Final Order 1

Order Details: Other
Pdf Text: Summons for Judgment No. 37/19 1 Order.
in Com.Suit No. 743/21.
MHCC010009282019
Presented on : 24-01-2019
Registered on : 24-01-2019
Decided on : 07-12-2021
Duration : 2 years, 10 months, 14 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
SUMMONS FOR JUDGMENT NO. 37 OF 2019
IN
COMMERCIAL SUIT NO. 743 OF 2021
(ORIGINAL SUMMARY SUIT NO. 1091 OF 2018)
Value Freight Mumbai Pvt. Ltd., )
503504, Sabari Samriddhi, Sion– Trombay )
Road, Maitri Park, Chembur, )
Mumbai – 400 071. )...Plaintiff
Versus
1. Transglobal Projects Middle East (FZE), )
M12, Mezzanine Floor, ACICO Business )
Park, Port Saeed, P.O. Box 52047, Dubai, )
U.A.E. )
2. Mr. Simon Duke, )
Representative of Transglobal Project )
Group, Having office at : )
M12, Mezzanaine Floor, ACICO Business )
Park, Port Saeed, P.O.Box 52047, Dubai, )
U.A.E. )
3. Mr. Gajendera Harekchand Golcha, )
Constituted Attorney of Transglobal )
Project Group, )
Having address at : )
303, Satellite Silver, AndheriKurla Road, )
Marol Naka, Andheri (East), )
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Summons for Judgment No. 37/19 2 Order.
in Com.Suit No. 743/21.
Mumbai – 400 059. (Deleted as per )
order in N/M No. 1153/2019) )
4. Mr. Abhijit Shetty, )
Transglobal Project Group, )
Having address at : )
303, Satellite Silver, Andheri Kurla Road, )
Marol Naka, Andheri (East), )
Mumbai – 400 059. (Deleted as per )
order in N/M No. 1152/2019) )...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 7th DECEMBER, 2021.
Shri K.P.Anilkumar a/w Adv. Amit Sapale, Advocate for the plaintiff.
Shri Nihal Shaikh, Advocate for the defendant.
ORDER
1. The plaintiff filed Summary Suit No. 1091/2018 for
recovery of Rs.50,58,452/ (principal amount of Rs.42,33,166/ plus
interest Rs.8,25,286/) along with interest at the rate of 18% p.a. on
principal amount from the date of filing of the suit till realization with
costs.
2. The plaintiff moved this Summons for Judgment on
24/01/2019. Subsequently, the suit is reregistered as a Commercial
Suit. Therefore, both suit numbers are clarified in the beginning on the
first page of this order. Perused summons for judgment, affidavit in
reply and affidavit in rejoinder. I have also gone through the suit
proceeding. Heard learned counsel Shri K.P.Anilkumar for the plaintiff
and learned counsel Shri Nihal Shaikh for the defendant.
3. The plaintiff is a private limited company carrying on
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Summons for Judgment No. 37/19 3 Order.
in Com.Suit No. 743/21.
business as a project and freight forwarders. Defendant no.1 is a
company incorporated in Dubai, U.A.E. and it has its office and business
establishment in India. Defendant no.2 is the representative of
defendant no.1. Names of defendants no.3 and 4 are deleted as per
order in Notice of Motion No. 1153/2019 and 1152/2019 respectively.
The defendants requested the plaintiff for transportation of two
transformers and accessories from F.C.A., Vadodara, India one set to
Nouakchott Port, Mauritania and second set to Dakar Port, Senegal with
specifications and requirements said in email dated 20/02/2017
(Exh.A). Accordingly, the plaintiff forwarded offer for land transport to
the defendants on 22/02/2017. After negotiation between the parties,
the plaintiff loaded two transformers and accessories and the shipment
on the vessel of Hoegh Lines nominated by the defendants on
18/04/2017. The plaintiff forwarded draft invoices for shipment for
confirmation on 18/05/2017 through email (Exh.D). The defendants
confirmed that they have passed invoices through email dated
11/06/2017 (Exh.E and F). On 15/06/2017, the plaintiff requested the
defendants for mutual profit share in respect of land transport and sea
passage done through Hoegh Lines. Accordingly, five invoices were
raised through emails dated 16/05/2017. Rs.30,000/ were deducted
from these invoices and receipt of the same was acknowledged by
defendant by email dated 18/06/2017 (Exh.I). The defendants
admitted liability to pay the sum in subsequent email conversation. On
the basis of these invoices, the plaintiff has filed the suit for recovery of
money with above referred prayers.
4. Learned counsel Shri K.P.Anilkumar for the plaintiff
reiterated his case in the plaint and submitted that the defendant
addressed a communication to the plaintiff stating that the delay in
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Summons for Judgment No. 37/19 4 Order.
in Com.Suit No. 743/21.
settling the outstanding was not intentional and the payment will be
done in due course and the defendants are trying to collect money from
their clients as per email dated 01/08/2017 (Exh.J). He further
submitted that the defendants agreed to pay the outstanding amount as
per email communication (Exh.J and K annexed with the plaint).
According to him, the defendants disputed liability in affidavit in reply,
but they did not dispute invoices. The power of attorney of the
defendants has given power of attorney to the person who has filed
affidavit in reply and it is not permissible. He submitted that delegate
cannot delegate. He further submitted that invoices are not returned on
the ground of delay and this is a fit case to allow summons for
judgment.
