Final Order 1

Order Details: Copy of Judgment
Pdf Text: SJ 61/2019 IN SUM.SUIT 1280/2018 1
IN THE CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT 61 OF 2019
IN
SUMMARY SUIT NO. 1280 of 2018
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
( CNR NO.: MHCC01-002149-2019)
M/s.Oasis Infrastructure Pvt.Ltd.
A Private Limited Company constituted
under Indian Companies Act 2013
having his Registered office at
B-120, Shrikant Chambers,
Near R.K.Studio, Sion Trombay Road,
Chembur, Mumbai-400071. India.
...Plaintiff
Versus
1. M/s. Extreme Engineering
a proprietary firm having its office at
7, Muktanand Society,Narmada Nagar,
Bharuch- 392 015
And
M/s. Extreme Engineering
423, 3rd floor, Orian Arcede,
Zadeshwar Road, Bharuch-392 015.
2. Deep Agrawat
Age: Adult, Occupation: Business
Proprietor of M/s.Extreme Engineering,
Bharuch- 392 015. ...Defendants
Appearances:-
Advocate Ms.Pooja Dhumal for the Plaintiff.
Advocate Ms.Sumi Soman for the Defendants.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 11th February 2020
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J U D G M E N T
1. This is Summons for Judgment for recovery of Rs.11,34,457/-
(Rupees Eleven Lakhs Thirty Four Thousand Four Hundred and Fifty
Seven Only) with Pendente Lite and future interest at the rate of 21%
p.a..
2. According to the plaintiff, it is a service provider doing business of
supply of cranes on hire basis. Defendant No.1 is a proprietary concern
whereas defendant No.2 is the proprietor of defendant No.1. The parties
entered into agreement vide work order bearing No. EXTREME
ENGINEERING/OIPL/12/2017-2018 dated 16/11/2017 by which the
defendants hired a crane at their work site from the plaintiff. The
defendants were to pay monthly charges of Rs.1,70,000/-. The
minimum hiring period was agreed to be 6 months once the crane
reaches the site. The mobilization and de-mobilization charges were
also agreed to be Rs.4,00,000/- each. However, it was agreed that if the
crane works for more than 6 months de-mobilization charges shall be
nil. Vide e-mail dated 20/11/2017 the plaintiff acknowledged receipt of
cheque of Rs.3,70,000/-and raised the mobilization invoice, to which
the defendants given the confirmation vide e-mail dated 01/12/2017.
The crane started working on 01/12/2017. The crane was de-hired on
28/05/2018, thus, the de-hiring was before conclusion of 6 months. As
such, the defendants were liable to pay de-mobilization charges of
Rs.4,00,000/-. The plaintiff raised the bills as per the details mentioned
in para 6 of the plaint. The outstanding, due and payable amount by
the defendants was Rs.10,58,344/-. The plaintiff vide reminder dated
26/06/2018 demanded the said amount. The defendants vide e-mails
dated 26/05/2018, 04/07/2018, 05/07/2018 replied that the
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outstanding dues are only of Rs.2,55,040.70. The plaintiff also issued
legal notice dated 14/08/2018, however, the defendants did not make
the payment. At the institution of the suit the due and payable amount
by the defendants was Rs.11,34,457/-, i.e Rs.10,58,344/- as principal
amount and Rs.76,113/- as amount towards interest at the rate of 21%
p.a.. Therefore, the plaintiff claimed recovery of said amount with the
interest thereon.
3. The defendants filed reply contesting the summons for judgment.
The defendants submitted that the suit is not within jurisdiction of this
court. It is contented that vide work order dated 15/11/2017 they were
awarded the contract by L & T to install pipes for 7.20 kms. at the rate
of Rs.3590/- per meter at Madhya Pradesh. To execute the said work
the crawler crane was required. The defendants had indicated to the
plaintiff their requirement for Hitachi K.H. 150-40 M.T. crawler crane as
well as about the time frame for the completion of the said project. The
crane was to work for 26 days in a month for 10 hours per day. It was
agreed that the crane will erect 6 pipes each day. There was mutual
understanding between the parties that the crane should reach the site
on 20/11/2017 and commence the work at the earliest. However, the
plaintiff failed to comply with it. The crawler crane reached the site on
27th November, it was assembled on 30th November and while unloading
the first pipe on same day the crane broke down and continued to
remain so till 01/12/2017. Thus, right from the inception the plaintiff
failed to adhere to the terms. Thereafter, also the crane broke down on
5th December and again on 8th December. Thus, there were repeated
break down of the crane. Consequently, the project was affected and
defendants had to seek extension from L & T company for completion of
the project on 16/12/2017. The defendants had intimated, by e-mail, to
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the plaintiff the effect of defective crane on the project. The crane
remained in break down state till 28/12/2017. Therefore, the image of
defendants was tarnished before the L & T and it also caused huge
financial loss to the defendants. On 29/12/2017, the plaintiff provided
tyre mounted crane as the defects in the crawler crane were not
rectified. However, the working phase of tyre mounted crane was low
then that of crawler crane which further affected the project. The
defendants, contended that due to defective and faulty crane provided
by the plaintiff the project was delayed and ultimately L & T cut shot
the contract from installation of pipes from 7.20 kms.to 3.5 kms. which
resulted into loss of Rs.12,66,552/- due to difference in the
performance capacity between tyre mountain crane and crawler crane.
