Order 1

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Pdf Text: Summons for Judgment 21/18 1
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT NO. 21 OF 2018
IN
SUMMARY SUIT NO. 1468 OF 2017
(UNDER ORDER XXXVII OF THE CODE OF CIVIL PROCEDURE 1908)
CNR.NO.MHCC010017472018
1. Prakash Nagardas & Bros.
A Partnership firm,established under
Indian Partnership Act 1932
and having its registered office at
3032 Ahamadabad Street
Carnac Bunder, Near Gupta Bhavan
Iron Market, Mumbai400009.
2. Mr.Bharat Kanakia,
partner of Prakash Nagardas & Bros
having its office at 3032 Ahamadabad Street
Carnac Bunder, Near Gupta Bhavan
Iron Market, Mumbai400009. ...Plaintiff.
V/s.
1.Buhani Steels,
a proprieetorship firm of
late Mr.Aliasgar A Gheewala,
having its erstwhile office at
16, Hussain Mansion 2nd floor
Flat N.5, D.I.Marg, Byculla(E),
Mumbai 400027 and
presently at
Garnet Heights, 902, A Wing,Plot No.27A,
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Summons for Judgment 21/18 2
Dr.Maheshwari Road,Near Dongri Police
Station Sandhurst Road,Mumbai400009.
2. Hussain A Gheewala
Son and legal heir of the late proprietor
of the Burhani Steels, an Indian Inhabitant,
residing at Garnet Heights, 902, A Wing
Plot No.27A, Dr.Maheshwari Road,
Near Dongri Police Station Sandhurst Road,
Mumbai400009.
3. Nefisabai A Gheewala
widow and legal heir of the late
Proprietor of the Burhani Streets
an Indian Inhabitant, residing at
Garnet Heights, 902, A Wing,Plot No.27A,
Dr.Maheshwari Road,Near Dongri Police
Station Sandhurst Road,Mumbai400009.
4. Tasneem A Gheewala
daughter and legal heir of the late proprietor
of the Burhani Streets, an Indian Inhabitant,
residing at Garnet Heights, 902, A Wing,Plot No.27A,
Dr.Maheshwari Road,Near Dongri Police
Station Sandhurst Road,Mumbai400009.
5. Green World Construction
Pvt. Ltd.through its director
Mr.Firoze Shaikh, a company incorporated
under the Companies Act 1956, having
its registered office at
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Summons for Judgment 21/18 3
Rubberwala House, Opp.Agripada Police
Station, Mumbai 400011. ...Defendants.
Appearances:
Advocate Mr.Surve for the Plaintiff.
Advocate Mr.P.M.Bhatt for the Defendant No.2,3&4.
Advocate Mr.Suraj Almeda for Defendant No.5.
CORAM : HIS HONOUR JUDGE
M.S.LONE
(C.R.NO.28)
DATED : 10TH JULY 2019
O R D E R
This is summons for judgment with a prayer to decree the suit
and direct the defendants to jointly and severally pay the sum of
Rs.43,32,833/ with interest @ 21% p.a.
2. Heard Ld.counsel for plaintiff and Ld.counsel for defendant No.2
to 4 and Ld.counsel for defendant No.5.
3. From the material on record following points come for my
determination and my findings with reasons are as follows:
POINTS FINDINGS
1.Whether plaintiffs are entitled
for summons for judgment?
No
2. Whether defendants are entitled
for leave to defend, if yes whether
conditional or unconditional?
Yes conditional as per final order
3. What order? As per final order
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Summons for Judgment 21/18 4
REASONS
AS TO POINT NO.1 & 2
4. The Ld.counsel for plaintiff has submitted that the plaintiff is
dealing in TMP bars. Defendant No.1 is proprietory concern of one
Shri.Aliasgar, who passed away on 01/11/2017. Defendant No.2 to 4
are his legal heirs and defendant No.5 is builder. As per the order of
defendant No.1, plaintiff purchased TMT bars for total Rs. 8,93,750/
with Guardian Casting Pvt.Ltd. Further, as per directions of defendant
No.1 the said bars were delivered to defendant No.5. After some days
again on the purchase order of defendant No.1 plaintiff purchased TMT
bars amounting to Rs 9,00,732/ and delivered it to defendant No.5.
