Hon'ble High Court.
However, such a claim is barred in view of clause 78 of agreement. On
the contrary, claim of plaintiff is admitted amount in view of agreement.
Thus, defendant has not raised any substantial defence nor raised
triable issues. Therefore, in view of ratio laid down in IDBI Trusteeship
Services Ltd. vs. Hubtown Limited, (2017) 1 SCC 568. Therefore,
defendant is not entitled for leave to defend the suit. Hence, summons
for judgment may be allowed.
04] On the other hand, it is submitted by the defendant that it
is not disputed plaintiff vide letters of acceptance dated 28/08/2009
and 26/05/2010 informed defendant that its offer has been accepted.
Further, as per said letters defendant had given offer of
Rs.5,70,71,863/- and Rs.1,01,78,100/-. Accordingly, defendant
complied said conditions of said letters and thereafter, agreement was
executed on 29/09/2009 and 30/07/2010 between plaintiff and
defendant. It is also not disputed that contract of said work will
commence from 01/08/2010 till 30/07/2019 for period of 9 years. The
clause No. 25 and 37 of said agreement deals with termination of
contract. Further, after execution of agreements, work order was issued
to the defendant. Thereafter, defendant submitted drawings of the
beautification of said flyovers to the office of plaintiff and after approval
of it, defendant started work for beautification. The total costs of the
beautification was Rs. 2,50,00,000/- in respect of Shri Rajkumar Mane
and Rs. 1,20,15,450/- in respect of his wife. The defendant also
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incurred a capital cost to Rs. 5,70,71,863/- and Rs. 1,01,78,100/- for
the same. The defendant was also burden with costs for running budget
and maintenance. Further, defendant was required to pay an amount of
Rs. 63,41,318/- averagely and Rs. 11,30,900/- per year which has been
paid by the defendant. The defendant had spent an amount of
Rs. 3,50,000/- and Rs. 1,20,000/- per month for maintenance of site till
the date of termination defendant has spent Rs.1,26,00,000/- and
Rs.57,60,000/-.Even,defendant had spent an amount of
Rs. 3,50,00,000/- for beautification and gardening, spacing, parking,
advertising etc. as per agreement. On intimation by the plaintiff about
termination defendant had addressed letter dated 14/12/2012 to
consider issues. However, without corresponding with defendant, the
plaintiff vide letter dated 26/03/2013 decided to foreclose contract and
called upon defendant to vacate site within 30 days. The said action of
the plaintiff was not proper therefore, defendant had challenged vide
Writ Petition (L) No. 1429/2013 and W.P. No. 4030/2013 before Hon'ble
High Court however, the said writ petition came to be dismissed on
20/06/2013. The defendant has challenged said order before Hon'ble
Apex Court vide SLPs which also came to be dismissed.
05] The plaintiff had foreclosed said contract without availing
other options. It has caused loss to the state. The space below flyover
was given for purposes of pay park activity and for display of
advertisement/showrooms. However, while foreclosure of contract
plaintiff has not split display of advertisement considering security
concern and it shows non application of mind. The defendant was ready
to take steps to secure the alleged security concerns however, plaintiff
has not considered the same. However, said spaces are remained open
and continuously neglected it and under nobodies control. The
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defendant was not given opportunity before foreclosure of contract. The
decision of foreclosure of contract is arbitrary and vaguely terminated.
The plaintiff has taken said decision to favour MEP contractor and
therefore, defendant is liable to compensate on the said ground. The
defendant vide letter dated 05/07/2013 had made representation to
MSRDC as per order of Hon'ble High Court dated 20/06/2013 and
12/07/2013 however, not considered. Further, due to cancellation of
said contract defendant has lost his income and profit which plaintiff is
bound to pay to the defendant. The plaintiff had taken different stand
in Writ Petition No. 98/2012 filed by M/s. India Bulls Real Estate Ltd.
