Order 1

Order Details: Other
Pdf Text: SJ 53/18 IN SUM.136/17 ORDER 1
EXHIBIT
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.53 OF 2018
( CNR No.MHCC01-002450-2018)
IN
SUMMARY SUIT NO. 136 OF 2017
Ammar Enterprises,
Through its CA Mr.Hussain S.Ratlamwala,
Age 27 yrs.
A Company registered under the Companies
Act, 1956 through its Proprietor
Mr.Safuddin F.Ratlamwala having its office
at 21, Mary Road, Shop No.16/17,
Opp.Central Bank of India, Mazgaon,
Mumbai – 400010 … Plaintiffs
Vs.
1. UNICORP Construction,
Through its Partner Mr.Amiruddin Kazi,
Office at: Shop No.5, Kutchi Lohana Bldg.
69, Shivdas Champsi Marg, Near Sales Tax
Office, Mazgaon, Mumbai400010.
2. Mr.Amiruddin Kazi,
Proprietor of Unicorp Construction,
Residing at Janak House, Flat No.7,
3rd Floor, Opp.Indian Oil, Wadala (E),
Mumbai400037. … Defendants
Advocate Ms.Kavita Shinde for the plaintiff.
Advocate Mr.Jagdish Hegde for the Defendants.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 7th March 2022
JUDGMENT
1. Plaintiff has filed suit for recovery of Rs.10,86,163/ with 24%p.a.
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SJ 53/18 IN SUM.136/17 ORDER 2
interest from the date of order till realisation of the amount. It is the
case of the plaintiff that it is a registered Company doing business in the
name and style as Ammar Enterprises. The plaintiff is having business
address which is cited in the title. The plaintiff is dealing in the
plumbing material and plumbing contract. The defendant no.1 is
company, defendant no.2 is its proprietor. The defendants have
construction business in the name of UNICORP Construction, the
Unicorp Infra and Unicorp Enterprises. Defendant is having business
address which is cited in the title clause.
2. The plaintiff has filed the suit under Order XXXVII for recovery of
amount payable by the defendant towards outstanding bills. Mr.Gulam
Nabi Khan was one of the partner of Unicorp Infra that is the partner of
defendants. The defendant has offered the plaintiff to work on his
project called as Pranam Heights. It was decided that the defendant as a
main Contractor of the plaintiff will work as subcontractor. As per
agreed terms the defendant will take orders from the developers and
get the work done from the plaintiff. Accordingly the plaintiff will
supply materials and labours to the defendant. Thereafter, he will raise
the bills for the said materials and labours. Then the said bill will be
raised by defendants to the developer and thereafter payment of the
plaintiff will be released. This fact was determined between the parties.
Accordingly the plaintiff started work. He had supplied labour and
delivered materials to the defendants. The defendants have agreed and
accepted all the terms and conditions. The plaintiff has raised bill
against the said delivery of the materials. The bills were received by
defendants. As per bills the defendants were required to make the
payments within 15 days from the date of bill. The bills were for the
period of 24/2/2012 to 15/1/2014. As per ledger account of the
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plaintiff the due amount is Rs.10,86,163/ shown against the
defendants but thereafter the defendant neglected to pay outstanding
amount. Consequently, plaintiff has issued legal notice on 28/4/2015
through advocate. The said notice is duly served to defendants. In the
said notice the defendants have admitted agreement between the
parties. It is their submission that the plaintiff has done only half work
done and thereafter he stopped the work. As per submission of the
plaintiff the statement of defendants in their reply shows that they have
admitted agreement between the parties.
3. The defendants have made last payment on 10/12/2013 i.e.
Rs.30,000/ by cheque that is part payment and failed to pay rest of the
amount payable by them to the plaintiff. Therefore, this suit is filed for
recovery of due amount and in that suit this Summons for Judgment for
claiming due amount as well as interest thereon is filed.
