Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1074/20 in S.C. Suit 9216/99
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1074 OF 2020
IN
S.C. SUIT NO. 9216 OF 1999
(HIGH COURT SUIT NO. 4844 OF 1999)
CNR NO. : MHCC01-003083-2020
Hindustan Petroleum Corporation Ltd. …Plaintiff
Versus
Earnest Business Services Pvt. Ltd. ...Defendant
Appearance:
Mr. Shivprasad Page, Advocate for the Plaintiff.
Mr. P.D.Gandhy, Advocate for the Defendant.
CORAM : SMT. S.S. NAGUR,
JUDGE, (C.R.NO.20)
DATE : 22/02/2021
ORDER
The Notice of Motion is filed by the defendant to reject the suit
under Order VII Rule 11(a) of the Code of Civil Procedure. The Notice
of Motion is supported by affidavit of Aarti Ravindra Pawar, the
authorized signatory of the defendant. The defendant stated on oath
that Hindustan Oman Petroleum Company Limited, the original plaintiff
filed the present suit against the defendant to recover the amount of
Rs.73,28,936/- along with interest at the rate of 18% per annum from
the date of filling of the suit till its realization.
2. The defendant stated that the Agreement dated 01.04.1996 on
the basis of which the suit is filed for recovery was executed between
the original plaintiff and the defendant. The original plaintiff vide Deed
of Assignment dated 28.01.2002 assigned the alleged debt due by the
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defendant to the original plaintiff and the surviving rights of the
original plaintiff under the said Agreement dated 01.04.1996 including
the alleged right to recover the money. The plaint disclose no cause of
action. The present plaintiff has no locus standi to seek the prayers of
the plaint. The Agreement dated 01.04.1996 prohibits assignment or
transfer of rights of successors in law to derive any rights under the said
Agreement. The plaint is barred by law. The plaintiff is not entitled to
any relief as prayed in the plaint. Hence, prayed to allow the Notice of
Motion.
3. The plaintiff filed reply to the Notice of Motion through affidavit
of Shri. Nihar Mohapatra, Deputy General Manager of the plaintiff and
has denied the contents of Notice of Motion in toto. The plaintiff
contended that on 29.02.2020, when the suit was listed, it was
observed that the defendant not filed Written Statement. The time was
granted by the Hon’ble Court to defendant to take steps in that respect.
Thereafter, on 11.03.2020 this Notice of Motion is filed by the
defendant.
4. The plaintiff stated that the defendant is aware of its liabilities
and is taking out the proceedings in the present suit to delay the suit
and dismiss it at any cost. The Notice of Motion is vague and
unambiguous. It does not point out any specific illegality either in the
Agreement between the predecessor of plaintiff and the defendant or in
the Deed of Assignment between the predecessor of plaintiff and the
present plaintiff nor it specified any transfer provision of law whereby
plaintiff is barred from seeking the reliefs claimed in the plaint.
5. The plaintiff stated that the Chamber Summons bearing no. 1038
of 2011 seeking amendment to the cause title of the plaint was filed by
the plaintiff. The defendant replied it stating that there was delay on the
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part of the plaintiff in seeking the amendment. The Chamber Summons
was allowed on 23.03.2015 and the present plaintiff was brought on
record. The defendant filed Review Petition No. 16 of 2015 challenging
the order dated 23.03.2015 along with Notice of Motion No. 103224 of
2015 seeking condonation of delay in filling the Review Petition. The
plaintiff filed reply. The Review Petition was dismissed with cost by
order dated 15.10.2016.
6. The plaintiff stated that the defendant took out the Notice of
Motion No. 2613 of 2013 seeking stay to the suit in view of Section
22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985.
The plaintiff filed the reply to the Notice of Motion. The Notice of
Motion was dismissed by order dated 01.03.2018. Thereafter, the suit
was adjourned for filling the evidence of the plaintiff.
7. The defendant took out the Notice of Motion No. 2692 of 2018
seeking direction that the Hon’ble Court be pleased to direct the
plaintiff to compromise the matter in terms of Exhibit A to the Notice of
Motion. The plaintiff filed reply. During the pendency of the said Notice
of Motion, the defendant filed application dated 11.01.2019, to refer
the suit for mediation. The plaintiff opposed it. The Hon’ble Court
referred the suit for mediation. The mediation report was received as
“unsettled”. The attempt is made by the defendant again and again only
to prolong the hearing of the suit. Hence, prayed to dismiss the Notice
of Motion.
8. Heard advocate Mr.Shivprasad Page for the Plaintiff and Advocate
Mr.P.D.Gandhy for the Defendant. I have also gone through the written
notes filed by the defendant. Perused contents of Notice of Motion and
reply supported by Affidavit.
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9. Originally the suit was filed by Hindustan Oman Petroleum
Company Limited seeking recovery of Rs.73,28,926/- along with
interest at the rate of 18% per annum from the date of the suit. The
case of the plaintiff is that by letter dated 20.08.1998 informed the
defendant that the plaintiff would be vacating the suit premises on
22.09.1998 and would hand over the keys of the vacant premises on the
same day. The plaintiff requested the defendant to depute its
representative to take possession of the same on 22.09.1998. The
plaintiff once again asked the defendant to arrange to refund them the
deposit amount of Rs.63,30,000/- by Demand Draft at the time of
handing over keys of the vacant suit premises. The plaintiff is in
possession of the suit premises due to fault on the part of the defendant.
Therefore, the plaintiff is liable to pay the defendant compensation of
Rs.50,000/- per day and normal service charges of Rs.5,25,000/- per
month with effect from 22.09.1998 or any other date did not arise. The
defendant failed to pay the deposit amount. Hence, the suit is filed for
its recovery.
