Final Order 1

Order Details: Other
Pdf Text: IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
SUMMONS FOR JUDGMENT NO. 131 OF 2019
IN
SUMMARY SUIT NO.342 OF 2019
A. Navinchandra Steels Pvt. Ltd.
Company Incorporated and registered
under the provisions of the Companies Act,
1956 and having its, New Registered office at
704, Ecstasy Commercial Building, Nirmal Life
Style Ltd. City of Job, Jata Shankar Dosa
Marg, Mulund West, Mumbai – 400 080.
Maharashtra.
... Plaintiffs
V/s.
Orbit Venture Developers
a firm is Partnership firm incorporated under
the Section 58 of the Indian Partnership Act,
1932, Registered office Address:
Sarkar Heritage, Jairajnhoy Peerbhoy,
Santitorium Compex Kane & B.J. Road,
Bands Stand, Bandra -West ,
Mumbai – 400 050.
... Defendant
Appearance:-
Plaintiff in person.
Adv. Ashish Suryawanshi for the Defendant.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 10.1.2022
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ORDER
(Dictated and pronounced in Open Court.)
1. The plaintiff has brought this Summons for Judgment thereby
directing the defendant to pay a sum of Rs.73,032/- with interest at the
rate of 18% per annum from the date of filing of the suit till its
realization.
2. Perused the documents on record.
3. The defendant appeared on Summons for Judgment and
filed reply/ leave to defend on the following grounds:-
i) The particulars of claim of Rs.73,032 - and the terms and
conditions about interest thereon at the rate of 30% p.a and
further interest at the rate of 18% p.a from the date of filing of
suit till its realization are false, fake and baseless.
ii) The defendant has not signed and never authorized any
person to sign on its behalf any document which is annexed to
the present suit of plaint. All the documents and invoices are fake.
Material documents are deliberately suppressed by the plaintiff.
They have manipulated many documents like debit note. The
debit notes have not been acknowledged by the defendant. The
conduct of plaintiff is lacking in bonafides and the claim of
plaintiff is false.
iii) The plaintiff’s proceeding is liable to be rejected in view of
gross delay and latches in approaching this court.
iv) The defendant is not under any legal liability to pay any
amount to the plaintiff.
v) The plaintiff has failed to make out case to be granted any
relief under the provisions of order XXXVII of the C.P.C.
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4. It is the gist of leave to defend that the defendant is not
liable to pay the alleged amount to the plaintiff.
5. On perusal of leave to defend moved by the defendant, it
transpires that the defendant has raised objection to the tenability of the
suit and denied the suit claim partially. The question is whether any
cause of action arose for the filing of the suit claim for the total claim
amount averred by the plaintiff or not. Secondly, it is to be proved
whether the debit note were issued by the plaintiff and acknowledged
by the defendant or not. The submissions and contentions made by the
defendant leads to the inference that the defendant has probable
defence and the controversy has to be decided on merit.
6. The plaintiff has made submission in the summons for
judgment that defendant company had placed certain puchase orders
for supply of goods. The goods were supplied by them. As per the terms
and conditions settled between them, the defendant ought to have
made the payment within a period of 90 days from the date of invoices
and in the event of non payment within a period of 90 days the
defendant company will be liable to pay an interest at the rate of 30%
p.a . After repeated request, the defendant had made payment of the
outstanding amount of Rs.49,17,467/- but it is not complied within
limitation. As per the agreed terms interest on delayed payment has
been charged within interest at the rate of 24% p.a instead of 30% p.a
Accordingly, debit note against interest due was raised by the plaintiff
for Rs.1,17,776/- and same is acknowledged by the defendant. Same
payment has been made by defendant and same amount is adjusted by
plaintiff. Therefore, as per the debit notes, the defendant is liable to
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pay the amount of Rs.73,032/- for the delay in making the payment.
The summons for judgment may be made absolute for said amount with
interest. It reveals from record that the defendant , though denied the
suit averments, it reflects from the leave to defend application that
certain transactions regarding principal amounts are indirectly admitted
by them but the rate of interest of 24% or 30% for delayed payment is
disputed.
7. I have perused leave to defend submission of the
defendant. It transpires that the suit claim is denied by defendant on
various grounds including liability for payment of outstanding amount
and rate of interest on delayed payment . The cause of action and the
nature of suit is also disputed by the defendant.
8. The following principals can be spelled out in the matter of grant
or refusal of leave to defend summary suits after considering the legal
provisions and facts of the suit:
a) Where no defence is indicated, then the leave to defend must
be refused.
b) Where none of the defences sought to be raised is tenable in
law, then leave to defend must be refused.
c) Where part of the amount claimed by the plaintiff is admitted
by the defendant to be due from him, leave to defend shall not be
granted unless the amount so admitted to be due is deposited by
the defendant in court.
d) Where the facts disclosed by the defendant indicate that a
triable issue is raised, but there is no substantial defence, then
leave to defend may be granted only upon such terms as may
appear to the court or judge to be just.
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e) Where the facts disclosed by the defendant indicate that he
has a substantial defence to raise, unconditional leave to defend
must be granted.
9. To my mind, upon consideration of the facts of the case and the
legal position, this case would fall under category (d) as narrated
above. Certain triable issues are focused by the defendant and the same
are evident from the record.
10. This Court neither intend to comment on the merits of the case as
this is not the stage of passing order on merit or appreciation of
evidence. But this case being a case based on contract between the
parties, it becomes necessary to assess the merits of case on the strength
of the averments and contentions raised by the parties and the
documents produced in support of said averments and contentions. 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 the amount claimed by
the plaintiff or not.
11. Therefore, I am of the opinion that, the triable issues can not be
brushed aside on the count of procedure of summary suit.
12. In this background, I hold that the that defendant has
successfully made out a case to allow them to leave to defend this suit.
Defendant has plausible defence. Therefore, the defendant should be
allowed leave to defend. However, if the defendant fails to prove the
defence, it will have to pay the amount claimed by the plaintiff. The
principal amount comes around Rs.73,032/-. The suit is filed under
Order XXXVII of C.P.C for getting speedy recovery. In such circumstances
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I hold that leave to defend can be granted subject to direction to the
defendant to deposit some amount as security towards suit claim. In
consequence, the Summons for Judgment is liable to be dismissed and
leave to defend is justified to be granted conditionally. Hence, the
following order is passed.
ORDER
1. Summons for Judgment No.131 of 2019 is dismissed.
2. Leave to defend the suit is granted to the defendant
subject to deposit of amount of Rs.35,000/- within four
weeks in court from the date of this order in Summary
Suit no. 342/2019.
3. Defendant is further directed to file written statement on
record within four weeks from the date of this order.
4. Costs in cause.
5. Summons for Judgment No. 342/2019 is disposed off
accordingly.
Date: 10.1.2022.
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Dictated on : 10.1.2021
Typed on : 10.1.2021
Signed on : 11.1.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11.1.2022. 3.00 p.m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ A.H.KASHIKAR (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
10.1.2022.
JUDGMENT/ORDER signed by
P.O.on
11.1.2022.
JUDGMENT/ORDER uploaded on 11.1.2022.
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