And Others, as point of security was not raised. The defendant had
taken inspection of the various flyovers in various areas in the year
2010 to find out factual position as to availability of parking within 200
m. The plaintiff had taken stand as per GR dated 26/07/2008 however,
not considered fresh GR dated 17/08/2009 having been passed which
diametrically changed the scenario. The plaintiff had hidden
information available with them as addressed by the police station and
not disclosed before High Court. The defendant has incurred huge
expenses and work was also completed and accordingly defendant
issued letter dated 19/05/2011 to the plaintiff. The Government has
passed resolution in 151th meeting dated 09/12/2015 that the court
should be informed regarding the decision of restoring the pay and park
scheme. The letter dated 11/01/2016 would indicate the total
worthlessness of the stance adopted by the plaintiff. The estimated
income from the said parking to the defendant was Rs. 20,00,000/- per
month approximately. The defendant restricts claim against the plaintiff
for loss of income from business from the said parking as
Rs.22,00,00,000/-. The defendant being deprived from business of
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parking. The defendant had issued notice dated 18/05/2016 to the
plaintiff before filing suit and plaintiff has denied the claim vide reply
dated 16/06/2016 and 20/06/2016. The defendant is entitled for said
amount of Rs. 22,00,00,000/- with interest at the rate of 18% p.a. It is
further submitted that defendant has filed commercial suit
No. 214/2017 for damages against the plaintiff before Hon'ble High
Court, due to illegal acts of the plaintiff. Further, plaintiff has filed this
suit and summons for judgment only to extract money from defendant.
The summons for judgment is not maintainable under Order 37 of Civil
Procedure Code. The defendant has raised substantial defence and
triable issues therefore, defendant is liable for unconditional leave to
defend the suit. Hence, summons for judgment may be dismissed with
costs.
06] Perused Summons for Judgment, reply of the defendant,
rejoinder by the plaintiff to the reply of the defendant and documents
on record. I have gone through case law cited on behalf of the plaintiff.
Heard both the parties. On perusing contentions of both the parties, it
appears that it is not disputed that the plaintiff had invited tender on
24/07/2009 for work of beautification/landscaping and maintenance
thereof with utilization of space below flyover for display of
advertisement/showrooms on Kalina Vakola flyover on Western Express
Highway for a period of 9 years (Exh. A). Further, it is also not disputed
that defendant had submitted its bid to the plaintiff and offered to pay
to the plaintiff licensee fees pf Rs. 34,00,000/- for first year of contract
and yearly enhancement by 15% of last year compensation (Exh. B).
The plaintiff accepted said bid of defendant vide letter of acceptance
dated 26/05/2010 (Exh. C). Defendant made payment vide letter dated
11/06/2010 (Exh. D)as per letter dated 26/05/2010 and after
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depositing necessary amount an agreement was executed between
plaintiff and defendant on 20/07/2010 (Exh. E). As per said agreement,
period of 9 years commencing from 01/08/2010 till 31/07/2019 for
total amount of Rs. 5,70,71,863/- for period of 9 years in yearly
installments. It is pertinent to note that defendant has not disputed said
fact.
07] As per plaintiff, the second yearly installment was due on
02/07/2011, however, defendant delayed making payment and made
payment of Rs. 39,10,000/- vide letter dated 07/03/2012 (Exh. H). It is
the contention of the plaintiff that as per Clause 28 of contract
defendant is liable to make payment of 18% p.a on delayed payment.
However, defendant failed to pay interest therefore, plaintiff issued
letter dated 12/06/2012 (Exh. I) and called upon defendant to make
payment of Rs. 5,60,255/- towards interest. Defendant has admitted
receipt of said letter however, denied the contents. On perusing
Clause 28 of agreement dated 20/07/2010 (Exh. E), it appears that
plaintiff is entitle for interest on delayed payment. As defendant did not
made payment as per letter dated 12/06/2012, plaintiff issued another
letter dated 24/07/2012 (Exh. L) and called upon to make the payment
of outstanding amount.
