Final Order 1

Order Details: Other
Pdf Text: IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
SUMMONS FOR JUDGMENT NO. 76 OF 2019
IN
SUMMARY SUIT NO.343 OF 2018
Conde Nast (India) Pvt. Ltd.
A company incorporated under the provisions
of the Companies Act, 1956 having its office at
2nd floor, Darabshaw House, Ballard Estate,
Shoorji Vallabhdas Marg, Mumbai- 400 001.
... Plaintiffs
V/s.
Pinxit Blue Advertising Pvt. Ltd.
A Company incorporated under the provisions
of the Companies Act, 1956 having their
Registered Office at 2nd Floor, Super Processors
Compound, Lalbaug Industrial Estate, Lalbaug,
Mumbai- 400 012.
... Defendants
Appearance:-
Adv. Ms.-Rada Kapadiya for the Plaintiffs.
Adv. Mr.Suresh Jain for the Defendants.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 01/12/2021
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ORDER
(Dictated and pronounced in Open Court.)
1. The plaintiff has brought this Summons for Judgment thereby
directing the defendant company to pay a sum of Rs. 11,05,577/- with
interest on the principal sum of Rs.9,69,032/- @ 21% per annum from
the date of filing of the suit till its realization.
2. Perused the documents on record.
3. The defendants appeared on Summons for Judgment and
filed reply/ leave to defend within limitation on the following grounds:-
i) No cause of action arose against the defendant as nothing
is due and payable by defendant to the plaintiff.
ii) Suit is not maintainable as a summary suit as ingredients of
Order -XXXVII Rule -02 of the C.P.C are not attracted to the facts and
circumstances of the present suit.
iii) The suit is based on alleged invoices which are not signed
by the defendant as the same does not constitute written contract
between plaintiff and defendant. The summary suit is therefore not
maintainable.
iv) The advertisement published in the magazine was not as per
the specification and requirement of the defendant. The same had lots
of defects. Said fact was brought to the notice of plaintiff and the
plaintiff was fully satisfied with the grievances of the defendant and
agreed that the defendant need not pay for the publication and the
alleged losses caused to the plaintiff would be compensated by the
defendant in the further dealings by giving little higher rates for
publication.
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4. That the defendant is not liable to pay the alleged amount
to the plaintiff.
5. On perusal of leave to defend moved by the defendant, it
transpires that the defendant has raised objection to the tenability of the
suit and denied the suit claim in toto. The question are whether any
cause of action arose for the filing of the suit, whether the provisions of
Order XXXVII are attracted or not and whether plaintiff is entitled for
recovery or not. The submissions and contentions made by the
defendant leads to the inference that the defendant has probable
defence and the controversy has to be decided on merit.
6. This Court neither intend to comment on the merits of the
case as this is not the stage of passing order on merit or appreciation of
evidence. But this case being a case based on contract between the
parties, it becomes necessary to assess the merits of case on the strength
of the averments and contentions raised by the parties and the
documents produced in support of said averments and contentions. It
is also necessary to adjudicate the case on the basis of evidence as to
find out as to whether defendant is liable to pay the amount claimed by
the plaintiff or not.
7. Therefore, I am of the opinion that , whether the plaintiff is
entitled to recovery of amount as claimed is the triable issue in this suit
alongwith other material issues and these issues can not be brushed
aside on the count of procedure of summary suit.
8. In this background, I hold that the that defendant has
successfully made out a case to allow them to leave to defend this suit.
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Defendant has plausible defence. Therefore, the defendant should be
allowed leave to defend. However, if the defendant fails to prove the
defence, he will have to pay the amount claimed by the plaintiff. The
principal amount comes around Rs.9,69,032/- and the total amount
claimed by the plaintiff is Rs. 11,05,577/-. The suit is filed under Order
XXXVII of C.P.C for getting speedy recovery. If, leave to defend is granted
to the defendant, the suit may take more time to be decided on merit.
The plaintiff may suffer a financial loss, therefore, in order to curtail the
possibility of curtailment of any relief from defendant's side, this court
desire to put the condition on the defendant to deposit some amount in
the court to give a justified relief to the plaintiff. The said amount shall
be deposited by the defendant till next date. In consequence, the
Summons for Judgment is liable to be dismissed. Hence, the following
order is passed.
ORDER
1. Summons for Judgment No.76 of 2019 is dismissed.
2. Defendant is allowed to defend the suit on the
condition that they shall deposit amount of Rs.1,00,000/-
till next date fixed for the Summary Suit no. 343/2018.
3. Costs in cause.
4. Summons for Judgment No.76/2019 is disposed off
accordingly.
Date: 01.12.2021.
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Dictated on : 1.12.2021
Typed on : 1.12.2021
Signed on : 1.12.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
1.12.2021 05.40 p.m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ A.H.KASHIKAR (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
01.12.2021.
JUDGMENT/ORDER signed by
P.O.on
01.12.2021.
JUDGMENT/ORDER uploaded on 01.12.2021.
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