Final Order 1

Order Details: Other
Pdf Text: ..1.. Summons for Judgment No.112/2019
MHCC010031962019 Presented on : 20/03/2019
Registered on : 20/03/2019
Decided on : 02/09/2024
Duration : 05Y 05M 14D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
SUMMONS FOR JUDGMENT NO.112 OF 2019
(CNR NO.MHCC01-003196-2019)
IN
SUMMARY SUIT NO.1475 OF 2017
Conde Nast (India) Pvt. Ltd.,
A Company incorporated under the provisions of the
Companies Act, 1956 having their Registered Office at
2nd floor, Darabshaw House, Shoorji Vallabhdas Marg,
Ballard Estate, Mumbai - 400 001.
]
]
]
]
] ..Plaintiff
Versus
M/s. Alaukik Innovations Pvt. Ltd.,
3rd and 4th floor, Venus House, Hira Modi Street,
Opp. Gujarat Samachar Press, Udhana Darwaja,
Surat, Gujarat – 380 099.
]
]
]
] ..Defendant
Appearance :-
Learned Advocate Ganesh Ambekar alongwith Advocate Sangita
Upadhyay for plaintiff.
None for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 02/09/2024.
J U D G M E N T
1 This summary suit is filed for recovery of amount
contending that plaintiff has come with the case that it is a company
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carrying business as publisher of Non-News Magazine ‘Vogue India’,
‘Conde Nast Traveller’ India, ‘Architectural Digest India’ and ‘GQ’.
Defendant is a customer, it has approached plaintiff in the month of
August-2016 with request to publish their advertorial/advertisement
pertaining to various products under the brand “ADAMANTINO” in the
plaintiff’s magazine and website and had placed orders in between
24/08/2016 to 25/01/2017. Plaintiff published the advertisement as
per the release orders in the magazine ‘GQ India’, ‘Vogue India’ and
website of plaintiff as per the specification of the defendant. After
publishing the advertisement as per the requirement of defendant,
plaintiff raised invoices totaling to sum of Rs.42,22,793/-. The amount
under the invoices were required to be paid within 30 days, but
defendant failed and neglected to pay the amount due, consequently,
plaintiff has called upon the defendant to pay, but in vain. Therefore,
plaintiff became constrained to file the suit for recovery of amount
bearing Summary Suit No.1475 of 2017.
2 Defendant appeared and tendered vakalatnama and
thereafter, plaintiff took out summons for judgment to which
defendant tendered reply denying the entitlement of plaintiff to claim
the decree by way of instant summons for judgment. It is the
contention of plaintiff that there is no privity of contract between
plaintiff and defendant. Defendant was only the agent for brand
ADAMANTINO and it was on the request of ADAMANTINO, defendant
had approached to plaintiff for publishing of advertisement in respect
of ADAMANTINO products and branding in various magazines and
digital platform. It is further contended that ADAMANTINO is a
necessary party to the suit. It is further submitted that as per the
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requirement of plaintiff, defendant company has issued release orders
on the instructions of ADAMANTINO in favour of plaintiff for
publishing advertisement of ADAMANTINO products in various
magazines. Defendant has admitted that plaintiff has published the
said advertisement in between September-2016 to May-2017 and
accordingly raised invoices aggregating an amount of Rs.42,22,793/-.
It is the contention of defendant that ADAMANTINO was in direct
contact with the plaintiff, thus, plaintiff should have raised invoices in
favour of ADAMANTINO and not against this defendant, however, with
malafide intention plaintiff has raised invoices against defendant
company. It is also contended that defendant has forwarded the
invoices to ADAMANTINO, but ADAMANTINO was facing financial
crisis. There was exchange of email between defendant and
ADAMANTINO to resolve and settle outstanding invoices and as per
the meeting held on 15/09/2017, promoter of brand ADAMANTINO
admitted the payment in respect of invoices, thus, it is the contention
of defendant that ADAMANTINO is liable to pay the amount claimed
and defendant is not directly responsible to pay the amount and
prayed for dismissal of summons for judgment.
3 The advocate for defendant remained absent at the stage
of hearing of summons for judgment. Hence, summons for judgment is
proceeded further without argument of defendant. It appears from the
roznama dated 10/03/2021, for want of instructions, the learned
advocate for defendant has filed pursis of discharge and contended
that withdrawal of vakalatnama is already intimated to defendant, but
defendant remained absent, hence, vakalatnama of advocate came to
be discharged.