08] It is the contention of plaintiff that as per directions
received on 04/08/2008 from Urban Development Department, State of
Maharashtra that parking of vehicles may not be allowed under flyovers
and bridges. It appears that plaintiff after having correspondence with
various departments finally Board of Directors of plaintiff on
25/07/2011 decided to stop usage of pay and park scheme under
flyovers in Mumbai, Navi Mumbai and Thane. The plaintiff vide
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meeting dated 25/08/2012 of Board of Directors resolved to stop
parking under flyover. Accordingly, plaintiff decided to foreclose 12 pay
and park including that of defendant in meeting dated 22/12/2012 on
the ground of security threat. Further, as defendant failed to clear
outstanding amount the plaintiff vide letter dated 28/01/2013 (Exh. N)
called upon the defendant to pay outstanding amount of
Rs.70,56,454/-. Even, plaintiff vide its termination notice dated
26/03/2013 (Exh.O) in pursuant to clause 44 of agreement called upon
defendant to vacate the space within 30 days and hand over peaceful
possession.
09] It is the defence of defendant that on intimation by the
plaintiff about termination defendant had addressed letter dated
14/12/2012 (Exh.K annexed to reply) to consider issues. However,
without corresponding with defendant, the plaintiff vide letter dated
26/03/2013 decided to foreclose contract and called upon defendant to
vacate site within 30 days. Further, it is the defence of defendant that
the plaintiff had foreclosed said contract without availing other options.
Further, the space below flyover was given for purposes of pay park
activity and for display of advertisement/showrooms. However, while
foreclosure of contract plaintiff has not split display of advertisement
considering security concern and it shows non application of mind. The
defendant was ready to take steps to secure the alleged security
concerns however, plaintiff has not considered the same. However, the
defendant was not given opportunity before foreclosure of contract. The
decision of foreclosure of contract is arbitrary and vaguely terminated.
The plaintiff has taken said decision to favour MEP contractor and
therefore, defendant is liable to compensate on the said ground.
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10] It is pertinent to note that defendant had challenged the
said action of termination of contract on the ground it was not proper
vide Writ Petition (L) No. 1429/2013 (Exh. N1 annexed to reply) and
W.P. No. 4030/2013 (Exh. N2 annexed to reply) before Hon'ble High
Court. However, the said writ petition came to be dismissed on
20/06/2013. The defendant has challenged said order before Hon'ble
Apex Court vide SLPs which also came to be dismissed. Further, it is the
defence of defendant that said spaces are remained open and
continuously neglected it and under nobodies control. Further, due to
cancellation of said contract defendant has lost his income and profit
which plaintiff is bound to pay to the defendant. It is also defence of
defendant the plaintiff had taken different stand in Writ Petition
No. 98/2012 filed by M/s. India Bulls Real Estate Ltd. and others
(Exh. T annexed to reply), as point of security was not raised. Further,
the defendant had taken inspection of the various flyovers in various
areas in the year 2010 to find out factual position as to availability of
parking within 200 m. The plaintiff had taken stand as per GR dated
26/07/2008 (Exh. V annexed to reply) however, not considered fresh
GR dated 17/08/2009 having been passed which diametrically changed
the scenario. It is pertinent to note that defendant has not filed said GR
on record. The Government has passed resolution in 151th meeting
dated 09/12/2015 that the court should be informed regarding the
decision of restoring the pay and park scheme. The letter dated
11/01/2016 (Exh.AA annexed to reply) would indicate the total
worthlessness of the stance adopted by the plaintiff.
