Final Order 1

Order Details: Other
Pdf Text: MHCC010031002019
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
SUMMONS FOR JUDGMENT NO. 104 OF 2019
IN
SUMMARY SUIT NO.830 OF 2017
Mars Petrochem Private Limited
A company incorporated under the
Companies Act, 1956, having its registered
office at Industrial House, 25, Jackeria Bunder
Road, Cotton Green (W), Mumbai-400 033 ...Plaintiff
Vs.
1.Aadya Motor Car Company (India) Pvt. Ltd.
A company incorporated under the Companies Act,
1956, having its registered office at C-6, Sahara,
Veer Savarkar Nagar, Sant Dyaneshwar Marg,
Borivali (East), Mumbai-400 066.
2.Mr. Vajendla Ramananand Venkateshwara Rao
Age-Adult, Occupation-Business,
having address at 1201, Bhima Sir Pochkhanwala
Road, Worli Seaface, Worli, Mumbai-400 030.
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3. Mr. Milind Jagannath Surve
Age-Adult, Occupation-Business,
having address at C/6 Sahara, Veer Savarkar Nagar,
Sant Dyaneshwar Marg, Borivali (East),
Mumbai-400 066. ….Defendants.
Appearance:-
Adv. Ms. Khushabu Arora for the Plaintiff.
Adv. Mr.Devendranath S. Joshi for the Defendants.
CORAM :- HER HONOUR JUDGE
SMT. S. G. SHAIKH
CITY CIVIL COURT,
GR.MUMBAI (C.R.NO.59)
DATE :- 23/03/2021
ORDER
(Dictated and pronounced in Open Court.)
1. The plaintiff has brought this Summons for Judgment and
thereby directing the defendants to pay amount of Rs.13,88,019/- with
interest @ 24% per annum from the date of the suit till its realization.
2. Perused the documents on record. Heard advocates of the
parties at the length.
3. The defendants appeared on Summons for Judgment and
filed reply/ leave to defend within limitation on the principal reason
that:-
i) that the defendant has accepted delivery of 70000 litre
quantity of oil from the plaintiff , which costs around
Rs.5,57,888/- and not of the alleged quantity of oil from
the plaintiff.
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ii) that the plaintiff has not paid the VAT on the goods
delivered to the defendants time to time.
4. There is no dispute between the parties about the quantity
of 70000 litres oil received by the defendants from the plaintiff. The
question as to whether the plaintiff was bound to accept the delivery of
quantity of oil as alleged in the claim or not and as to whether the
plaintiff has not paid VAT on the goods delivered by the plaintiff to the
defendants and which is paid by the defendants, leads inference that
the defendants have probable defence. On going through the record of
the suit and documents of contract to decide it is necessary to record
evidence to decide the above defences. The Court has assessed the
evidence on the proof to be adduced by the defendants.
5. This Court neither intend to comment on the merits of the
case as this is not the stage of appreciation of evidence. But this case
being a case based on contract, it becomes necessary to generally assess
the strength of contract on the basis of documents on the test of basis
laws. It is also necessary to adjudicate the case on the basis of evidence
as to find out as to whether defendant is liable to pay amount claimed
by the plaintiff or not.
6. In the opinion of this court, whether the plaintiff is entitled
to recovery of amount as claimed is the triable issue in this suit and this
issue can not be brushed aside on the procedure of summary suit.
7. In this background, it is held that defendant have made out
a case to allow them to leave to defend this suit. Defendants have
plausible defence. Therefore, the defendants should be allowed leave to
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defend. However, if the defendants fails to prove the defence, it will
have to pay the amount claimed to the plaintiff. The delivery of oil of
Rs.5,57,888/- is not disputed by the defendants and neither the
defendants have paid the said amount. The claim of the defendants is of
set of from the plaintiff on account of payment of VAT and it is a triable
issue. Therefore, in order to curtail the possibility of any relief from
defendant's side, this court desire to put the condition on the
defendants to deposit 50% amount of Rs.5,57,888//- which comes
around Rs.2,78,944/-. The said amount shall be deposited by the
defendants within four weeks In consequence the Summons for
Judgment is liable to be dismissed. Hence, the following order is passed.
ORDER
1. Summons for Judgment No.104/2019 is dismissed.
2. Defendants are allowed to defend the suit on the condition that
they shall deposit amount of Rs.2,78,944/- within four weeks
from today and file her written statement.
3. Costs in cause.
4. Summons for Judgment No.104/2019 is disposed off accordingly.
(S.G. Shaikh)
Date : 23/03/2021 Judge, City Civil Court
Gr. Mumbai
Dictated on :23/03/2021
Typed on :23/03/2021
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
24/03/2021 11.10 a.m. ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.59)
Date of Pronouncement of
JUDGMENT/ORDER
23/03/2021
JUDGMENT/ORDER signed by
P.O.on
24/03/2021
JUDGMENT/ORDER uploaded on 24/03/2021
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