Final Order 2

Order Details: Copy of Judgment
Pdf Text: S.J.56/18 SUM.SUIT 775/17 1
IN THE CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT NO.56 of 2018
IN
SUMMARY SUIT NO.775 of 2017
(CNR.NO.MHCC010025372018)
M/s. Stealth Management Solutions
Pvt.Ltd. A company incorporated under
Companies Act, 1956 having its Regd.
Office at 712, B Wing, Kanara Business
Centre, Behind, Everest Building,
Laxmi Nagar, Ghaatkopar(E),
Mumbai400 075. ...Plaintiff
V/s.
M/s.Fountain Dry Fruit Stores Pvt.
Ltd. A company incorporated under
Companies Act, 1956 having its Regd.
Office at Prakash Bldg.No.2, 1st floor,
Flat No.2, Ridge Road, Walkeshwar,
Mumbai400 006 and one of its office
At A to Z Industrial Estate, Annex 2,
Ganpatrao Kadam Marg, Lower Parel
Mumbai 400 013. ...Defendant.
Appearances:
Advocate Mr.Maravoor for the Plaintiff.
Advocate Mr. Shirole for the Defendant.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATED : 18TH DECEMBER 2019
ORDER
1. This is summons for judgment for recovery of Rs.1,94,358/
(Rupees One Lakh Ninety Four Thousand Three Hundred and Fifty
Eight only) with interest @ 18% p.a.on the principal amount of
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Rs.1,28,534/.
2. According to plaintiff, it is a Registered Security Agency supplying
security guards to various commercial and industrial establishments. On
the representation of the defendant and work orders placed by the
defendant, the plaintiff supplied the security guards to the defendant.
The plaintiff issued bills invoices dated 03/05/2014, 03/06/2014,
03/07/2014 and 08/08/2014 for total amount of Rs.128,534/. The
defendant however failed to pay the amount of Rs.128,534/.
Therefore, the plaintiff is entitled to receive interest @ 18% p.a. for the
delayed payment. Vide legal notice dated 29/03/2016, the plaintiff
called upon the defendant to pay the amount of Rs.1,64,983/ which
also included interest @ 18% p.a. on the principal amount. Despite
service of notice the defendant did not comply to it. At the institution of
the suit, the amount due and payable by the defendant was
Rs.1,94,358/. Therefore, the plaintiff claimed decree for the recovery
of said amount with interest @ 18% p.a..
4. The defendant filed reply. According to it there is no written
contract between the plaintiff and defendant and therefore, the
summary suit is not maintainable. The defendant further contended
that the Security Guards suppllied were not proper and did not conduct
their duties efficiently and properly and hence, the defendant was
forced to discharge the security guards and discontinue the services
provided by the plaintiff. The security guards were not responsible in
their work which resulted in damage to the defendant on various
occasions. The plaintiff made the same security guards work for
multiple shifts at a stretch which resulted in lack of efficiency. Even
after making requests for rotation of shifts the plaintiff did not take any
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action. The defendant, then, had to discontinue the services. The
defendant had intimated about it to the plaintiff by telephonic calls and
in person also. However, the plaintiff had failed to refuse to take any
action. Therefore, there is bonafide dispute as to if any amount is
payable to the plaintiff or not. The invoices have been issued with
malafide intention. The defendant contended that no amount is due and
payable by it to the plaintiff.
5. Considering the material on record and submissions and
arguments on behalf of the plaintiff points arise for determination along
with my findings thereon for the reasons recorded are as under:
POINTS FINDINGS
1. Whether the plaintiff is entitled
to summons for judgment?
Plaintiff is entitled to principal
amount of Rs.,1,28,534/ with
simple interest @ 6% p.a.
2.Whether the defendant is entitled
to leave to defend? If yes
conditional or unconditional?
No
3. What order? As per final order
REASONS
AS TO POINTS NO.1 TO 3.
6. The Ld. advocate on behalf of the plaintiff argued that the
invoices show the claim of the plaintiff. Despite service of notice the
defendant did not reply to the notice. The defendant admitted that the
security guards were provided. Thus, the claim of the plaintiff is
admitted by the defendant. The defendant did not come to argue the
matter. Therefore, in this background, the summons for judgment has
to be allowed.