The defendants also suffered loss of Rs. 38,59,968/- due to cut short of
the project by L & T. The crane was directed to be de-mobilized only
after a period of 6 months from the date of commencing of the work.
Therefore, the plaintiff cannot claim de-mobilization charges. Thus, the
defendants on these grounds requested to 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 to defend
3. What order? As per final order.
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R E A S O N S
AS TO POINTS NO.1 TO 3
5. The Ld. Advocate on behalf of the plaintiff argued that the
defendants admitted the agreement dated 16/11/2017 between the
parties. The execution of the work is also admitted. Thus, the liability
has been admitted. Therefore, he requested to allow the summons for
judgment.
6. On the other hand, the Ld.advocate on behalf of the defendants
argued that the crane had been hired for the work at Madhya Pradesh.
The defendants office is situated at Bharuch beyond the jurisdiction of
this court. Thus, this court has no jurisdiction to try and entertain the
suit. She argued that due to break down of the crane and supply of the
tyre mounted crane the work could not be effectively completed as
required. Resultantly, the defendants suffered financial loss. The crane
was at the site for 6 months. Therefore, the defendants are not liable to
pay the de-mobilization charges. All these contentions raised triable
issues. The defendants have substantial defence. Therefore, she
requested to grant unconditional leave to defend.
7. It is not disputed that the defendants hired crane machine from
the plaintiff vide agreement dated 16/11/2017. Admittedly, the work
has been executed at Madhya Pradesh. The defendants office is also
situated in Bharuch. However, the work order dated 16/11/2017 shows
that it was addressed and issued to the plaintiff at the address of
Mumbai. Once the work order was issued from the defendants office it
was accepted by the plaintiff from his office. The part of the
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negotiations and the formations of the contract took place at Mumbai.
Therefore this court has jurisdiction.
8. However, so far as defence that the defendants suffered financial
loss and the plaintiff did not adhere to the terms and conditions of the
contract, this court must note that the basic work order speaks that the
defendants had put the requirements of the Hitachi K.T.150 40 MT
Crawler Crane. Thus, the specification as put by the defendants in the
work order apparently shows that the defendants had insisted on
Hitachi Crawler Crane. Further the work order does not specify as to the
date from when work was to be started. The defendants contention is
that the crane was to reach the site on 20/11/2017. However, it
reached the site on 27/11/2017. Thus, the machine did not reach the
site as required by the defendants. Now whether there was such mutual
agreement between the parties is the matter of evidence. Further
contention of the defendants is that the crane, since inspection, went
into break down state. The operation-cum Hirer's Representative report
at page 28 with the plaint shows that the crane was in break down state
from 08/12/2017 till 22/01/2018. Thus, at this stage, there is
substance in the contention of the defendants that since inspection the
crawler crane went into break down state. The further reports also show
that the machine was in break down on 17/02/2018, 18/03/2018,
19/03/2018, 20/03/2018. The defendants in their reply elaborately
mentioned the actual work of the cranes during each of the months
from the December 2018 to May 2018. Now whether the crane
remained in the break down state as contented by the defendants is the
matter of evidence. However, at this stage, there is substance in the
contention of the defendants that the crane remained in break down
state for some period. Further whether due to the replacement of the
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crawler crane by hire mountain crane the defendants could not
effectively complete the project, whether L & T cut short the project and
whether the defendants suffered the loss are all these triable issues. The
copy of e-mail dated 16/12/2017 issued by the defendants to the
plaintiff also shows that the defendants had put grievance about the
non working of the crane. It was also stated in the same e-mail that the
execution of the project has been delayed and the defendants reputation
is spoiled. Thus, since the very initial phase of the performance of the
contract, the defendants had put their grievance regarding quality of the
crane. The reply mail issued on behalf of the plaintiff on same date
shows that the duration of the crane break down exceeded due to non
availability of the part in Madhya Pradesh. In other words, apparently,
the plaintiff admitted that the crane went into break down and it could
not be restarted immediately or within reasonable period. Having
regard to this contentions and the nature of the material on record the
defendants put the defence with substance and with the triable issues.
Resultantly, unconditional leave deserves to be granted to the
defendants and the plaintiff is not entitled to the summons for
judgment. Hence, point No.1 is answered in the negative and point
No.2 is answered as defendants are entitled to unconditional leave to
defend. In view of point No.3 order as follows is passed:-
ORDER
1. The summons for judgment No.61/2019 is rejected.
2. Unconditional leave to defend is granted to the defendants.
3. The defendants shall file written statement on or before
06/04/2020.
4. The Registrar shall cause the conversion of the suit to appropriate
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category and to assign it to appropriate court by completing the
requisite process.
5. The Summons for judgment No.61/2019 is disposed.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date: 11/02/2020 City Civil Court, Gr. Mumbai
Dictated on : 11/02/2020
Signed on : 15/02/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
20/02/2020 at 11.20a.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 11/02/2020
Judgment/Order signed by P.O. on 15/02/2020
Judgment/Order uploaded on 20/02/2020
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