Final Order 1

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MHCC010028322019
IN THE COURT OF JUDGE CITY CIVIL AT GREATER MUMBAI
SUMMONS FOR JUDGMENT NO. 91 OF 2019
IN
SUMMARY SUIT NO. 4786 OF 2010
(HIGH COURT SUM.SUIT NO.3103 OF 2010)
M/s. Relogistics (India) Pvt. Ltd. a
company duly registered under the
Companies Act 1956 having their
registered office at Plot No.17, State
Transport Road, Next to Khira
Industrial Estate, Santacurz (West),
Mumbai-400 054.
...Plaintiff
VERSUS
V. Rupesh Kumar of Raipur an adult
Indian Inhabitant having his address at
Road No.2, Maruti Nilayam Opp:Dixit
Doers, Gondwara, Raipur, Chattisgarh
Pin-492004 carrying on business in the
name and style of M/s. Chittor Vellore
Road lines as well as M/s Tamilnadu
Kerala Transports as sole Proprietor
thereof.
...Defendant
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– 2 – SJ No.91-19 in
Suit No.4786-10
Appearance :
Ld. Adv. Mr. Vipul Shukla for plaintiff.
None for defendant.
CORAM : DR. S. D. TAWSHIKAR
(Court Room No.61)
DATE : 07-10-2022.
ORAL ORDER
(Dictated and pronounced in Open Court)
Plaintiff has taken out present Summons for Judgment as
per Sub rule (4) of Rule 3 of Order XXXVII of Code of Civil Procedure,
1908 (hereinafter referred as ‘CPC’ for short) and thereby claims
Judgment against defendant for recovery of amount of Rs. 22,06,685/-
along with further interest at the rate of 18% p.a. on Rs.15 lakhs from
the date of filing of the suit till its realization.
Plaintiff’s case in brief:-
2. Plaintiff contends that they are carrying on business of
providing transportation and logistic service. Defendant is a
transporter/broker. Plaintiff claims that defendant approached to the
plaintiff and represented that he would get orders from customers for
transportation. He showed his willingness to start the transport business
for to work with the plaintiff. Accordingly, Memorandum of
Understanding (MOU) dated 11-07-2006 came to be executed between
plaintiff and defendant. In view of the said MOU the defendant was
supposed to bring customers for the transportation. Plaintiff was to
transport the consignment and defendant was to collect the amount
from the customers and pay it to the plaintiff, after deducting his
share/brokerage. Plaintiff further contends that the said business
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– 3 – SJ No.91-19 in
Suit No.4786-10
continued for some time and plaintiff transported various consignments.
Defendant received the amount towards the transportation, however he
failed to make the payment to the plaintiff.
3. Plaintiff claims that an amount of Rs.14,33,185/- was due
and payable by the defendant. The plaintiffs’ Associate Company was
also to recover an amount of Rs. 1,74,48,190/- from the defendant with
respect to similar transaction. It is further contended that defendant
acknowledged his liability to pay the said amount to the plaintiff vide
emails dated 29-05-2007 as well as 19-06-2007. Defendant issued
three cheques of Rs.5 lakhs each in favour of the plaintiff to discharge
part of the outstanding liability. The said cheques when presented but
got dishonoured. Plaintiff issued a notice under Section 138 of
Negotiable Instruments Act, 1881 (NI Act for short).However, defendant
failed to pay the amount and therefore, plaintiff was constrained to
initiate proceedings under Section 138 of NI Act. The said proceedings
are submitted to be still pending before the 16th Court, Ballard Pier,
Mumbai. In this backdrop plaintiff has approached this Court with a
claim to recover the said amount.
4. The record reveals that in answer to Writ of Summons,
defendant had cause appearance through advocate Mr. Suraj Shukla.
The affidavit of service of Summons for Judgment reveals that the copy
of Summons for Judgment is also served on the advocate Mr. Suraj
Shukla. However, no reply has been filed. Sub Rule 6(a) of Rule 3 of
order XXXVII of CPC contemplates that if the defendant has not applied
for leave to defend, the plaintiff shall be entitled to judgment forthwith.
