Final Order 2

Order Details: Other
Pdf Text: MHCC010014622019
CNR NO. MHCC010014622019
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.46 OF 2019
SUMMARY SUIT NO.1007 OF 2016
M/s. Della Tecnica Interior Design Pvt. Ltd. ....Plaintiff.
V/s.
M/s. Clear Channel India Pvt. Ltd. (formerly
known as Clear channel Mumbai Pvt. Ltd.)
and Ors.
....Defendants.
Appearances:
Ld. Adv. Ms. Nidhi for Plaintiff.
Ld. Adv. Mr. Sameer Singh for defendants.	1.
CORAM : HER HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 5th January, 2023
ORDER
1. The present Summons for Judgment is taken out by the
plaintiff for grant of decree.
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2. It was submitted by the plaintiff that plaintiff is a Private
Limited Company engaged in the business of interior designing and
execution of turnkey project. The defendant is a Company registered
under the Companies Act, 1956. The defendant engaged the plaintiff to
carry out interior designing and execution of the interior work in their
office premises. As per the work order dated 12.06.2013 the
defendants gave details of the nature of work, to be carried out by the
plaintiff. The plaintiff started the work as per the work order and
completed the entire work and handed over the office premises to the
defendants. The total value of the work was Rs.70,23,010/. The
plaintiff raised the bill regarding the same. The defendants were
supposed to pay and clear the entire bills to the plaintiff immediately
and after handing over the possession of the premises but the
defendants failed and neglected to make the payment. The plaintiff
issued a notice to the defendants demanding to make payment of the
entire outstanding amount, however, the defendants purposely are not
making payment to the plaintiff. The plaintiff therefore, filed the
present suit. It was further submitted by the plaintiff that the
defendants filed false appearance to delay the suit. There are no valid
defence available to the defendants and therefore, Summons for
Judgment be made absolute.
2. The defendants filed their reply to the Summons for
Judgment and denied the contentions of the plaintiff. It was submitted
by the defendants that no cause of action accrued against the defendant
No.2 to 7. The defendants further submitted that on 12.06.2013
defendant No.1 issued a work order for providing designs and complete
execution of all interior furnishing of the office of defendant No.1.
However, the plaintiff neglected to complete the project within the
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period stipulated in the work order and therefore, the penalty of
Rs.10,000/ per day for delay was imposed. Also the plaintiff used sub
standard and inferior quality materials for carrying out the interior
work. Due to which defendant No.1 had to incur additional costs and
expenses for repairs and maintenance work carried out by various third
parties to maintain and repair the work done by plaintiff. The
defendant further submitted that due to delay in completion of work
the office premises of defendant No.1 remained unavailable for use for
a long period and the defendant had to incur additional costs. The
defendant further submitted that there are several triable issues in the
present suit and therefore, defendant must be granted unconditional
leave to defend the suit.
3. Heard the argument advanced by Learned Advocate for
plaintiff and defendant.
4. The Learned advocate for defendant relied upon
following citations:
1. 1963 Supreme Court Cases OnLine Guj 24:
AIR 1964 Guj 81: (1964)5 GLR 152 Gujarat
High Court, in the case of Saraswatiben
Lallubhai Parikh and another Vs. Kantilal
Purshottamdas, in Civil Revn. Application
No.934 of 1963, dated 10.10.1963.
2. 1991 Supp(1) Supreme Court Cases 191 in
the case of Raj Duggal Vs. Ramesh Kumar
Bansal in Civil Appeal No.4358 of 1990,
dated 06.08.1990.
3. 2001 SCC OnLine Bom 113: AIR 2001 Bom
397: (2001)4 Bom CR 151: (2001) 103 (3)
Bom LR 294: (2001) 3 AP LJ (DNC) 32
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Bombay High Court in the case of BOI
Finance Ltd. Vs. Liquidator of Siddharth
Engg. Pvt. Ltd. And others in Summons for
Judgment No.663 of 1994 in Suit No.2288
of 1993, dated 12.02.2001.
I have carefully gone through the observations laid down in
the ruling cited supra.
5. After going through the submission, it seems that there is
no dispute regarding the service availed by defendant No.1. It is the
admitted position that a work order dated 12.06.2013 was issued by
defendant No.1 to plaintiff and accordingly the plaintiff started his
work. According to the plaintiff the work was completed prior to the
time limit. However, the defendant denied the same. The plaintiff
relied upon the bills raised in respect of completion of the work. The
defendant denied that the work was completed and also raised
objection that the material used by the plaintiff was of inferior quality
and therefore, defendant was required to incur additional costs and
expenses and was also required to get the work completed from third
party. Considering the submissions raised by both the parties, it
appears that both the parties must be given an opportunity to prove
their case on merits.
6. As per the settled principle of law leave to defend can be
granted unconditionally in cases where the defendant satisfies the Court
that he has a substantial defence and there is likelihood to succeed.
Also in order to provide a fair and reasonable opportunity to the
defendant to defend himself, it is necessary to give leave to defend to
the defendant although a positively good defence is not raised. As per
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the observations made in the ruling cited supra, leave to defend can
also be granted subject to the condition imposed upon the defendant. It
seems that the issues raised by the defendant will require trial and also
in order to adjudicate the matter on merits, it would be appropriate to
grant leave to defend to the defendant. The contention raised by both
the parties will require defence on merits and therefore, it would be
appropriate to grant leave to defend to the defendant.
7. Considering the nature of the defence in order to secure the
interest of the plaintiff it would be appropriate to grant conditional
leave to defendant to defend suit. I, therefore, proceed to pass the
following order:
ORDER
1. Conditional leave is granted to defendant to defend the suit.
2. The defendant shall deposit an amount of Rs.5,00,000/ to be
paid to the plaintiff within 2 months from date of this order.
3. The defendant after payment of the amount of Rs.5,00,000/
will be at liberty to file written statement on record.
4. The Summons for Judgment No.46 of 2019 is disposed off
accordingly.
5. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 05012023 City Civil Court, Gr. MUMBAI
Dictated on : 05012023
Transcribed on : 06012023
checked on : 06012023
Signed on : 06012023
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
06.01.2023 at 04.53 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Smt.R.K.Kshirsagar
(COURT ROOM NO.13)
Date of pronouncement of
judgment/order
05.01.2023
Judgment/order signed by P.O. on 06.01.2023
Judgment/order uploaded on 06.01.2023
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