Final Order 1

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MHCC010023092019
Presented on : 01/03/2019
Registered on : 01/03/2019
Decided on : 17/11/2021
Duration : Y M D
02 08 16
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
SUMMONS FOR JUDGMENT NO.71 OF 2019
IN
COMMERCIAL SUIT NO.349 OF 2021
(SUMMARY SUIT NO.798 OF 2018)
M/s. Bharati Enterprises
Daxta Police Cooperative Housing Society
Ltd. B1/3, Ganesh Building, Dr. Kapse
Nagar, Ghatkopar(East), Mumbai
400 075. Through proprietor, Shri Bharati Mukund
Kakad, Age 35 years, occupation: Business,
Civil Contractor, Mob: C/o.9321283545,
Email: mukundkakad44@gmail.com ..Plaintiff
Versus
1. The State of Maharashtra
Through Secretary, Public Works
Department, Mantralaya,
Mumbai 400 032.
2. The Superintending Engineer
Mumbai (P.W.) Circle,
Govt. of Maharashtra, 5th Floor,
Bandkam Bhavan, 25, Marzban
Road, Fort, Mumbai400 001.
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3. The Executive Engineer
Presidency Division Govt. of
Maharashtra, Bandhkam
Bhavan, 2nd floor, 25,
Marzban Road, Fort,
Mumbai 400 001.
Email:presidency.ee@mahapwd.com
Phone: 22016975/22016973
4. Dy. Engineer
MLA Hostel Sub Division, Manora
1st floor, 25, Marzban Road, Fort,
Mumbai 400 001. ..Defendants
______________________________________________________
Ld. Advocate G.B.Pawar for plaintiff
Ld. Advocate M.V.Singhania for defendants
______________________________________________________
ORAL ORDER
(Dated this 17th day of November, 2021)
1. This Summons for Judgment is taken out by plaintiff
for decree of an amount of Rs.3,39,336/.
Briefly stated, plaintiff's case, is as under:
2. Plaintiff is a registered Government Contractor.
Plaintiff carried out the work as per tender issued by defendant
No.3 and raised the final bill. Final bill was submitted to
defendant No.3 for the amount of Rs.4,81,594/. However,
defendants have withhold the payment of Rs. 3.30 lacs.
Therefore, suit is filed claiming outstanding amount of Rs.3.30
lacs alongwith interest.
3. After filing of the suit, defendants made payment of
the principal amount. Plaintiff is entitled to the interest at the
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rate of 18% p.a. on the principal amount as per provisions of
Negotiable Instruments Act, Interest Act, Sec. 34 of C.P.C. and
Sec.16 of the Micro, Small and Medium Enterprises Development
Act. By making these submissions, plaintiff prayed for passing the
decree towards the interest amount of Rs.3,39,336/.
4. Defendants by filing their reply affidavit strongly
resisted the Summons for Judgment taken out by plaintiff. It is
submitted that defendants made part payment in the year 2011
and balance payment was made on 09/10/2018. Plaintiff is
claiming the amount of the bill raised in the year 2011 and suit is
filed in the year 2018. The suit is not filed within limitation.
Defendants paid outstanding principal amount. Plaintiff is not
entitled to claim interest at the rate of 18% p.a. on the basis of
Negotiable Instruments Act, Interest Act, Sec. 34 of C.P.C. and
Sec.16 of the Micro, Small and Medium Enterprises Development
Act, as suit, u/o 37 Rule 2 of C.P.C. is not maintainable for
interest amount. By making these submissions, defendants prayed
that Summons for Judgment taken out by plaintiff is liable to be
dismissed.
5. Heard both the sides.
6. Ld. Counsel for plaintiff submits that there is delay in
making payment of the bill raised by plaintiff. Defendants have
withhold payment without any reason. Therefore, they are liable
to pay interest as per Section 3 of Interest Act on the principal
amount. Defendants do not have any defence, therefore they have
paid the principal amount. Plaintiff is entitled to the interest as
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per the provisions of Interest Act, therefore he is entitled to get
decree for the amount of interest claimed in Summons for
Judgment.
