Order 5

Order Details: Notice of Motion
Pdf Text: NM No. 3565 / 2024
Chetan Vs. KS
Order (Exh.34) 1 of 6
MHCC010145992024
City Civil and Sessions Court, Mazgaon Greater Mumbai
Court Room No. 31 – Commercial Court
Notice of Motion No. 3565 / 2024
in
Commercial Suit No. 2 / 2019
Kuehne + Nagel Pvt. Ltd. … Applicant
(Original Defendant No. 6)
IN THE MATTER BETWEEN
M/s. Chetan Traders … Plaintiff
Vs.
M/s. K. S. Group & Ors. … Defendants
Appearances :
Defendant No. 6 : Adv. S. R. Soni
Plaintiff : Adv. Pradeep Dube
CORAM : PRASAD P. KULKARNI
COURT ROOM NO.31.
DATE : 28.01.2026
***************************************************************
ORDER
(Delivered on this 28th day of January, 2026)
1. Defendant no. 6 has moved this Notice of Motion with a
prayer to render Summary Judgment of dismissal of suit to the extent of
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Chetan Vs. KS
Order (Exh.34) 2 of 6
defendant no. 6. Notice of Motion is supported by an affidavit. Plaintiff
filed detailed reply affidavit on 04.12.2024 at Exh.38.
Crux of Notice of Motion and argument advanced on behalf of
defendant no. 6 would be summarized as under :
2. As per defendant no. 6, plaint nowhere disclose privity of
contract between plaintiff and defendant no. 6. In plaint, at para no. 2,
there is only one line which says that, “the plaintiff has rendered service
to defendant nos. 5 to 7 through defendant no. 1”. Learned Advocate
for defendant no. 6 by pointing out para no. 2, para no. 3, para no.
4(a), (b), (c) and prayer clause of the plaint submits that it is always
the case of plaintiff that services were rendered by defendant no. 1 and
defendant no. 1 alone was customer/client of plaintiff. Learned
Advocate for defendant no. 6 further submits that there is no contract,
invoice, acknowledgment on record, which could show some role of
defendant no. 6 in a transaction in dispute. Hence, defendant no. 6
prayed that summarily suit may be dismissed against defendant no. 6.
Gist of plaintiff’s’ reply and argument is as follows :
3. Learned Advocate for plaintiff submits that plaintiff and
defendant no. 1 are freight forwarding agents. In fact, defendant nos. 5
to 7 are beneficiaries as through defendant no. 1 they have availed
service of plaintiff. Plaintiff contended that Notice of Motion No.
2088/2022 moved by defendant no. 6 for permission to file Written
Statement was turned down on 08.02.2022. Chamber Summons No.
671/2020 moved by plaintiff was allowed on 03.09.2021. Defendant
no. 6 never challenged order passed on Notice of Motion No.
2088/2022. So, said defendant cannot dispute any factual aspect.
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Chetan Vs. KS
Order (Exh.34) 3 of 6
4. By pointing out paragraph no. 4(c) of the plaint, Learned
Advocate for plaintiff submits that plaintiff specifically pleaded that
plaintiff had forwarded cargo of defendant no. 1’s customer. He also
pointed out page nos. 60 and 61 of the plaint i.e. Tax Invoice Dt.
23.03.2018, Bill of Lading and submits that these documents clearly
shows name of defendant no. 6 as beneficiary of plaintiff’s services.
Therefore, plaintiff prayed that Notice of Motion may be dismissed.
5. Considering rival submissions, following points arise for
determination and I have recorded my findings for the reasons
discussed as under :
Sr. Points Findings
1 Whether there exists any ground to
dismiss suit summarily against defendant
no. 6?
In the Negative.
2 What order? As per final order.
REASONS
As to point nos. 1 & 2
6. Considering rival submissions, I have gone through record and
proceeding. Chamber Summons No. 671/2020 moved by plaintiff was
allowed by the then Presiding Officer on 03.09.2021 whereby defendant
no. 6 was added in the plaint. Though defendant no. 6 appeared in the
proceeding, but failed to file Written Statement on record. Notice of
Motion No. 2088/2022 moved by defendant no. 6 was turned down by
the then Presiding Officer and defendant no. 6 was not permitted to file
Written Statement. It appears these orders are never challenged by
defendant no. 6. In absence of Written Statement of defendant no. 6, he
cannot dispute factual aspects.
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Order (Exh.34) 4 of 6
7. On this backdrop, defendant no. 6 moved this Notice of
Motion on a ground of absence of privity of contract. I have gone
through plaint wherein plaintiff very specifically pleaded that plaintiff
and defendant no. 1 are freight forwarding agents. In para no. 4 (c)
plaintiff pleaded that it forwarded cargo of defendant no. 1’s customer.
In that context, Tax Invoice Dt. 23.03.2018 which is at page no. 60 of
plaint shows name of defendant no. 2 as well as Bill of Lading shows
name of defendant no. 2 as consignee. BL number on Tax Invoice and
Bill of Lading perfectly matched. So, at this stage, prima facie it reveals
that there are certain documents on record, which shows nexus of
defendant no. 6 in a transaction in question.
8. It is correct that pleading as against defendant nos. 5 to 7 is
cryptic. However, that alone cannot be a reason to dismiss the suit
against defendant no. 6 summarily without even going for trial. The
burden to prove transaction is on plaintiff. So, plaintiff shall have to
prove its case on the basis of oral and documentary evidence on its own
footing. Therefore, grounds are not satisfactory to summarily dismiss
suit / plaint as prayed for. For above reasons, this Court is not inclined
to accept submissions made on behalf of defendant no. 6. Hence, I
answer point no. 1 in Negative. Notice of Motion thus deserves to be
dismissed. Therefore, following order is passed :
ORDER
1. Notice of Motion No. 3565 of 2024 is dismissed.
2. No order as to cost.
3. Order is dictated and pronounced in Open Court.
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4. Notice of Motion No. 3565/2024 shall form part of
Commercial Suit 2 / 2019.
Mumbai
Dated : 28.01.2026
(Prasad P. Kulkarni)
Judge, City Civil & Sessions Court,
Court Room No.31 - Commercial Court,
Mazgaon, Greater Mumbai
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
28.01.2026 5.20 p.m. Prachi Y. Potdar
Stenographer - Grade I
Name of the Judge HHJ Shri. Prasad. P. Kulkarni
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
28.01.2026
Judgment/order signed by P.O on 28.01.2026
Judgment/order uploaded on 28.01.2026
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