11] It is also defence of the defendant that he has incurred
huge expenses and work was also completed and accordingly defendant
issued letter dated 19/05/2011 (Exh.Z annexed to reply) to the
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plaintiff. The estimated income from the said parking to the defendant
was Rs. 20,00,000/- per month approximately. The defendant restricts
claim against the plaintiff for loss of income from business from the said
parking as Rs. 22,00,00,000/-. It is also defence of the defendant that
he being deprived from business of parking. The defendant had issued
notice dated 18/05/2016 (Exh. BB annexed to reply) to the plaintiff
before filing suit and plaintiff has denied the claim vide reply dated
16/06/2016 and 20/06/2016. The defendant is entitled for said
amount of Rs. 22,00,00,000/- with interest at the rate of 18% p.a. It is
also defence of the defendant that commercial suit No. 214/2017 is
filed for damages against the plaintiff before Hon'ble High Court, due to
illegal acts of the plaintiff. Further, it is also contention of the defendant
that the plaintiff has filed this suit and summons for judgment only to
extract money from defendant. The summons for judgment is not
maintainable under Order 37 of Civil Procedure Code. The defendant
has raised substantial defence and triable issues therefore, defendant is
liable for unconditional leave to defend the suit.
12] Thus, from submissions of defendant, it appears that only
defence taken is that termination of contract is arbitrary, he has
sustained loss and defendant has filed suit for damages against the
plaintiff and it is pending. It is pertinent to note that as per agreement
dated 20/07/2010 (Exh. E) defendant was liable to pay annual
compensation on time and failure defendant was liable to pay interest
as per Clause 28 of said agreement. It is not disputed that there is delay
in paying second installment and defendant has not paid amount of
interest. Further, as per Clause 44 of agreement dated 20/07/2010
(Exh. E) Corporation was entitle to terminate contract by giving 30 days
notice. Accordingly, plaintiff had given notice dated 26/03/2013. It is
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the defence of defendant that he has incurred the expenses and he has
filed suit for damages against plaintiff. As per defendant, agreement did
not allow the plaintiff to terminate contract any other ground except the
grounds mentioned in clauses 25.1 and 25.2. It is pertinent to note that
there no clause as '25.1 and 25.2'. However, the grounds which
defendant is referring are grounds of clauses 42.1 and 42.2 of said
agreement. Further, it it is not correct interpretation that except
grounds mentioned in clause 42.1 and 42.2, plaintiff cannot terminate
contract. On the contrary, grounds mentioned in clauses 42.1 and 42.2
are specific grounds for termination of contract. The defendant has also
referred to clause 37.1 and 37.2 in the said agreement however, said
clauses refers to 'safety security and protection of environment'. Further,
as per Clauses 25 and 78 of said agreement (Exh. E) contractor cannot
claim damages. Therefore, I am of the view that the defence raised by
the defendant is not substantial. However, defendant has raised triable
issue that action of termination was without giving opportunity. Further,
said contract was for pay and park as well as beautification, landscaping
and maintenance thereof and advertisement, showrooms. The plaintiff
might have terminate part of the contract i.e. pay and park on the
ground of security and part contract might have continued regarding
beautification,landscaping and maintenance thereof and advertisement,
showrooms. These issues required to be decided on merits after
adducing evidence. Therefore, it is necessary to grant leave to defend
the suit to the defendant. However, it would be proper to grant such
leave subject to payment of some amount at least 50% of principal
amount. The principal amount is Rs. 62,68,778/- as per particulars of
claim. Hence, I proceed to pass following order.
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ORDER
1) Summons for Judgment No.31/2019 in Summary Suit
No. 1149/2015 is disposed off as follows:
(a) Leave to defend the suit is granted to the defendant subject
to condition that he shall deposit 50% of principal amount
within 60 days from the date of this order.
(b) The defendant will be at liberty to file his written statement
on record within 30 days after depositing amount.
2) After depositing amount by the defendant, it be deposited in
fixed deposits in any Nationalized bank as per law till further
orders.
3) No order as to costs.
4) Summons for Judgment No.31/2019 is disposed off
accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai
Court Room No.81.
Date: 31/07/2025
Dictated on: 31/07/2025
Corrected & signed on: 31/07/2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
01/08/2025 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 31/07/2025
JUDGMENT/ORDER signed by P. O. on 31/07/2025
JUDGMENT/ORDER uploaded on 01/08/2025
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