4. The defendants have filed application for conditional leave to
defend the suit alongwith reply to Summons for Judgment. It is their
submission that they have never served copy of plaint as well as
documents. Therefore, they have requested to reserve their right for
additional reply. As per their submission that the plaintiff has claimed
amount for the period of 24/2/2012 and the suit is filed on
20/10/2016. Therefore, prima facie the suit is barred by law of
limitation. The defendants submitted that the plaintiff failed to show on
record last payment of Rs.30,000/ made by defendants to the plaintiff.
It is their one more submission that there is no written contract between
the parties which is required and mandatory under Order XXXVII for
maintainability of summary suit. Therefore, it is their submission that
the suit is liable to be dismissed. Defendants further submitted that the
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plaintiff has filed false and frivolous suit by suppressing material facts.
However, the person Saifuddin is not authorised person to file the suit
on behalf of plaintiff. The defendants submitted that the defendant no.1
is main contractor of the developer and get the work done through any
contractor as per requirement and satisfaction of the work. The plaintiff
has no privity of contract with developer. It is their submission that as
per requirement the defendants have completed the work assigned to
them by the developer. The plaintiff has collected VAT amount but they
failed to deposit the same to concerned department, therefore Sales Tax
Department had issued notice to defendants. The notice issued by
plaintiff through advocate is duly replied by defendants by denying facts
made out by the plaintiff. With these submission the defendants
requested to allow them to defend the suit unconditionally.
5. The plaintiff filed rejoinder and denied the contents of reply. As
per statement of the plaintiff service of summons is properly completed.
However, the defendants have made last payment on 10/12/2013 and
therefore, the suit is within limitation. The plaintiff has issued bills
therefore the suit is properly maintainable under Order XXXVII. The
defendants have admitted the work done by plaintiff and therefore they
are liable to repay the amount due against them.
6. Defendants have also filed rejoinder again they have submitted
that suit summons is not duly served to them. However, the plaintiff
had never raised bills, though the project was left half way due to
medical sickness of the Proprietor. The defendants have paid all
payment to the plaintiff against material supplied by plaintiff. For full
and final settlement was made out between the parties. Actually the
defendants have completed work assigned by developer to them. The
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plaintiff was not party to the same documents. Therefore, defendants
have objection about custody of said documents with plaintiff.
7. Heard argument. From pleadings, documents on record following
points arise for consideration to which I have given reasons before
them:
Sr.
No.
POINTS FINDINGS
1 Does plaintiff entitled for relief sought
in the summons for judgment ?
In the Affirmative to the
extent of Principal
amount.
2. Do the defendants entitled for leave to
defend the suit unconditionally ?
In the Negative
3 What Order ? Summons for Judgment
is made partly absolute
R E A S O N S
AS TO POINT NOS.1 AND 2:
8. It is the case of plaintiff that the plaintiff company is dealing with
plumbing material and plumbing contracts. The defendant company is
dealing with construction business. The defendant has offerred the
plaintiff to work on their project called as Pranam Heights. Accordingly
the plaintiff has completed the work and sought bills from defendants.
The material was duly delivered to the defendants. They have accepted
it. The transaction was between 24/2/2012 to 15/1/2014. As per ledger
account the due amount is Rs.10,86,163/ against the defendants.
Thereafter, the plaintiff started demanding the said amount to
defendants, defendants were avoiding to repay the said amount. Lastly,
the plaintiff has issued legal notice even thereafter the defendants have
failed to pay the amount. Therefore, suit and Summons for Judgment is
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filed. From the contents of plaint it appears that there was contract
between plaintiff and defendant regarding plumbing work. The plaintiff
he has supplied material as per contract between the parties. Plaintiff
has produced ledger extract. The said ledger extract is denied by
defendants with contents that it is not signed by authorised person.
