Order 4

Order Details: Notice of Motion
Pdf Text: NM No. 102193 / 2019 Zale Shipping – Samarth Impex Order (Exh. 9)
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City Civil and Sessions Court, Greater Mumbai
Court Room No. 31
(District Judge : Vijay S. Hingne, LL. M.)
Notice of Motion Filed : 19.06.2019
Arguments Over : 01.08.2023
Decided on : 23.08.2023
Duration : 4 Y, 2 M, 5 Days
MHCC01-006082-2019
Exhibit No. 9
Notice of Motion No. 102193 / 2019
from
Commercial Suit No. 100008 / 2019
Plaintiff : Zale Shipping & Logistics Services Pvt. Ltd.
VERSUS
Defendants 1 M/s. Samarth Impex
2 Deepa Ashok Jadhav
Appearances
Plaintiff
: Adv. Shri C. K. Mhatre
Adv. Shri Shrirang K. Paranjape
Defendant
: Adv. Shri Prakash B. Pawar
Notice of Motion for Injunction
************************************************************************
ORDER
(Pronounced on this 23rd Day of August, 2023)
Plaintiff has preferred Notice of Motion for direction to
defendants to deposit Suit amount, to disclose its properties.
Plaintiff has also prayed for injunction to restrain defendants
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NM No. 102193 / 2019 Zale Shipping – Samarth Impex Order (Exh. 9)
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from creating third party interests. Attachment of residential flat
of defendants is also sought.
2) Zale Shipping & Logistics Services, Ghatkopar, Mumbai
(hereinafter,
Plaintiff) is company providing transport services
within and outside India.
M/s. Samarth Impex, Dombivali (E), Dist. Thane is the
proprietary firm of defendant No. 2 Deepa Ashok Jadhav
(hereinafter,
Defendants). It deals in business of import and
export of agricultural products.
Case of plaintiff :
3) On 29.04.2016, plaintiff shipped consignment of 2 X 20
ft. container containing Parboiled Rice of defendant from Kolkata
Port to Tincan Island Port (Nigeria). However, on 20.05.2016,
while consignment was at Singapore Port, defendant No. 2 asked
plaintiff to bring the container back to Kolkata Port. Accordingly,
plaintiff brought container back to Kolkata Port and transported
said Parboiled Rice to Burdman i.e. original suppliers address.
4) Regarding said transport, plaintiff generated 4 Invoices
worth . 11,60,432/- towards freight charges, clearing charges,	₹
detention charges at Singapore Port and rerouting charges from
Singapore Port to Kolkata, transportation to original supplier
Burdman. Against said Invoices, defendant issued two Cheques
bearing No. 686240 Dt. 10.11.2016 for
.	₹ 2,00,000/- and Cheque
No. 686241 Dt. 10.12.2016 for . 2,06,996/-. However, those	₹
Cheques were dishonoured. As on 31.12.2018, defendants are
liable to make payment of . 6,39,176/-. Hence, the Suit.	₹
Notice of Motion :
5) Through Notice of Motion No. 102193 / 2019, plaintiff
prayed that, defendants be directed to deposit decreetal money, to
disclose her properties. It is also prayed that, she be restrained by
way of injunction from creating third party interest. Further, her
residential flat should also be attached.
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NM No. 102193 / 2019 Zale Shipping – Samarth Impex Order (Exh. 9)
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Notice of Motion is under strong objection by
defendants.
Points for determination :
6) Perused Record. Heard Adv. C. K. Mhatre with Adv.
Shrirang K. Paranjape for plaintiff. Heard Adv. Prakash B. Pawar
for defendants. Points for determination, findings and reasons are
as follows :
Points
Findings
1 Is plaintiff entitled for relief of
injunction, as prayed?..................... In the Negative.
2 What Order? …………………… As per final order.
R E A S O N S
Reasons as to Point No. 1 & No. 2 :
7) Defendants admitted that, she has availed transportation
services of plaintiff for export of Parboiled Rice from Kolkata
Port to Tincan Island Port (Nigeria). Defendant also admitted
that, she asked plaintiff for rerouting goods back to India.
8) However, defendant came with case that, because of his
inefficiency of plaintiff, the containers were unnecessarily lying
at Kolkata Port. Thereby, there was deficiency in the services of
plaintiff. Plaintiff has not mentioned datewise entry in Plaint,
regarding cost of calling back of containers. Said details are
omitted with intention to create misunderstanding and ambiguity
in transaction.
9) It is also case of defendants that, she has already made
payment vide ICICI Bank Receipt No. 114 Dt. 07.07.2016 for .	₹
1,50,000/- and No. 177 Dt. 18.08.2016 for . 6,00,000/-. Thus,	₹
defendants had paid total of . 7,50,000/-. Defendants had	₹
already paid export shipment charges, clearing and forwarding
charges to the tune of . 2,48,641/-. It was plaintiff, who failed to	₹
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render better services. Therefore, defendants are not liable to
make any payment.
10) Perusal shows that, plaintiff is claiming recovery of .	₹
6,39,176/-. Defendants have raised numerous triable issues as
concealment of charges, deficiency of services.
11) Perusal shows that, no facts and circumstances are
pleaded by plaintiff, which will point that, defendants are
committing such acts regarding her property, which may defeat
the decree of plaintiff. Unless such facts are pleaded, attachment
in money decree cannot be ordered. Hence, reliefs of injunction
and attachment as claimed by plaintiff cannot be granted.
Therefore, Notice of Motion No. 102193 / 2019 cannot be
considered at this stage. Accordingly, it stands rejected by
following Order :
ORDER
1. Notice of Motion No. 102193 of 2019 stands rejected.
2. Proceeding of Notice of Motion No. 102193 of 2019 is
closed.
3. Both sides be informed about their right to challenge
this Order and period of limitation for the same.
4. Order dictated and pronounced in Open Court.
5. The record of Notice of Motion shall be part and parcel
of the main Commercial Suit No. 100008 / 2019.
Mumbai
Dated : 23.08.2023 (Vijay S. Hingne)
District Judge, Court Room No.31
City Civil & Sessions Court,
Greater Mumbai
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