5. On the contrary, learned counsel Shri Nihal Shaikh for the
defendants submitted that the authority is given to Shri Golchha to
affidavit in reply on the basis of the board resolution. Defendant no.1 is
a subsidiary company of Transglobal Projects Ltd., U.K. (TGP). Natco
AG is also subsidiary company of TGP having office at Switzerland. The
plaintiff obliged to pay the amount of USD 222, 581.94 to Natco AG as
a detention charges for the vessel M/V Serser. The said detention
charges incurred due to late delivery of the consignment by the plaintiff
with delay of 27 days on 22/05/2017. A major casualty occurred
resulting in death of one lineman due to power shut down. Due to non
payment of detention charges, Natco AG had filed commercial Summary
Suit No. 540/18 [Natco AG Internationale Transporte V/s. Value Freight
(Mumbai) Pvt. Ltd. (Summons for Judgment No. 63/2018 in
Comm.Summary Suit No. 540/2018)] against the present plaintiff
before Hon'ble High Court for recovery of USD 222, 581.94. In the said
suit, leave to defend is given to the plaintiff as per order of Hon'ble
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Summons for Judgment No. 37/19 5 Order.
in Com.Suit No. 743/21.
High Court dated 21/11/2018. By pointing out these developments,
learned counsel Shri Nihal Shaikh further submitted that the present
suit is filed after institution of the said suit before Hon'ble High Court.
The defendants raised dispute in the year 2018 itself as per email
communication (Exh.K filed with the plaint). There is a partnership
agreement dated 10/08/2016 executed between the plaintiff and the
defendant no.1. Learned counsel Shri Nihal Shaikh submitted that
defendant no.1 reserved the right to set out and to withhold any other
claims or sums that the plaintiff or its associated companies owed to
defendant no.1 or its associated companies. According to him, there is
no case to allow summons for judgment and he prayed for dismissal of
summons for judgment. He submitted that unconditional leave to
defend may be given to the defendant.
6. On perusal of factual aspect of the present case, it appears
that two transformers and accessories were to be transported from
Vadodara, India to Nouakchott Port, Mauritania and Dakar Port,
Senegal. In the case before Hon'ble High Court (referred above), the
plaintiff (Natco AG) had nominated the defendant (the plaintiff in this
case) for transportation of a Reactor Dump Tank from the factory of
Lloyds Steel Industries Limited at Murbad to Nhava Sheva Port. It is
clear from the facts of the present case and those of the case pending
before Hon'ble High Court that both these case are based upon two
different sets of facts and two different causes of action. Present
defendants are trying to mix up both these matters on the basis of the
partnership agreement dated 10/08/2016. While doing so, the
defendants have not pointed out particular clauses of the partnership
agreement taking under its umbrella to subsidiary companies of the
plaintiff and defendant no.1. He has also not pointed out the clauses
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Summons for Judgment No. 37/19 6 Order.
in Com.Suit No. 743/21.
permitting defendant no.1 to withhold the payment due to liabilities of
the plaintiff towards defendant no.1’s subsidiary companies. In such
circumstances, filing of the suit by Natco AG against the present plaintiff
before Hon'ble High Court does not come in the way of considering the
claim of the plaintiff based upon totally different set of facts and cause
of action.
7. Contents in the plaint reveals that the plaintiff had played
his role by loading the transformers and accessories on the ship on
18/04/2017. Responsibility of voyage of the goods through sea passage
was taken by defendant no.1. Subsequently, the plaintiff negotiated
profit sharing with the defendants and forwarded five invoices to the
defendant through email on 16/06/2017. It is pertinent to note that
the defendants admitted liability to make payment in email dated
03/08/2017. Payments were freezed by the defendants as per email
dated 25/10/2017. All these events demonstrate that the plaintiff has
performed his part regarding transportation of goods and raised
invoices after consultation with the defendants by taking time of two
months. Then, the defendants admitted the liability after four months
from the date of performance of the duty by the plaintiff. In such
circumstances, the defendants cannot be allowed to state that they have
defence to counter the claim of the plaintiff by relying upon entirely
different transaction of the plaintiff with Natco AG. The plaintiff has
succeeded in establishing his claim with the help of documents and
admissions of the defendants. The defendants failed to disclose facts
sufficient to entitle him to defend the suit. Therefore, summons for
judgment is liable to be made absolute. For want of contractual interest
agreed between the parties, reasonable reduction in pendente lite and
post decree interest is required. Interest at the rate of 12% p.a. is just
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Summons for Judgment No. 37/19 7 Order.
in Com.Suit No. 743/21.
and reasonable. Costs of the suit is also liable to be imposed on
defendant No.1. Hence, I pass the following order :
ORDER
1. Summons for Judgment No. 37/2019 is made absolute in
terms of prayer clause (a).
2. Commercial Suit No. 743/2021 is partly decreed.
3. Defendant no.1 is directed to pay to the plaintiff principal
sum of USD 66766 @ $ 63.40 (i.e. Rs.42,33,166 principal
amount + interest Rs.8,25,286/ i.e. total Rs.50,58,452)
together with interest @ 12% p.a. on the principal amount
from the date of filing till the date of realization within
three months.
4. Defendant no.1 shall bear the costs of the suit.
5. Decree be drawn up accordingly.
6. Proceedings of Summons for Judgment No. 37/2019 are
closed.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
Date : 07/12/2021. Mumbai.
1. Dictated online on : 07/12/2021.
2. Signed on : 08/12/2021.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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Summons for Judgment No. 37/19 8 Order.
in Com.Suit No. 743/21.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
08/12/2021. 5.41 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 07/12/2021.
Judgment/Order signed by P.O. on 08/12/2021.
Judgment/Order uploaded on 08/12/2021.
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