Final Order 1

Order Details: Other
Pdf Text: ..1.. Summons for Judgment No.88/2018
MHCC010033812018 Presented on : 09/03/2018
Registered on : 09/03/2018
Decided on : 24/07/2024
Duration : 06Y 04M 17D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
SUMMONS FOR JUDGMENT NO.88 OF 2018
(CNR NO.MHCC01-003381-2018)
IN
SUMMARY SUIT NO.1288 OF 2017
PETER ELECTRICALS PVT. LTD. )
A Company incorporated under the )
provisions of Companies Act, 1956, )
having its address at : )
215, Runwal Heights (Commercial) )
L.B.S. Marg, Mulund (West), )
Mumbai.400 080. )...PLAINTIFF
Versus
SHAPOORJI PALLONJI & CO. PVT. LTD. )
(SPCMG) a Company incorporated under )
the provisions of Companies Act, 1956 )
Contractor Building, Ground Floor )
Ramjibhai Kamani Marg, )
Ballard Estate, Mumbai.400 038. )...DEFENDANT
Appearance :-
Learned Advocate Sneha Sonawane for plaintiff.
Learned Advocate Kavita Pawar for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84
DATE : 24/07/2024.
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..2.. Summons for Judgment No.88/2018
ORDER
1 The plaintiff has filed this summary suit for recovery of
amount, contending that the plaintiff is carrying business as electrical
contractor in Mumbai. Defendant is a company in business of
constructions and other businesses. Defendant have issued various work
orders to the plaintiff for carrying electrical installation work at their 4
sites. After having completed the projects undertaken by it, plaintiff has
issued bills/invoices to the defendant duly certified by the concerned
engineers. The details of the bills/invoices shows that the plaintiff has
carried out work of Rs.1,89,29,305/- during the period of 26 months.
As per the specification given in paragraph No.3 of the plaint, defendant
made payment of Rs.1,37,22,001/- against invoices leaving balance of
Rs.52,07,304/-. It is further contended that the defendant has deducted
TDS of Rs.3,14,177/- and remitted to the IT Department pertaining to
the unpaid dues, thus, defendant has admitted its liability to pay the
amount due to the plaintiff. Having found failure on the part of
defendant to pay the amount, plaintiff issued notice through advocate
dated 06/03/2017, calling upon the plaintiff to pay Rs.55,32,621/-. The
defendants failed to pay the amount due, thus, it is the contention of
the plaintiff that it is entitled to recover the due amount of
Rs.52,07,304/- with interest at the rate of 21% per annum and
calculated the claim to Rs.63,92,428/- by filing this summary suit.
2 In response to the writ of summons, defendant appeared
thereafter, plaintiff took out instant summons for judgment. The
defendant replied by resisting the contention contending that the
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..3.. Summons for Judgment No.88/2018
plaintiff has failed to produce certified final invoice alongwith Work
Completion Certificates and further contended that the plaintiff fled
away from the site of the defendant without informing them. Therefore,
claim of plaintiff is not maintainable as per the provision of work order.
It is further submitted that the defendant has paid an amount of
Rs.5,00,000/- on 09/11/2017, which shows that the defendant has
clear intentions for making due payments to the plaintiff as per the
routine accounting process and as per the books of account. The
defendant denied that the plaintiff is entitled to recover the amount of
Rs.63,92,428/- and prayed for dismissal of summons for judgment and
grant of unconditional leave.
3 Plaintiff rejoined to the reply and denied the contention of
defendant. The plaintiff gave specification of work and amount paid in
paragraph No.2 of rejoinder. In paragraph No.18 of the rejoinder, the
plaintiff has admitted that the defendant has paid the amount
Rs.5,00,000/- on 09/11/2017 and re-iterated that the amount claimed
by the plaintiff is true and correct and it is entitled to recover the same.
4 Defendant tendered sir-rejoinder and denied the contention
of plaintiff. In paragraph 6(e) of the sir-rejoinder, the defendant has
replied to the paragraph No.10 of rejoinder of plaintiff. It is contended
that the amount certified as per the record of defendant is
Rs.1,57,08,829/- on which TDS has been deducted to Rs.3,14,177/- as
per the terms of work order clause, lastly prayed for dismissal of
summons for judgment.
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..4.. Summons for Judgment No.88/2018
5 Heard rival parties at length. It manifests from rival
pleadings that the defendant has admitted its liability to pay the
amount of Rs.1,57,08,829/- and plaintiff has contended that the
defendant has paid the amount Rs.1,37,22,001/-. Thus, as per the
admission of defendant, he is required to pay Rs.19,86,828/-. Plaintiff
has admitted the payment of Rs.5,00,000/- after filing of suit on
09/11/2017, thus, after deduction of this amount, the defendant is,
indisputably, liable to pay the amount of Rs.14,86,828/-.
6 So far as rival contention regarding failure to complete the
job work or failure to tender certified bills, these issues are triable issues
required to be established by the rival parties by adducing evidence.
Simultaneously, the plaintiff is also required to establish that it has
completed work of Rs.1,89,29,305/-. The defendant has admitted its
liability to pay the amount Rs.1,57,08,829/- and after deduction of
amount paid, the amount of Rs.14,86,828/- is still remaining to be paid,
therefore, I am of the view that the defendant is required to pay the
balance admitted amount i.e. Rs.14,86,828/- to raise defence, as per the
guidelines of judgment passed by the Hon’ble Supreme Court in the
case of B. L. Kashyap and Sons Ltd., Vs. M/s. JMS Steels and Power
Corporation and another reported in 2022 LiveLaw (SC) 59.
7 In view of the above discussion, I am of the view that the
defendant is entitled for conditional leave. Consequently, I proceed to
pass the following order :-
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..5.. Summons for Judgment No.88/2018
ORDER
1. Summons for Judgment No.88 of 2018 in Summary
Suit No.1288 of 2017, is disposed of in terms of
following order -
2. Leave is granted to the defendant to defend the suit on
depositing in this Court a sum of Rs.14,86,828/-
within a period of one month from the date of order
and shall file written statement within stipulated
period.
3. After depositing the amount, the PLA Section is
directed to invest the same into Fixed Deposit, till
disposal of the suit or till further order.
4. If this conditional order of deposit is not complied
within the stipulated period, as mentioned
hereinabove, the plaintiff shall be entitled for an
ex-parte decree against the defendant after obtaining
a non-deposit certificate from the PLA Section.
5. Summons for judgment is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Mazgaon
Mumbai
Date: 24/07/2024. Court Room No.84
Dictated on : 24/07/2024.
Transcribed on : 25/07/2024.
Signed by HHJ on : 25/07/2024.
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..6.. Summons for Judgment No.88/2018
“Certified to be true and correct copy of the original signed order”.
26/07/2024
at about 5.45 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 : 24/07/2024
Order signed by Hon'ble Judge on : 25/07/2024
Order uploaded on : 26/07/2024
at about 5.45 p.m.
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