In matter in hand admittedly, defendant has not sought leave to defend.
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– 4 – SJ No.91-19 in
Suit No.4786-10
5. Plaintiff has placed on record certified copies of various
documents including the copy of MOU. The letter of acknowledgment of
liability issued by the defendant dated 28-07-2007, is also filed on
record. The copies of dishonoured cheques and cheque returned
memos are also placed on record. The demand notice issued to the
defendant along with its postal receipt and postal acknowledgment are
also placed on record.
6. In view of the above, there is nothing to dispute the claim
raised by the plaintiff. Ld advocate for the plaintiff also placed on record
copy of order dated 22-07-2015 passed by the Hon’ble High Court in
its Original Civil Jurisdiction, in Summons for Judgment No.49/2014.
Mr. Tripathi submits that sister concern of the plaintiff had also filed
the similar claim against the said defendant on the basis of same MOU.
He further submits the Hon’ble High Court pleased to allow the
Summons for Judgment and thereby decreed the suit. On perusal of the
order dated 22-07-2015, it is clear that the Hon’ble Court in its original
jurisdiction pleased to allow the claim of the sister concern of the plaint.
7. In matter in hand plaintiff claims recovery of Rs.15 lakhs
based on the dishonoured cheques. Admittedly, the plaintiff has also
initiated 138 proceedings and those are submitted to be at the stage of
the final arguments. No doubt, parties can be availed civil as well as
criminal remedies simultaneously. However, it needs to be noted that
there cannot be doubled liability towards the same transaction. It is
submitted that Ld. Metropolitan Magistrate has not yet passed any final
orders in the 138 proceedings. There is nothing to dispute claim raised
by the plaintiff and therefore plaintiff is entitled for recovery of Rs.15
lakhs from the defendant.
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– 5 – SJ No.91-19 in
Suit No.4786-10
8. It can be seen from the plaint that interest at the rate of
18% is claimed from the defendant of dishonour till realization of entire
amount. Ld. advocate for the plaintiff submits that in view of Section
80 of NI Act, plaintiff is entitled for interest shall not be less than 18%
p.a. of its execution. Admittedly, there is no agreed rate of interest for
delayed payment. Considering the nature of transaction, I do not find it
just and proper to grant interest at the rate of 18% p.a. It needs to be
noted that suit came to be filed in the year 2010. Enormous delay has
occurred in disposal of the suit. Therefore, I find it just and proper to go
by Section 34 of CPC and to grant interest at the rate of 6% p.a.
Admittedly plaintiff has filed complaint under Section 138 of NI Act
against present defendant for dishonour of same cheques. Hence so as
to avoid double liability on the part of defendant, if any, it is desirable
that plaintiff would place the copy of this order before concerned
Metropolitan Magistrate.
In the result, I pass following order.
ORDER
A. Summons for Judgment No.91 of 2019 is hereby partly allowed
with costs.
B. Defendant do pay an amount of Rs.15,00,000/-(Rupees Fifteen
Lakh Only) to the plaintiff along with interest at the rate of
6 % p.a. from the date of filing of the suit i.e. from 17/08/2010
till realization of entire amount.
C. Decree be drawn up accordingly.
D. Court fees be refunded as per rules.
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– 6 – SJ No.91-19 in
Suit No.4786-10
E. Suit No.4786 of 2010 (High Court No.3103 of 2010) is hereby
disposed of accordingly.
Date: 07-10-2022. (Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Court Room No.61
Dictated on : 07-10-2022
Transcribed on : 08-10-2022
Corrected on : 17-10-2022
Signed on : 18-10-2022
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Suit No.4786-10
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18-10-2022 at 5.45p.m. Mrs. Vidya V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
07-10-2022
JUDGMENT/ORDER signed by P. O. on 18-10-2022
JUDGMENT/ORDER uploaded on 18-10-2022
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