Final Order 1

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MHCC010023292019
Presented on : 01/03/2019
Registered on : 01/03/2019
Decided on : 29/04/2022
Duration : Y M D
03 01 28
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
SUMMONS FOR JUDGMENT NO.72 OF 2019
IN
COMMERCIAL SUIT NO.365 OF 2021
(SUMMARY SUIT NO.799 OF 2018)
M/s. Kakad Engineers & Contractors
Daxta Police Cooperative Housing Society
Ltd. B1/3, Ganesh Building, Dr. Kapse
Nagar, Ghatkopar(East), Mumbai
400 075. Through proprietor, Shri Mukund Radhakishan
Kakad, Age 39 years, occupation: Business,
Civil Contractor, Mob: 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
4. Dy. Engineer South, Sub Division
Public Works Department,
Government of Maharashtra,
Madam Cama Road, Mumbai400 032. ..Defendants
______________________________________________________
Ld. Advocate G.B.Pawar for plaintiff
Ld. Advocate Kudalkar for defendants
______________________________________________________
ORAL ORDER
(Dated this 29th day of April, 2022)
This Summons for Judgment is taken out by plaintiff
for decree of an amount of Rs.34,00,237/ alongwith interest @
18% p.a. on the principal amount of Rs.13,54,548/.
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 an amount of Rs.13,54,548/. Defendant
No.3 has issued work completion certificate. As per terms of the
tender, defendants were required to make payment within three
months from the date of submission of final bill. However,
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defendants failed to make the payment. Plaintiff issued letters
dated 18/07/2017 and 27/12/2017 to defendant No.3 and letter
dated 27/12/2017 to defendant No.2. Defendant No.3 by letter
dated 06/01/2018, informed plaintiff that bill of Rs.13,54,548/
is pending for want of grant. Defendant No.3 acknowledged non
payment of the bill. Defendants have no defence to plaintiff's
claim. They have caused their appearance only to cause delay in
passing of the decree. By making all these submissions, plaintiff
prayed for making Summons for Judgment absolute.
3. Defendants by filing reply affidavit strongly resisted
the Summons for Judgment. Defendants have admitted issuance
of work order in favour of plaintiff. However, they have denied
that work was completed as per the work order. It is submitted
that bill raised by the plaintiff was not in accordance with the
agreement No.b1/EE/729/0910 dated 13/05/2009. Suit is not
filed within limitation. By making all these averments,
defendants prayed to dismiss the Summons for Judgment.
4. Heard both the sides.
5. During the pendency of the suit, defendants paid
principal amount of Rs.13,54,548/ to plaintiff. During the course
of hearing, Ld. counsel for plaintiff admitted receipt of principal
amount. He submitted that his Summons for Judgment may
kindly be considered for interest amount.
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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
per the provisions of Interest Act. Therefore, decree for the
amount of interest claimed in Summons for Judgment be passed.
7. As against this, Ld. Counsel appearing for defendants
submit that plaintiff is only claiming 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 accordance with Order 37 of
CPC., 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.
8. 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 suit.
Therefore, plaintiff is praying for making Summons for Judgment
absolute only for the 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 for
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interest 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 hold
"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 summary procedure and no summary suit could
have been filed in so far as the interest portion is concerned."
9. 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), 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:
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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
4. Summons for Judgment No.72 of 2019 is disposed of
accordingly.
29/04/2022 S.U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 29/04/2022
Transcribed on : 29/04/2022
Signed on : 30/04/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
30/04/22 at 04.45 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
29/04/2022
Judgment and order signed by P.O. 29/04/2022
Judgment/order uploaded on 30/04/2022
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