7. Plaintiff relied upon the case of The Indian Rayon
and Industries Ltd V/s M/s. Sirohya Enterpriese, AIR 1992
BOMBAY 60 and Ajay Deep Construction Pvt. Ltd V/s
Maharashtra State Police Housing And Welfare Corporation
Ltd, 2021(5) ABR 454.
8. In case of The Indian Rayon and Industries Ltd
(cited supra), Hon'ble Bombay High Court pleased to spell out the
principles regarding grant or refusal of leave to defend in
Summary Suit as under:
(a) Where no defence is indicated, then the leave to defend
must be refused.
(b) Where none of the defences sought to be raised is
tenable in law, then leave to defend must be refused.
(c) Where part of the amount claimed by the plaintiff is
admitted by the defendant to be due from him, leave to
defend shall not be granted unless the amount so
admitted to be due is deposited by the defendant in
Court.
(d) Where the facts disclosed by the defendant indicate
that a triable issue is raised, but this is not a substantial
defence, then leave to defend may be granted only
upon such terms as may appear to the Court or Judge
to be just.
(e) Where the facts disclosed by the defendant indicate
that he has a substantial defence to raise, unconditional
leave to defend must be granted.
9. In case of Ajay Deep Construction Pvt. Ltd (cited
supra) , Hon'ble Bombay High Court pleased to award 9% interest
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on the principal amount for the suit and pendente lite period
considering the provisions of Sec.3 of the Interest Act. However,
said suit appears to be regular Civil suit for recovery of the
amount. Suit was not filed u/o.37 Rule 2 of C.P.C.
10. Ld. Counsel appearing for defendants submit that
Summons for Judgment is taken out only for interest amount. The
rate of interest is not claimed on the basis of written contract.
Principal amount is already paid to plaintiff, therefore, decree for
the interest amount cannot be passed in the absence of written
contract of interest. Defendants relied upon the case of Mafatlal
Finance Limited, Mumbai V/s Express Industrial Services
Private Limited, 1999(3) Mh.L.J.64.
11. Considered the submissions advanced on behalf of
both the sides. It is not in dispute that defendants have made the
payment of the principal amount to plaintiff after filing of the suit
i.e. on 09/10/2018. Therefore, plaintiff has taken out Summons
for Judgment only for interest amount. It is also not in dispute
that there is no stipulation in the written contract for payment of
interest in the case of delayed payment. Thus, plaintiff's claim,
interest claimed in the Summons for Judgment is not based upon
written contract. As discussed supra, defendants relied upon the
case of Mafatlal Finance Limited, Mumbai (cited supra). In this
case, Hon'ble Bombay High Court pleased to held ,"Considering
the above, I am clearly of the opinion that as the interest claimed
was not pursuant to any agreement or was not recoverable pursuant
to any statute that part of the relief would not fall within the
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summary procedure and no summary suit could have been filed in
so far as the interest portion is concerned."
12. Plaintiff claims that he is entitled to interest as per
provisions of Negotiable Instruments Act, Interest Act, Sec. 34 of
C.P.C. and Sec.16 of the Micro, Small and Medium Enterprises
Development Act. Suit is not based upon any Negotiable
Instrument and therefore provisions of The Negotiable
Instruments Act are not applicable for deciding rate of interest.
So also, considering the avernments in the plaint, provisions of
Micro, Small and Medium Enterprises Development Act are not
applicable. Plaintiff also cannot claim 18% interest as per the
provisions of Interest Act and Sec.34 of C.P.C. The claim
regarding interest is not governed by written contract. As held in
the case of Mafatlal Finance Limited, Mumbai (cited supra),
summary suit for the claim of interest amount would not come in
the category of summary suit as provided under order 37 Rule 2
of CPC. Therefore, defendants are entitled to unconditional leave
to defend the suit. In the result, following order:
ORDER
1. Unconditional leave to defend the suit is granted to
defendants.
2. Defendants shall file their Written Statement within 30
days from today.
3. No order as to costs
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4. Summons for Judgment No.71 of 2019 is disposed of
accordingly.
17/11/2021 S.U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 17/11/2021
Transcribed on : 20/11/2021
Signed on : 20/11/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
20/11/21 at 05.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
17/11/21
Judgment and order signed by P.O. 20/11/21
Judgment/order uploaded on 20/11/21
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