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4 Heard the learned advocate for plaintiff. Perused the
record. It reveals from the record that defendant company has released
orders in favour of plaintiff to publish the advertisement. Defendant
has mentioned ADAMANTINO as the client of defendant, therefore, it
appears that ADAMANTINO was the client of defendant and defendant
has placed orders of advertisement on behalf of ADAMANTINO. Thus,
defendant was directly in touch with plaintiff and requested to publish
advertisement pertaining to ADAMANTINO products. Plaintiff has
published the advertisement as per the requirement of defendant,
therefore, defendant is directly responsible to pay the amount.
Defendant is at liberty to recover the same from ADAMANTINO,
however, he is liable to pay to the plaintiff. Defendant has not denied
that the amount under the invoices is not yet paid, therefore,
considering the admitted position, I am of the view that the defendant
has no defence to raise in this case.
5 The contention that ADAMANTINO is responsible to pay
the amount cannot be considered as ADAMANTINO is the client of
defendant and defendant has issued release orders for advertisement.
Therefore, defendant is directly responsible to pay the amount of
advertisement. Consequently, I find that defendant has failed to put
forth any reasonable defence. Therefore, suit of the plaintiff deserves
to be decree in terms of amount of invoices raised.
6 So far as interest is concerned, the plaintiff is claiming
interest at the rate of 21% per annum from the defendant, however, I
am of the view that it is an exorbitant rate of interest. No doubt the
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plaintiff has suffered loss in business and profit, due to failure to repay
the amount by the defendant. Had it been paid to the plaintiff as per
demand, it would have invested and would have earned profit
therefrom. Therefore, I am of the view that the plaintiff is entitled for
interest at the rate of 9% per annum from the date of default of each
invoice i.e. after expiry of 30 days from the date of each invoice, till its
full realisation.
7 As the defendant has made plaintiff constrained to file the
suit, it is also liable to pay the costs. In the result, I proceed to pass the
following order :-
ORDER
1. Summons for Judgment No.112 of 2019 in Summary
Suit No.1475 of 2017, is hereby made absolute.
2. Summary Suit No.1475 of 2017, is hereby partly
decreed with costs.
3. Plaintiff is entitled to recover an amount of
Rs.42,22,793/- alongwith interest at the rate of 9%
per annum from the date of default of each invoice
i.e. after expiry of 30 days from the date of each
invoice, till its full realisation from the defendant.
Sr.
No.
Invoice No. Invoice Date Amount
(Rs.)
1 AD/16-17/1204 30/09/2016 4,25,000/-
2 AD/16-17/1248 15/10/2016 4,25,034/-
3 AD/16-17/1298 15/10/2016 4,69,625/-
4 AD/16-17/1680 15/11/2016 4,69,625/-
5 AD/16-17/2073 29/12/2016 5,03,073/-
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Sr.
No.
Invoice No. Invoice Date Amount
(Rs.)
6 AD/16-17/2350 16/01/2017 2,12,543/-
7 DG/16-17/0341 31/01/2017 28,750/-
8 AD/16-17/2531 15/02/2017 2,12,543/-
9 DG/16-17/0372 28/02/2017 7,38,300/-
10 DG/16-17/0487 31/03/2017 5,75,000/-
11 DG/17-18/0065 31/05/2017 6,275/-
12 DG/17-18/0104 31/05/2017 1,57,025/-
Total 42,22,793/-
4. Court fees, if any, be refunded as per rule.
5. Decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court)
( Shaikh Akbar Shaikh Jafar )
Judge, City Civil Court, Mazgaon,
Mumbai, C.R. No.84.
Date: 02/09/2024.
Dictated on : 02/09/2024.
Transcribed on : 02/09/2024.
Signed by HHJ on : 04/09/2024.
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“Certified to be true and correct copy of the original signed order”.
04/09/2024
at about 1.20 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge, Court
Room No.84, Mazgaon, Mumbai
Date of pronouncement of Order : 02/09/2024
Order signed by Hon'ble Judge on : 04/09/2024
Order uploaded on : 04/09/2024
at about 1.20 p.m.
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