Interim Order 3

Order Details: Notice of Motion
Pdf Text: NM No. 1237 /2023
A.B.. Enterprise Vs. Ms. Real Order (Exh.13) 1 of 9
MHCC010034542023
City Civil and Sessions Court, Mazgaon Greater Mumbai
Court Room No. 31 – Commercial Court
Notice of Motion No. 1237 / 2023
in
Commercial Suit No. 468 / 2020
A. B. Enterprises & Anr. … Applicants
(Original Plaintiff)
IN THE MATTER BETWEEN
A. B. Enterprises & Anr. … Plaintiffs
Vs.
M/s. Real Agencies & Ors. … Defendants
Appearances :
Plaintiff : Adv. Ketan Parekh
Defendant Nos. 2,3,4, 6 & 7 : Adv. Usama Memon
Adv. Khan Farha
Adv. Tabish Jamadar
Defendant No. 5 : Adv. Hafeez Patanwala
Adv. Abbas Sayed
CORAM : PRASAD P. KULKARNI
COURT ROOM NO.31.
DATE : 02.09.2025
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ORDER
(Delivered on this 2nd day of September, 2025)
1. Plaintiff moved this Notice of Motion, which is supported by
an affidavit praying for Summary Judgment under Order XIII-A Rule 6
of the Code of Civil Procedure, 1908 (the Code, for short). Defendant
Nos. 2, 3, 4 and 6 filed reply to Notice of Motion vide Exh.14 and
defendant no. 5 vide Exh.15.
Crux of the Notice of Motion is as follows :
2. Plaintiff requested defendants for supply of certain goods. As
against that order, plaintiff made payment of Rs.25,00,000/- to
defendants. However, defendants failed to supply goods and not even
bothered to return the amount. So, plaintiff issued a legal notice
demanding the amount to which only defendant no. 5 replied.
Defendant no. 1 is the partnership firm of which remaining defendants
are partners.
3. Defendants vide letter Dt. 10.08.2019 have clearly admitted
their liability to pay Rs.25,00,000/- to plaintiff. In view of said clear
admission, oral evidence is not require to be recorded in this suit.
Hence, plaintiff is entitled for Summary Judgment.
4. Defendant Nos. 2,3,4 and 6 came with a case that they never
had any business transaction with plaintiff. Defendant nos. 2, 3 ,4 and 6
got retired from partnership firm. Even as per contention of plaintiff, he
paid amount to defendant nos. 1 & 5, therefore, there is no liability of
defendant nos. 2,3,4 and 6. Thus, these defendants prayed for dismissal
of Notice of Motion against them.
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5. Defendant no. 5 in his reply denied entire contention of
plaintiff and submits that this suit is an attempt to extort money from
defendants on the basis of concocted, untenable theory and misleading
facts. Defendant no. 5 by pointing out prayer clause nos. (a) and (b) in
Notice of Motion submits that contrary reliefs are claimed by plaintiff. If
all partners of defendant no. 1 are sued in this suit, then how there
could be a Summary Judgment only against defendant nos 1 and 5.
Thus, Notice of Motion is untenable.
6. Defendant no. 5 never had a transaction with plaintiff and
never received any amount. Oral evidence is require to be recorded on
the point whether defendant nos. 2,3,4 and 6 are still partners of
defendant no. 1 or they got retired. Letter on which plaintiff rely is a
forged document and cannot be acted upon. Facts and circumstances of
the suit are such that it cannot be decided summarily.
7. Defendant no. 5 submits that if plaintiff is experienced
businessman, then he would not have made 100% advance payment,
when he was not even knowing or doing business with defendant no. 1.
Even if calculations provided by plaintiff are considered to be true, still
Rs. 25,00,000/- cannot be 100% amount of the order placed. Thus,
defendant no. 5 prayed for dismissal of Notice of Motion.
8. I have heard Learned Senior Counsel Mr. Ketan Parekh
appearing on behalf of plaintiff, who submits that in view of express
admission by defendant no. 5 as per letter Dt. 10.08.2019, there is no
substantial defense, which defendants can raise. There are no triable
issues involved in this suit. Hence, Notice of Motion may be allowed
and Summary Judgment may be delivered.
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9. Per contra Learned Advocate Mr. Hafeez Patanwala appearing
on behalf of defendant no. 5 submits that selectively plaintiff has
claimed Summary Judgment only against defendant nos. 1 and 5.
However, such course of action is not legal because if firm is liable, all
partners would be liable as well. There is no documentary evidence
attached with the Notice of Motion. Defendant no. 5 has no concern at
all with plaintiff and he never had any transaction with plaintiff. Facts
of the case are such that it is necessary to record oral evidence of the
parties. Hence, Notice of Motion may be dismissed. Advocate for
defendant no. 5 relied on few authorities, which would be discussed in
reasoning part of this order.
10. Considering rival submissions, facts and circumstances of the
present case, following points arise for my determination and I have
recorded my findings for the reasons discussed as follows:
Sr.
No.
Points Findings
1 Whether plaintiff is entitled for Summary
Judgment under Order XIII-A Rule 6 of the
Code of Civil Procedure, 1908?
In the Negative.
2 What Order? Notice of Motion
is dismissed.
R E A S O N S
Reasons as to Point Nos. 1 & 2
11. Considering rival submissions, I have gone through record and
proceedings. Much was argued by both parties in respect of prayer
clause (a) and (b) of the Notice of Motion. As per Advocate for
defendant no. 5, these are contrary reliefs, which plaintiff are claiming.
So far as prayer clause (a) is concerned, plaintiff prayed to pass a
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Summary Judgment under Order XIII-A of the Code only against
defendant nos. 1 and 5. Whereas vide prayer clause (b), relief under
Order XIII-A Rule 7(1)(2) of the Code is claimed against all defendants.
