Final Order 1

Order Details: Copy of Judgment
Pdf Text: SJ 57/2019 IN SUM.SUIT 631/2017 1
IN THE CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT 57 OF 2019
IN
SUMMARY SUIT NO. 631 of 2017
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
(CNR NO.: MHCC01-001819-2019)
M/s.Damani Shipping Pvt.Ltd.
Through its authorized signatory,
Mr.Ganesh Digambar Mayekar,
Office at 205/206, Varma Chambers,
11, Homji Street, Fort,
Mumbai-400 001, India. ...Plaintiff
Versus
M/s.Kinetic Engineering Limited
Kinetic Innovation Park,
D-1 Block, Plot No. 18/2,
MIDC Chinchwad,
Pune-411 019. ...Defendant
Appearances:-
Advocate Mr.S.M.Seegarla for the Plaintiff.
Advocate Mr.Prakash Changede for the Defendant.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 13th February 2020
J U D G M E N T
1. This is Summons for Judgment for recovery of Rs.34,70,475/-
(Rupees Thirty Four Lakhs Seventy Thousand Four Hundred and
Seventy Five Only) with Pendente Lite and future interest at the rate of
18% p.a..
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2. According to the plaintiff, it is a registered company carrying on
the business of Global Shipping and logistics services. On 30.11.1998,
the plaintiff and the defendant entered into a contract for clearance of
import consignments by Sea/Air. The same contract dtd.30.11.1998 was
amended on 05.06.1999. The contract was further amended on
24.01.2004. On the basis of the contract the plaintiff continued to
provide services to the defendant and the defendant used to pay on
regular basis. The defendant made last part payment on 23.04.2013
leaving outstanding balance amount of Rs.21,33,321/-. Vide e-mail
dtd.11.09.2015 and legal notice dtd.04.10.2016, the plaintiff asked the
defendant to pay the balance amount. However, the defendant did not
comply to the same. At the institution of the suit, the total amount due
and payable by the defendant was Rs.34,70,475/-, i.e. Rs.21,33,321/-
towards principal amount and Rs.13,37,154/- towards interest amount.
Therefore, the plaintiff claimed decree for recovery of said amount with
interest.
3. The defendant filed application for leave to defend contesting the
Summons for Judgment to which the plaintiff also filed reply and the
defendant thereupon filed rejoinder. The defendant admitted execution
of contract dtd.30.11.1998 and further amended contracts. The
defendant admitted that the plaintiff rendered its services. However,
according to the defendant the bills, invoices against which the
outstanding payment has been shown are of 5-10 yrs old. The same are
time barred. Thus, the suit is not within limitation. Further the suit is
based on ledger accounts. The plaintiff will have to prove the same
subjecting himself to the cross-examination. Therefore, summons for
judgment cannot be allowed. On these counts he requested to reject the
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summons for judgment and grant unconditional leave to defend.
4. Considering material on record and submissions made on behalf
of the parties points arise for determination alongwith my findings
thereon are as under:-
POINTS FINDINGS
1. Whether the plaintiff is entitled
to Summons for Judgment?
In the Negative
2. Whether the defendant is
entitled to Leave to defend?
If yes, whether conditional/
unconditional?
Unconditional leave
3. What order? As per final order.
REASONS
AS TO POINTS NO.1 to 3 :-
5. The Ld Advocate on behalf of the plaintiff argued that there has
been no dispute that contract was executed on 30.11.1998 and it was
amended from time to time. The defendant admitted last payment of
23.04.2013. Thus, the defendant admitted his liability. Therefore, he
requested to allow the summons for judgment.
6. On the other hand, Ld advocate on behalf of the defendant
argued that the invoices are from March 2008 till April 2011. The suit
filed in 2017 is beyond the period of limitation of 3 yrs. Thus, the suit is
not within limitation. There are many services rendered and therefore,
summary suit could not have been filed as the accounts will be required
to be settled. There was no agreement regarding the payment of
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interest. Therefore, he requested to grant unconditional leave to defend.
7. As far as the interest is concerned the plaintiff towards the past
interest (pre-suit interest) claimed amount of Rs.13,37,154/. The
plaintiff has also claimed pendente lite and future interest at the rate of
18% p.a.. However, the copies of contract as filed on record do not
show that there was any agreement regarding payment of interest by
the defendant. The bills as issued by the plaintiff also do not contain
any clause regarding the interest. Thus, it is clear that there was no
agreement regarding the payment of interest. Resultantly, the plaintiff
cannot claim any specified amount towards past interest in a summary
suit. To determine entitlement of the interest, in this background, it
requires an ordinary trial by framing issue regarding entitlement of
interest.
8. Regarding the limitation, the bills on record are in respect of the
period from year 2008 to 2011. Thus, the last service rendered is in the
year 2011. The present suit has been filed on 18.10.2016. The plaintiff
claims that the defendant has made last part payment on 23.04.2013.
Same fact is no doubt admitted. However, even if counted from
23.04.2013 the suit will not be within 3 yrs. Thus, apparently the
defense of limitation as putforth on behalf of the defendant is with
some substance. Thus, triable issues have been put forth on behalf of
the defendant. Resultantly, the plaintiff is not entitled to the Summons
for Judgment whereas the defendant is entitled to Unconditional Leave
to Defend. Hence, point No.1 is answered in the Negative whereas point
No.2 is answered as that the defendant is entitled to Unconditional
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leave. In answer to point No.3 order as follows is passed:
ORDER
1. The Summons for Judgment 57/2019 is rejected.
2. Unconditional leave to defend is granted to the defendant.
3. The defendant shall file written statement on or before
07.04.2020.
4. The registrar shall cause conversion of the suit to the appropriate
category and shall cause to assign the same to appropriate court by
following requisite process.
5. Summons for Judgment 57 of 2019 is disposed.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date: 13/02/2020 City Civil Court, Gr. Mumbai
Dictated on : 13/02/2020
Signed on : 15/02/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
21/02/2020 at 5.15p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 13/02/2020
Judgment/Order signed by P.O. on 15/02/2020
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Judgment/Order uploaded on 21/02/2020
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