Final Order 1

Order Details: Other
Pdf Text: SJ 54/18 IN SUM.1143/16 ORDER 1
Received on : 13.02.2018
Registered on : 16.02.2018
Decided on : 06.12.2021
Duration : 03Y 09M 20D
EXHIBIT8
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.54 OF 2018
( CNR No.MHCC01-002466-2018)
IN
SUMMARY SUIT NO.1143 OF 2016
M/s.Tyresoles (Silvassa) Pvt.Ltd.,
Thru: Shri.Prakash Sahebrao Ugale
having office at Devidayal Complex,
Kanjurmarg (E), Mumbai400042. … Plaintiff
Vs.
M/s. Desan International
Proprietor: Sandeep Raj Bhola,
F3, Manish Chambers, Local Shopping
Centre, PKTB, Mayur Vihar, PHII,
Delhi. … Defendants
Advocate Ms.Kanchan Gavas for the plaintiff.
Advocate Ms.Shivangi Rajat h/f.Dubey for the Defendant.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 6th December 2021
JUDGMENT
1. This Summons for Judgment is filed by plaintiff. It is the
submission of plaintiff that he has filed suit for recovery of amount of
Rs.3,00,265/ alongwith interest at the rate of 18% p.a. As per
submission of plaintiff the said amount is due against defendant which
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SJ 54/18 IN SUM.1143/16 ORDER 2
is payable by defendant. The plaintiff's Company used to supply labour
for carrying out work. Accordingly plaintiff has supplied labour at
Shivnadar School site, Basket Ball court, Varanasi site. The labour
charges amount is Rs.3,00,265/ which is due against defendant. Inspite
of notice the defendant failed to pay labour charges. It is the case of
plaintiff that before this due amount, the defendant has availed labour
services from plaintiff Company. However, he has paid Rs.3,50,000/
for the labour services but lateron he failed to pay the further due
labour charges that is Rs.3,00,265/ for labour services. The plaintiff
issued notice to the defendant. The said notice is falsely replied by
plaintiff. Therefore, he has filed this suit for recovery of due amount.
2. In the suit defendant appeared by filing Vakalatnama. The
defendant has filed application under Order XXXVII Rule 3 for leave to
defend the suit. It is the submission of defendant that plaintiff has filed
false claim of Rs.3,00,625/, alongwith 18% per annum interest. It is his
submission that the plaintiff has not filed Summons for Judgment
within stipulated mandatory period prescribed in the Code of Civil
Procedure. However, the suit is not based on bill of exchange, Hundi,
Promissory Note etc. as prescribed in Order XXXVII Rule 1(2) of the
Code of Civil Procedure. Therefore, this Court has no jurisdiction to try
the suit. As per the case of the defendant the cause of action is shown
by plaintiff from Varanasi. The defendant is residing at Delhi therefore,
this Court has no territorial jurisdiction to entertain the suit. Therefore,
he requested to allow him to defend the suit unconditionally.
3. The plaintiff has filed rejoinder and denied all the contents of
reply filed by defendant. Heard both parties at length from the
pleadings on record following points arise for my consideration to
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SJ 54/18 IN SUM.1143/16 ORDER 3
which I have given reasons before them :
Sr.
No.
POINTS FINDINGS
1 Does plaintiff entitled for the relief asked in
the summons for judgment ?
In the
negative
2. Does defendant entitled for leave to defend
the suit unconditionally ?
In the Affirmative
3 What Order ? Summons for
Judgment is rejected
R E A S O N S
AS TO POINT NOS.1 AND 2:
4. Both parties have filed written notes of arguments in support of
their statement. First objection from the side of defendant that this
court has no territorial jurisdiction to entertain the suit. As per the case
of defendant that he is resident of Delhi and cause of action shown by
plaintiff is from Varanasi. The invoices are issued in the address of
Varanasi. Therefore, this Court has no jurisdiction. The plaintiff in reply
relied upon invoice filed alongwith plaint. On perusal of copy of invoice
Exhibit D it appears that it is issued in the name of defendant Desan
International on address cited at title. It is issued from registered office
flat no.1001, Anand Building, Chitrakar Dhurandhar Marg, Khar (W),
Khar, 400052. The address on bill is from Mumbai. However, question
of jurisdiction cannot be decided just by looking into the contents of
invoice. Therefore, that question is open for parties to contest on merit.
5. Next objection from the side of defendant that plaintiff has not
filed Summons for Judgment within stipulated mandatory time
prescribed in the Code of Civil Procedure. Leave to register Summons
for Judgment is already granted. Now, Summons for Judgment is for
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SJ 54/18 IN SUM.1143/16 ORDER 4
order. However, Court can extend time to file Summons for Judgment,
just on the ground that Summons for Judgment is not filed within
limitation, the other point raised by parties can not be discarded.
Therefore, at this stage it is not proper to go back and see whether
Summons for Judgment is filed within limitation or not. However, it is
not desirable to dismiss Summons for Judgment on the ground that it is
not filed within limitation because if plaintiff explains delay then
discretion is vested with Court to condone the delay for filing Summons
for Judgment. Here already leave to file Summons for Judgment is
granted therefore, it is not necessary to discuss more on this point.
6. Next objection from the side of defendant that false suit is filed.
He has good case to defend the suit. Regarding territorial jurisdiction, it
can be said that the defendant has good defence to contest the suit.
7. It is one more ground of defence that the suit is not based on bill
of exchange, Hundi and promissory note etc. as prescribed under Order
XXXVII Rule 1(2). In reply the plaintiff submitted that the invoice is the
contract between the parties. However, whether invoice can be called as
contract that facts needs to be decided on merit. The defendant has
flatly denied the invoice filed by the plaintiff. The question of contract
is necessary to decide. Therefore, the defendant is entitled to leave to
defend the suit unconditionally. In such circumstances, Summons for
Judgment needs to be rejected and defendant is permitted to contest
the suit unconditionally. Hence, the following order is passed:
O R D E R
1. Summons for Judgment No.54/2018 stands
rejected.
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SJ 54/18 IN SUM.1143/16 ORDER 5
2. Defendant is allowed to defend the suit
unconditionally.
3. The Summons for Judgment No.54/2018 is
disposed of accordingly.
(C.V.Patil)
Adhoc Judge,
City Civil Court,
Date: 06.12.2021 Gr.Mumbai.
Dictated on: 06.12.2021
Typed on : 08.12.2021
Signed on : 10.12.2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
10/12/2021 5.40p.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
06/12/2021
JUDGEMENT /ORDER signed by P.O. on 10/12/2021
JUDGEMENT /ORDER uploaded on 10/12/2021
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