10. The Chamber Summons bearing no. 1038 of 2011 was filed by
the plaintiff to amend the plaint by condoning delay, if any as per the
schedule annexed to the chamber summons. The defendant filed reply
to the Chamber Summons and stated in para 2(a) that, “Admittedly the
plaintiff was dissolved in the year 2003 though the applicant was fully
aware of these facts, the present Chamber Summons has been taken out
in the year 2011 after delay of virtually 8 years”. The objections raised
by the defendant was only in respect of delay to file the Chamber
Summons to add the present plaintiff. After hearing the parties, my
predecessor has passed an order on 23.03.2015 and has made absolute
the Chamber Summons in terms of prayer clause (a) and (b).
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11. Advocate Gandhy for defendant argued that the present plaintiff
has no locus standi on the ground that the Agreement dated 01.04.1996
between the original plaintiff and the defendant does not authorize the
original plaintiff to assign the rights. Advocate Gandhy has drawn my
attention on para 1 of the Agreement to show that there is no statement
in the opening para of the agreement that there is any assignment of the
agreement in future. Clause 25 of the Agreement clearly states that no
alternations, addition or modifications shall be valid and binding unless
the same are reduced into writing and signed by both the parties to the
agreement. Therefore, any alternations, addition or modifications to the
terms of the Agreement dated 01.04.1996 could not have been done
without consent of the defendant. The original plaintiff executed
consent terms with the defendant. However, at no point of time the
original plaintiff indicated that it was undergoing voluntary liquidation
or that it assigned its right to the plaintiff. The Chamber Summons was
filed in the year 2011. Section 56 of the Easements Act, 1882 prohibits
transfer of a license which would necessarily include the rights arising
out of license agreements. A license is purely a personal privilege, which
cannot be delegated to someone else as done by the original plaintiff.
12. On the other hand, Advocate Page for plaintiff argued that the
Review Petition was filed by the defendant against the order passed in
Chamber Summons adding the present plaintiff. The defendant never
challenged the order of dismissal of the Review Petition. The Agreement
dated 28.01.2002 between the original plaintiff and the present plaintiff
is legal and valid. The Written Statement is not filed by the defendant
and the attempt is being made by the defendant to prolong the hearing
of the suit.
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13. Advocate for defendant has relied on the authorities reported in :-
(i) General Radio and Appliances Co. Ltd. and Ors. Vs. M.A. Khader
(Dead) by Lrs. : MANU/SC/0543/1986.
(ii) Kapilaben & Ors. Vs. Ashok Kumar Jayantilal Sheth Through
POA Gopalbhai Madhusudan Patel & Ors. in Civil Appeal Nos.
10683-86 of 2014 dated 25.11.2019.
That the Indian Contract Act do not particularly deal with
assignability of contracts that a party to contract cannot assign
their obligations/liabilities without the consent of the other
party. As a rule, obligations under a contract cannot be assigned
except with the consent of the promisee.
I have gone through the authorities relied by the defendant. The
facts are different. The above authorities are in respect of specific
performance and not to sublet the premises. The present suit is filed for
recovery of deposit amount of original plaintiff with the defendant. The
original plaintiff desires to vacate the premises and has asked to return
the amount of deposit. It is the contention of the plaintiff that one or
the other ground the defendant did not pay the deposit amount. The
original plaintiff is taken over by the present plaintiff by amalgamation
and has no right to recover the amount due to the amalgamated
company.
14. The record shows on one way or the other ground the defendant
has objected to proceed the suit. The consent terms between the
original plaintiff and the defendant is filed before the Hon’ble High
Court. The order of the Hon’ble High Court dated 10.10.2000 is as
under :-
“Consent terms signed on behalf of plaintiff, defendant
and respondents and by their Advocates taken on record
and marked “X” for identification. Undertakings in the
Consent Terms accepted. Motion disposed of in terms of
the consent terms.”
15. The original plaintiff was under liquidation and the present
plaintiff has taken over the original plaintiff by amalgamation thereby
the present plaintiff was impleaded in the suit vide order passed in
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Chamber Summons No. 1038 of 2011. Day-to-day affairs of the
management of the original plaintiff cannot be decided by the
defendant. The original plaintiff is amalgamated for its business with
the present plaintiff. Therefore, the Assignment Deed is executed
between the original plaintiff and the defendant dated 28.01.2002. The
defendant in the Chamber Summons to implead the plaintiff never
objected to implead the present plaintiff on the ground of the
Assignment in the Agreement. On the contrary, they are aware that the
original plaintiff is amalgamated and the present plaintiff has been
assigned the rights. The Review Petition filed by the defendant was
rejected. The present Notice of Motion is filed only to prolong the suit.
The defendant has not yet filed the Written Statement. There is consent
terms between the parties. The Notice of Motion is not tenable.
Considering the intention of the defendant to prolong the hearing of the
suit, the cost should be imposed on them. Hence, pass following order:-
ORDER
1. The notice of motion is rejected on cost of Rs.5,000/-
(Rs. Five Thousand Only) to be paid to be plaintiff.
2. Accordingly, the notice of motion is disposed of.
(SMT. S.S.NAGUR )
Judge
Dt.: 22/02/2021 City Civil Court,
Gr. Mumbai
Dictated on : 22.02.2021
Pronounced on : 22.02.2021
Transcribed on : 25.02.2021 & 26.02.2021
Signed on : 01.03.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
01/03/2021 2.55 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.20)
Date of Pronouncement of
Judgment/Order.
22/02/2021
Judgment/order signed by P.O on 01/03/2021
Judgment/order uploaded on 01/03/2021
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