Final Order 1

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MHCC010033012019 Presented on 15-03-2019
Registered on 25-09-2019
Decided on 10-08-2023
Duration 04Y : 4M: 26D
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMONS FOR JUDGMENT NO. 116 OF 2019
IN
SUMMARY SUIT NO. 73 OF 2017
M/s. Blue Star Limited ]
A Company incorporated and registered under ]
the provisions of the Companies Act,1913 and ]
having its registered office at- ]
Kasturi Building, Mohan T Advani Chowk ]
Jamshedji Tata Road, Mumbai- 400 020. ]...Plaintiff
Versus
M/s Nirmal Aircon Private Limited ]
Incorporated and registered under the ]
provisions of the Companies Act 1956 and ]
having its registered office at- ]
382/A/B, Patel Building, Near J. C. Hospital ]
G. K. Marg, Worli Naka, Mumbai – 400 018. ]...Defendants
Appearance :
Ld. Advocate Mr. Roshan Ansari for plaintiff.
Ld. Advocate Mr. Ram Mohite for defendant.
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 10/08 /2023.
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Order on Summons for Judgment
(Pronounced in open Court)
1] This suit is filed for recovery of the amount of
Rs.20,02,500/-. On serving the summons for judgment, the defendant
applied for the leave to defend the suit and prayed for dismissal of
summons for judgment. While resisting the summons for judgment, the
defendant has raised the several pleas and alternatively prayed for
granting the unconditional leave. However, as per the submission of the
plaintiff, the defendant has no substantial defence and no triable issue is
raised and therefore, prayed for passing the decree by signing the
judgment.
2] On hearing both the parties and going through the
pleadings and the documents placed on record by them, it is found that
there is no dispute that there were business transactions between the
plaintiff and the defendant. According to the plaintiff, as per the order
placed by the defendant, the plaintiff supplied Air Conditioner Units
and other ancillary equipments and machineries during the period from
April, 2014 to April 2015, hereinafter referred to as “the goods”. The
plaintiff had raised the invoices on the defendant. According to the
plaintiff, amount of Rs.52,00,000/- of the five invoices was outstanding.
3] There is no dispute that the defendant had sent the e-mail
dated 21/09/2016 wherein the defendant admitted the outstanding
amount of Rs.52 lakhs. The copy of the said e-mail letter suggests that
the defendant had agreed to repay the said amount in four installments
anda the schedule of the four installments has been mentioned in the
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said letter stating therein that the defendant will adhere to the said
schedule at any cost. It is also admitted position that thereafter amount
of Rs.34 Lacs has been received by the plaintiff from the defendant.
Thus, amount of Rs.18 lakhs was outstanding against the defendant and
for recovery of the said amount, present suit is filed claiming the
interest thereon and therefore, according to the plaintiff, it is entitled to
recover the amount of Rs.20,02,500/-.
4] However, according to the defendant, it is entitled to credit
note of Rs.12 lakhs relating to the sales commission and amount of Rs.4
lakh relating to the service commission and it is also entitled to the
credit note of Rs.1,71,356/- towards the excess payment made and
thus, according to the defendant, the amount of Rs.17,71,356/- is due
and payable by the plaintiff and therefore, actual outstanding amount
against it comes to Rs.28,644/- and it is ready to pay the amount of
Rs.28,644/-.
5] As per the submission of the counsel for the plaintiff, the
defendant was not the dealer of the plaintiff company and the
defendant was only the customer and therefore, sales commission or the
service commission cannot be given to the defendant and therefore,
there is no question to give the credit note to the defendant. The
plaintiff has also denied that the defendant has made any excess
payment. It is important to note that the defendant has placed nothing
to suggest that there was any agreement to suggest that the defendant
was entitled to the sale commission or the service commission. On the
contrary, it is appearing from the contents of the e-mail sent by the
defendant that the defendant had unequivocal terms admitted the
liability of payment of Rs.52 lakhs and agreed to pay it in four
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installments. It is appearing that thereafter the defendant has paid
Rs.34 lakhs and therefore, amount of Rs.18 lakhs remained outstanding
against the defendant. It is also appearing from the e-mail dated
02/08/2015 that the defendant had again admitted his liability to pay
the outstanding amount but had requested to give the credit note. It is
appearing from the e-mail dated 2nd of August, 2015 issued by the
plaintiff to the defendant that the plaintiff had stated that the credit
note will be considered only after receiving the entire outstanding sum.
But the contents of the said e-mail are not clear whether the plaintiff
wanted to give the credit note in respect of the excess payment or in
respect of the commission. The counsel for the plaintiff submits that
only with the intention to facilitate the recovery of the outstanding
amount, it was stated in the e-mail that the credit note will be
considered. Having regard to the contents of the e-mail sent by the
plaintiff to the defendant, there is a scope to assume that the defendant
might be entitled to the credit note. But, there is no admission of the
plaintiff’s side as to for how much amount the plaintiff was ready to
give the credit note. The plaintiff has not specifically denied in the said
e-mail that the defendant is not entitled to the credit note. Therefore, it
can be said that the defendant has raised the triable issue; however,
having regard to the quantum of the outstanding amount and to secure
the interest of the plaintiff also, I’m of the view that it would be just and
proper to grant the conditional leave to the defendant to defend the suit
and it would be just and proper to direct the defendant to deposit 50%
of the outstanding balance amount Rs.18 lakh and as such, I proceed to
pass the following order.
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O R D E R
1] Leave to defend the suit is granted to the defendant subject to
depositing the amount of Rs.9 lakhs within the period of one
month.
2] On depositing the said amount, the defendant to file its written
statement within 30 days
3] In view of granting the conditional leave to defend the suit,
summons for judgment No.116/2019 stands disposed of as
dismissed.
Mumbai (K. P. Shrikhande)
Date: 10/08/2023 Judge, City Civil Court Gr. Mumbai.
Court Room No.61
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
14-08-2023 at 11.30 a.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri K. P. Shrikhande
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
10-08-2023
JUDGMENT/ORDER signed by P. O. on 11-08-2023
JUDGMENT/ORDER uploaded on 14-08-2023
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