Interim Order 1

Order Details: Other
Pdf Text: 1 N/M 813/20 in C/ST.2285/20(Interim)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
INTERIM ORDER
IN
NOTICE OF MOTION NO.813/2020
IN
COMMERCIAL SUIT(ST) NO. 2285/2020.
1. ZV Steel Pvt. Ltd.
A private limited company.
2. ZV Coated Steel Products
Through its Authorized Signatory
and Constituted Attorney
Mr. Muffaddal Lakdawala
3. Mr Zameer Riyaz Lokhandwala
4. Mr. Riyaz Lokhandwala ..Plaintiffs
V/s.
1. Pami Metal Pvt. Ltd.
A private limited company
2. Rajesh Kumar Damani
3. Mohit Damani
4. Gopi Kishan Damani
5. Sona Devi Damani
6. S.P. Rao. ..Defendants
Appearance:-
Adv. Mr. Santosh Budhwani for plaintiffs.
CORAM : HHJ Shri V.V Vidwans.
C. R. No.03.
DATE : 28.2.2020.
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ORAL ORDER
1. This Suit is filed as a Commercial Suit for recovery of due
amount of Rs.35,91,994.06 from defendants along with interest. The
plaintiffs’ claim in the suit is supported by documents filed on record as
per list at pg.19 with the documents filed along with plaint. On
14.2.2020, by praecipi, the matter was taken up on board for hearing of
Ld Counsel for the plaintiffs regarding dispensing with pre-institution
mediation u/s.12A of Commercial Courts Act, 2015 (
for short “CC Act”).
Ld Counsel for the plaintiffs had demonstrated that there is an urgency
in the matter because the defendants are in process of creating third
party interest by transferring immoveable properties unless urgent
orders restraining the defendants are passed by this court. Hence, it was
submitted that the plaintiffs will be taking out urgent Motion for
seeking interim reliefs.
2. After hearing Ld Counsel for the plaintiffs, I was satisfied
that there was urgency in the matter and the plaintiffs intended to take
up urgent Motion for seeking interim relief, hence pre-institution
mediation u/s.12A of CC Act was dispensed with.
3. After lodging number was given to the Suit on 27.2.2020, I
had heard Ld Counsel for the plaintiffs regarding grant of interim relief.
4. It was submitted on behalf of the plaintiffs that, the
defendants have been served with urgent Notice of Motion
No.813/2020 as per affidavit of service filed on record along with
documents which consist of postal track reports vide Exhs.A to F
respectively. As per track reports, the defendants have received the
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envelope containing copy of plaint along with urgent Motion on
25.2.2020. Inspite of service, the defendants are absent before the court
today.
5. Ld. Counsel for the plaintiffs submitted that, the plaintiff
no.1 is a Private Limited Company. Plaintiff no.2 is its sister concern and
a partnership firm. Plaintiffs no.3 and 4 are partners of plaintiff no.2
and also Directors of the plaintiff no.1. The plaintiffs are dealing in the
business of trading in MS Flat Steed products specialized in Cold Rolled
Steel and other products from the year 1996. Defendant no.1 is also a
Private Limited Company incorporated under the Companies Act.
Defendant no.2 is a Managing Director of defendant no.1 and
defendants no.3 to 5 are Directors of defendant no.1. An Executive
Officer of defendant no.1 company is looking after its day to day
business of trading in metals from the address mentioned in the cause
title of the suit.
6. The urgency in the matter to approach this court for
seeking interim relief has been narrated by the Ld. Counsel for the
plaintiffs in the affidavit supporting the Motion filed by Mr. Muffaddal
Lakdawala. It is submitted that, the present suit has been filed by the
plaintiffs for recovery of due amount payable by the defendants in
respect of goods purchased by them from the plaintiffs as per purchase
orders. The defendants are defaulters as per ledger account maintained
by the plaintiffs. The due amount to be recovered from the defendants
pertains to the period from 1.4.2018 to 31.3.2019 and it was
communicated to the defendants making it clear that the amount of
Rs.26,36,802/- was due to be paid by them. The defendants had
acknowledged and admitted their liability under the signature and
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stamp and confirmed the ledger account of the plaintiff no.2. Ld.