Again there was similar transaction and plaintiff has raised a bill of Rs.
43,32,833/ towards purchased of TMT bars and supplying it to
defendant No.5. Inspite of demand of the said amount defendants did
not pay ,hence, plaintiff has constrained to file this suit.
5. To support his arguments ld.counsel has relied upon various tax
invoices, delivery challans, gate pass, demand notice and statement of
claim.
6. Defendant No.2 to 4 has resisted this application by filing reply
and has taken objection that plaintiff firm is not registered. They have
denied that as per orders of defendant No.1 plaintiff has supplied TMT
bars to defendant No.5. They have taken up the defence that defendant
No.1 might have acted as commission agent in the whole transaction
and they denied the claim of plaintiff.
7. Defendant No.5 resisted this application by filing reply . Their
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Summons for Judgment 21/18 5
Ld.counsel has submitted that the claim of plaintiff is time barred and
there was no privity of contract between the defendants and plaintiff.
The gate pass which plaintiff claims to be of defendant No.5 is forged
and fabricated documents. They had admitted that defendant No.1 and
5 has received certain materials but they are not sure whether those
materials were same which plaintiff claims to be purchased by him. The
sum and substance of their defence is total denial.
8. From the record and arguments placed by both the sides it can be
seen that defendant No.5 have admitted about receipt of some material
from defendant No.1. It is the claim of plaintiff that those materials
were supplied by him through defendant No.1. As on today defendant
No.1 is not alive. His legal heirs defendant No.2 to 4 have denied the
liability therefore the triable issue in this case arises about the supply of
materials by plaintiff to defendants. Unless and until these issues are
decided by evidence the court cannot come to any conclusion as to the
credit of plaintiff and liabilities of defendants. Defendant No.5 had
admitted about supply of materials and there is no record to show that
they have made any payments. The leave to defendant to defendant
No.2 to 4 can be granted unconditional but to defendant No.5 it is to be
granted on condition of payment of Rs. 43,32,833/ Accordingly, point
No.1 is answer as 'No' and point No.2 is answer as 'Yes' unconditional
to defendant No.2 to 4 and condition of payment of Rs.43,32,833/ to
defendant No.5 and accordingly following order is passed.
ORDER
1. Summons for Judgment No.21/2018 stands rejected.
2. Defendant Nos.2 to 4 is granted unconditional leave to defend.
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3. Defendant No.5 is granted leave to defend subject to condition
that within 2 months from today they shall deposit amount of
Rs.43,32,833/(Rupees Forty Three Lacs, Thirty Two Thousand Eight
Hundred and Thirty Three only).
4. After payment of amount of Rs.43,32,833/(Rupees Forty Three
Lacs, Thirty Two Thousand Eight Hundred and Thirty Three only) as
ordered, the Registrar of the court is directed to take necessary steps to
convert the suit from summary to short cause.
5. On depositing the aforesaid amount of Rs.43,32,833/(Rupees
Forty Three Lacs, Thirty Two Thousand Eight Hundred and Thirty Three
only) Registrar is directed to invest the said amount in any nationalized
bank for initial period of one year and seek further directions of the
court as and when required in this respect.
6. Summons for Judgment is disposed of accordingly.
(M.S.LONE)
Judge,
Date: 10/07/2019 City Civil Court,Gr. Bombay
Dictated on : 10/07/2019
Transcribed on : 12/07/2019
Signed on : 16/07/2019
ERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
17/07/2019 at 3.40p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Shri.M.S.Lone
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
10/07/2019
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Judgment/Order signed by P.O. on 16/07/2019
Judgment/Order uploaded on 17/07/2019
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