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7. Worth to note that neither the defendant nor its advocate
appeared to advance arguments despite sufficient opportunity.
8. Having considered the plaint and the reply of the defendant as a
whole, it is clear that there is no dispute that the plaintiff had provided
security guards to the defendant. It is also not disputed that the invoices
dated 03/05/2014, 03/06/2014, 03/07/2014 and 08/08/2014 were
raised by the plaintiff. True, that the invoices are not signed by the
defendant but in the background of admitted fact that the defendant
was provided with the security guards, the defendant used the security
guards and admittedly the invoices were raised, it has to be said that
the invoices sufficiently constitute written contract.
9. The defendant has contended that the security guards were not
efficient, were not proper and they did not conduct their duties
properly. However, there is nothing on the record to show that the
security guards were not proper, inefficient and not discharging their
duties responsibily. If they were so, the defendant would have issued
memo/notice to such security guards. The defendant would have given
written notice to the plaintiff or the defendant would have in writing
raised its grievances before the plaintiff. However, no such course has
been adopted by the defendant. Further, the contentions that security
guards were irresponsible, improper, inefficient, are vague. There has
been no specification as to why they would be referred as improper,
inefficient or irresponsible. No instances of any such behaviour have
been demonstrated in the reply. All the said contentions in the reply are
vague. It seems that the same contentions have been raised merely for
the sake of defence without any substance. All the contentions as raised
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by the defendant in that regard are nothing but afterthought. Therefore,
the defence is vague, not specific, not reliable and not probable.
Admittedly, notice of demand dated 29/03/2016 was served on the
defendant. However, even at that time the defendant did not take pains
to reply the said notice. Therefore, it seems clearly that the contentions
raised are nothing but afterthought.
10. The defendant pointed out that the amount as mentioned against
the invoice dated 03/05/2014 in the notice is Rs.37,661/. Whereas, the
amount mentioned against the same invoice in the plaint is Rs.38,343/.
Thus, there is variation in the said amount. It may be that the amount
mentioned in the demand notice dated 29/03/2016 in respect of
invoice dated 03/05/2014 as Rs.37,661/ may be some typographical
error. That cannot be a reason to reject the summons for judgment.
11. In view of the above circumstances, the defence as put forth is
vague. It is not probable. Resultantly, the defendant is not entitled to
leave to defend. On the other hand, the plaintiff is entitled to summons
for judgment regarding the principal amount of Rs.1,28,534/. As
regards the claim of interest, the plaintiff has sought interest @ 18%
p.a.. However, the invoices do not contain any such clause of interest.
Considering the over all circumstances, it is just and proper to grant
interest @ 6% p.a. from the date of invoices till realization of amount.
Hence, point No.1 is answered in the affirmative as that the plaintiff is
entitled to principal amount of Rs.,1,28,534/ with simple interest @
6% p.a. from the date of invoices till realization of the amount whereas,
point No.2 is answered in the negative. In answer to point No.3 order as
follows is passed:
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ORDER
1. The summons for judgment No.56/2018 is allowed as under:
2. The defendant shall pay to the plaintiff amount of Rs.1,28,534/
(Rupees One Lakh Twenty Eight Thousand Five Hundred and
Thirty Four only) with interest @ 6% p.a. from the date of
invoices till realization of amount.
3. Leave to defend is rejected.
4. Decree be drawn up accordingly.
5. The summary suit No.775/2017 and summons for judgment
No.56/2018 are disposed.
(Deepak L. Bhagwat)
AdHoc Judge,
Date: 18/12/2019 City Civil Court, Gr. Mumbai
Dictated on : 18/12/2019
Transcribed on : 23/12/2019
Signed on :24/12/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
23/12/2019 at 3.45p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Shri.Deepak L. Bhagwat
(C.R.NO.28)
Date of pronouncement of 18/12/2019
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Judgment/Order
Judgment/Order signed by P.O. on 24/12/2019
Judgment/Order uploaded on 03/01/2020
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