12. Thus, apparent on the face of record plaintiff cannot blow hot
and cold. It is so because plaintiff has sued partnership firm and all its
partners are necessary party to the suit. So, as of now it is not known
whether defendant nos. 2, 3, 4, 6 and 7 really got retired from the
partnership firm or still they are partners of defendant no. 1. If firm is
liable, then all its partners would be liable for the acts done by partners
on behalf of the firm. Whether defendant nos. 2, 3, 4 , 6 and 7 are still
acting as a partner? What is status of defendant no. 5 in the partnership
firm? are such aspects for which oral evidence is required.
13. Summary Judgment in Commercial Suits are governed under
Order XIII-A of the Code. Grounds for Summary Judgment are
mentioned in Order XIII-A Rule 3 of the Code, which says that when
defendant has no real prospect of successfully defending the claim or
there is no other compelling reason why the claim should not be
disposed before recording of oral evidence, in such cases Summary
Judgment can be passed.
14. In this suit, defendant no. 5 has denied the fact that he ever
met plaintiff and had any business transaction with him. Advocate for
defendant no. 5 submits that despite of issuing legal notice defendant
no. 5 was unable to get any document from plaintiff, which could show
any conversation or transaction allegedly took place between plaintiff
and defendant no. 5. In this regard, plaintiff heavily relied on
photocopy of letter Dt. 10.08.2019. By pointing out this letter, Advocate
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for plaintiff submits that defendants accepted a fact that they received
Rs.25,00,000/- from plaintiff but were unable to supply goods.
Defendants also admitted that in case of not delivering goods before
17.08.2019, they will refund full amount to plaintiff.
15. I have gone through said photocopy wherein one Ashfaque
Suriya i.e. defendant no. 5 is shown as partner of Real Agencies and he
signed said letter. However, defendant no. 5 vehemently denied
genuineness of said letter. Thus, to prove or disprove said letter, it is
necessary to record evidence of both parties.
16. It is case of plaintiff that defendant no. 5 represented himself
as a partner fo defendant no. 1. This particular aspect will be governed
by doctrine of holding out under Section 28 of the Indian Partnership
Act, 1932. Whether really defendant no. 5 represented himself as a
partner of defendant no. 1 or not, again it being a fact, oral evidence is
required to prove or disprove it.
17. In support of Notice of Motion vide Exh.A, plaintiff filed letter
Dt. 10.08.2019 and on that basis claimed that plaintiff paid Rs.
25,00,000/- to defendant nos. 1 and 5. Whether, the so called amount
paid by plaintiff is really credited to the account of defendant nos. 1 and
/ or defendant no. 5 has to be verified, after giving an opportunity of
leading evidence to both parties. One has to keep in mind that as per
plaintiff only defendant no. 5 has replied notice issued by plaintiff and
specifically denied that he knows plaintiff and had any transaction with
him. These denials are very specific and issues involved in this suit are
such that it requires oral evidence.
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18. In support of his submission, Advocate for defendant no. 5 has
relied on following two rulings :-
1. Bright Enterprises Pvt. Ltd. & Anr. Vs. MJ Bizcraft LLP & Anr.
reported in 2017 SCC OnLine Del 6394
2. IDBI Trusteeship Services Ltd. Vs. Hubtown Ltd. reported in
(2017) 1 Supreme Court Cases 568.
19. I have gone through these Judgments. In case of IDBI (Supra)
Hon’ble Apex Court thoroughly discussed Order XXXVII of the Code i.e.
Summary Procedure. Present suit is a Commercial Suit and it would be
governed by Commercial Courts Act, 2015 and its procedure would be
subject to amendment in the Code, as applicable to Commercial
Disputes.
20. However, in case of IDBI (Supra), Hon’ble Apex Court in para
nos. 17.2 and 17.3 observed that if the defendant raises some triable
issues indicating that he has a fair or reasonable defence, although not a
positively good defence, the plaintiff is not entitled for Judgment. Same
analogy can be made applicable to Summary Judgment, which are
governed under Order XIII-A of the Code. In case of Bright (Supra),
Hon’ble Delhi High Court observed that Summary Judgment under
Order XIII-A of the Code is an exceptional provision and it is to be used
sparingly.
21. These two authorities upto great extent clarify that how the
Court should appreciate facts on record and to deal with Summary
Judgment. Considering rival submissions and peculiar facts involved in
this suit, only on the basis of photocopy of proforma invoice, this Court
is not inclined to allow this Notice of Motion when various triable issues
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are involved. Hence, I am not inclined to accept submissions made by
Learned Advocate for plaintiff. Considering the stand taken by
defendant no. 5, it cannot be said that defendant has no real prospect of
successfully defending the claim. Therefore, Notice of Motion deserves
to be dismissed. Hence, following order :
ORDER
1. Notice of Motion No. 1237 of 2023 is dismissed.
2. No order as to cost.
3. Order is dictated and pronounced in Open Court.
4. Record of Notice of Motion No. 1237 / 2023 shall form part
of Commercial Suit No. 468 / 2020.
Mumbai
Dated : 02.09.2025
(Prasad P. Kulkarni)
Judge, City Civil & Sessions Court,
Court Room No.31 - Commercial Court,
Mazgaon, Greater Mumbai
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
02.09.2025 5.20 p.m. Prachi Y. Potdar
Stenographer - Grade I
Name of the Judge HHJ Shri. Prasad. P. Kulkarni
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
02.09.2025
Judgment/order signed by P.O on 02.09.2025
Judgment/order uploaded on 02.09.2025
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