Counsel for the plaintiffs referred to Exh.I at pg.35 filed with the plaint
showing that there is also handwritten entry made under signature and
stamp of defendants regarding acceptance of the liability of due amount
as claimed by the plaintiffs. The plaintiffs had made repeated demands
to the defendants in respect of the due amount. In this regard, reference
is made to the email dated dated 30.7.2019 Exh.J and reply to the same
by the defendant no.1 through Mr.Vikas Shevde on 2.8.2019, vide
Exh.K. GST filed by the defendant no.1 for the relevant period is at
Exh.L and particulars of claim given in the plaint exactly tallied with the
due amount of Rs.26,36,802/- plus interest @36% p.a. vide Exh.M.
7. Ld. Counsel for the plaintiffs, in para 17 of the plaint, it is
specifically pleaded that, the defendants are having two units; one at
Kolkata and one at Vadodara. The defendants have stopped their
production in the above said units and are in the process of disposing of
their unit at Kolkata and also their movable and immovable properties
so as to defeat the plaintiffs’ claim in the suit and also that of other
creditors. The plaintiff is also having video clip taken out by one
Mr.Kapil Pandya to show that the defendants have emptied their
warehouse at Kolkata and are in the process of alienating their
properties in hurry with the sole intention to defraud the plaintiffs and
other creditors. It is alleged that the defendant no.6 is actively
approaching the people in the industry for selling out the assets of the
defendant no.1 company and in the meanwhile, all the defendants are
giving false assurances to the plaintiffs regarding outstanding due
amount. Under the above circumstances, it is urged that, the plaintiffs
have made out a
prima facie case for passing interim order for
protecting the interest of the plaintiffs till defendants appear before the
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court and submit their affidavit in reply to the Motion. The balance of
convenience also weighs in favor of the plaintiffs, because if the interim
relief is not granted the plaintiffs will suffer irreparable loss, which
cannot be adequately compensated in terms of money.
8. I have gone through the
prima facie material and
documents filed on record by the plaintiffs and taken into consideration
oral submissions made by Ld Counsels for both sides. On the basis of
prima facie material and documents on record, I am of the considered
opinion that, the plaintiffs have made out a case for passing ad-interim
order for protecting their interest. If no interim relief is granted then the
process of recovery of due amount of the plaintiffs will be seriously
affected. The amount of the claim in the suit is huge amount and if no
orders are passed, the very purpose of filing of the Suit and taking out
the urgent Motion by the plaintiffs will be defeated. Hence, I hold that,
prima facie case and balance of convenience is in favour of the
plaintiffs. Therefore, it will be just and proper to grant interim relief to
the plaintiffs till the next date to meet the ends of justice. Hence, I
proceed to pass following order :-
ORDER
1. Interim relief in terms of prayer clauses(b) and (c) of
the notice of motion is hereby granted.
2. The defendants are hereby directed not to sale, alienate,
assign or create third party interest in their moveable
and immovable properties, without permission of the
court, till next date.
3. The defendants are also directed to disclose the details
of their immoveable property on affidavit so as to enable
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this court to take up the Motion for hearing on merits
after the defendants appear before the court and submit
their affidavit in reply to the Motion.
4 Issue notice to the defendants to show cause as to why
the interim relief granted in favour of the plaintiffs
should not be continued during pendency of the
Motion/Suit.
5. Ld. Counsel for the plaintiffs is directed to communicate
this order to the defendants for their information and
necessary compliance and submit report of compliance
to this Court on or before next date.
6. Matter adjourned for return of notice/ reply to the
notice of motion.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 28.2.2020 Gr. Bombay (C.R. 03)
Dictated on : 28.2.2020
Transcribed on : 28.2.2020
Draft given to HHJ on 28.2.2020
Signed by HHJ on : 02.3.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 3.3.2020
TIME: 12.05 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 28.2.2020
Judgment/ order signed by P.O on 2.3.2020
Judgment/ order uploaded on 3.3.2020
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