Therefore, at this stage it is not proper to consider such kind of
document. On the other hand, it is the case of defendant that the
plaintiff left work incomplete. The said work is completed by
defendants. However, whatever material was supplied by plaintiff, the
defendants have made payment to him and therefore there is no due
against them. From the contents of defendants it appears that the
defendants have agreed about contract between the parties. They have
also admitted that the plaintiff has supplied materials to them as agreed
between parties. But as per their statement they have paid amount to
plaintiff. Here except bare statement of defendants no document is
produced on record to show that the defendants have paid full and final
amount of work done by plaintiff. Therefore, prima facie from the
pleading it appears that the plaintiff has supplied material to the
defendants, but defendants have failed to make payment to him.
9. The defendants have raised legal objection on the ground that
suit is hopelessly barred by law of limitation. Admittedly, plaintiff has
claimed amount for the work done for the period of 24/2/2012 to
15/1/2014. The suit is filed on 20/10/2016 if last date that is
15/1/2014 considers then 20/10/16 is the date which is out of
limitation. From the case of the plaintiff the defendants were paying
amount as shown by plaintiff and the defendants have made last
payment on 10/12/2013 that is Rs.30,000/ by cheque. The plaintiff
has produced Central Bank of India Account extract maintained in the
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name of plaintiff in which the entry regarding credit of cheque on
10/12/2013 of Rs.30,000/ is shown. This entry is shown in the
account extract maintained in the name of plaintiff. Entry of
Rs.30,000/ is shown in the credit column. Therefore, as per statement
of the plaintiff on 10/12/2013 the defendants have made last payment.
Therefore, he has filed suit on 20/10/2016. From 10/12/2013 to
20/10/2016 date of filing suit prima facie suit appears to be filed within
limitation. However, after depositing amount of Rs.30,000/ the
balance amount in the account of plaintiff has shown increase to the
extent of Rs.30,000/ plus earlier balance. Therefore, it appears that on
10/12/2013 the defendants have deposited last payment, so prima facie
the suit is within limitation. However, the question of limitation is
mixed question of law and fact that needs to be decided on merit and
that would be considered after giving fullfledged opportunity to the
parties.
10. The next question from the side of defendants that the suit is not
based on written contract therefore, it is not tenable under Order
XXXVII of Civil Procedure Code and in the nature of summary suit,
under Order XXXVII for Summary Suit the suit should be based on
written Contract, that is the Hundi, cheque etc. From the pleadings it
appears that the plaintiff and defendants entered into an agreement.
The plaintiff has completed work for that the defendants have made
some payment. The defendants have accepted delivery of goods against
which the plaintiff has issued bills and that can be called as written
contract between the parties. Therefore, it also cannot be said that the
suit is not tenable in the nature of Summary Suit. Prima facie from the
pleadings and documents on record the plaintiff has made out case to
the extent to show that at least at this stage he is entitled for principal
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amount of Rs.10,86,163/ which is due against defendants. Therefore,
the defendants are liable to pay the said amount then they are entitled
to defend the suit .
11. The plaintiff has also asked interest on due amount but the
question of interest will be considered on merit with question of
limitation and with other legal issues. Therefore, the Summons for
Judgment needs to be made absolute to the extent of principal amount .
Therefore, I answer to point No.1 in the affirmative and for point no. 2
in the negative and Summons for Judgment is made partly absolute.
Hence, following order is passed:
O R D E R
1. Summons for Judgment no.53/18 is made
absolute.
2. Leave to defend the suit is granted to the
defendants subject to deposit of amount of
Rs.10,86,163/(Rs.Ten Lacs Eighty Six Thousand
One Hundred and Sixty Three) within 30 days
from the date of this order.
3. The Summons for Judgment No.53/18 is
disposed of accordingly.
(C.V.Patil)
Adhoc Judge,
City Civil Court,
Date: 07.03.2022 Gr.Mumbai.
Dictated on: 07.03.2022
Typed on : 07.03.2022
Signed on : 14.03.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
14/03/2022 5.50p.m. Mrs.Jyoti Mane
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
07/03/2022
JUDGEMENT /ORDER signed by P.O. on 14/03/2022
JUDGEMENT /ORDER uploaded on 14/03/2022
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