Final Order 1

Order Details: Other
Pdf Text: MHCC010053412019 Presented on 30-05-2019
Registered on 30-05-2019
Decided on 27-09-2023
Duration 04Y: 03M: 28D
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMONS FOR JUDGMENT NO. 174 OF 2019
IN
SUMMARY SUIT NO. 1292 OF 2015
B.K.Surface Coating ]
Flat No.11, Shivnun Cooperative Housing Society ]
Limited, ]
Opposite Sita Industrial Estate, Mahtaney Park, ]
R. C. Marg, Chembur, Mumbai 400 074. ]...Plaintiff
V/s.
1. Thysenkrupp Industries India Private Limited,]
Having its registered address at ]
154 C, Mittal Tower, 15th Floor, Nariman Point, ]
Mumbai 400 021, ]
Also at ]
Thysenkrupp Industries India Private Limited, ]
Pimpri, Pune 411018 ]
Maharashtra, India. ]
2. Malabar Erectors ]
H.O. 4/100 P.O. Chaliyam, ]
Kozikode (DT), Kerala-673301. ]...Defendants
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Appearance :
Ld. Adv. Nikhil Patil for the plaintiff.
Ld. Adv. Shivanee Srivastava for defendant No.1.
Ld. Adv. Ashutosh Kaushik for defendant No.2.
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 27/09/2023.
Order on summons for judgment
(Passed on 27.09.2023)
This suit is filed for recovery of the amount of Rs.21,70,172/-. On
the appearance of defendants No.1 and 2, the plaintiff applied for
leave to sign the judgment. Both the defendants filed their separate
reply to summons for judgment and sought the leave to defend the
suit. Brief facts of the plaintiff’s case may be narrated in order to
decide to leave to sign the judgment.
2] The plaintiff is engaged in the business of sand and short
blasting, industrial painting, epoxy coating and gunting. The
defendant No.1 is a private limited company and deals in services
ranging from plant design and engineering to building industrial
plants, marine systems and elevators to engine components, bearings
and undercarriages. Defendant No.2 is a proprietary concern and sub-
contractor of defendant No.1.
3] Costal Energen private limited had given a contract to
defendant No.1 for installing coal handling plant at 1200 MW coal-
fired thermal power plant at Tuticorin, Tamil Nadu, India. Defendant
No.1 had requested the plaintiff to do copper slag blasting and
painting work at the said power plant site. The plaintiff had given the
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quotation dated 21/03/2011 to the defendant No.1 mentioning the
rates for performing the said work. Defendant No.1 had accepted the
said quotation and requested to mobilize the necessary resources for
performing said work, and directed the plaintiff to perform the said
work under the supervision of defendant No.2.
4] Representative of defendant No.1 had assured and
represented to the plaintiff that they would ensure and be responsible
for making the payment to the plaintiff for the said work. Defendant
No.1 had also requested to raise the invoices on defendant No.2 for
the said work and had assured that defendant No.1 would make sure
that the payments will be made by defendant No.2.
5] In view of the representation and accepting the quotation
by defendant No.1, the plaintiff sent and delivered the necessary
equipments and materials at the said power plant site for performing
the work, and started the work from the month of April, 2011. The
plaintiff had raised the bills on defendant No.2 for the amount of
Rs.17,17,726/- for the work done from the month of April, 2011 to
November, 2011. As the said bill remained unpaid, the plaintiff wrote
a letter dated 02/12/2011 to defendant No.1 and requested to pay the
said bill amount. The plaintiff continued to do the work in view of the
request of defendant No.1.
6] For the work done for the period from April, 2011 to
August, 2012, the plaintiff again raised the bill for the amount of
Rs.29,61,112/- and requested by the letter dated 28/08/2012 to
defendant No.1 to pay the bill amount, but the same remained unpaid
by defendant No.2.
7] It is the further case of the plaintiff that he then sent the
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bill for the amount of Rs.18,70,106/- to the defendant No.1 by
deducting the amount received as advance. Defendant No.1 requested
the plaintiff to raise the invoice on defendant No.2 and get the same
certified from defendant No.2 by sending the e-mail dated
03/10/2012.
8] Despite continuous reminders and the follow-up, amount
was not received, and lastly there was a meeting between the plaintiff
and the representatives of defendants on 03/11/2012, and minutes of
meetings were reduced into writing. As per the request of defendant
No.1, the plaintiff raised the another invoice dated 03/11/2012 for the
amount of Rs.16,09,202/- and it was accepted and certified by
defendant No.2. Defendant No.2 handed over to the plaintiff the
cheque dated 02/11/2012 of Rs.2,00,000/- and it was agreed between
the parties that defendant No.2 would pay to the plaintiff amount of
Rs.1,00,000/- every month till entire amount of Rs.16,09,202/- has
been fully paid. It was further agreed between the parties that if
defendant No.2 fails to pay the amount due and payable to the
plaintiff, then the same shall be paid by defendant No.1, and
defendant No.1 would deduct the said amount from R.A. bills raised
on defendant No.1 by defendant No.2.
9] According to the plaintiff, the cheque issued by defendant
No.2 was dishonoured, and defendant No.2 didn’t make any payment
as agreed. The fact of dishonour of the said cheque was brought to the
notice of defendant No.1 by the letter dated 27/12/2012. The plaintiff
issued the various letters to the defendant No.1 to make the payment,
but failed and therefore, the plaintiff issued a legal notice dated
30/01/2013 to defendant No.1 calling upon to pay the due and
payable amount of Rs.16,09,202/- along with the interest at the rate of
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Rs.18% per annum from the month of April, 2011. After issuance of
the said legal notice, the plaintiff received from defendant No.2 the
amount of Rs.1,00,000/- on 22/01/2014 and again Rs.1,00,000/- on
12/04/2014 by RTGS. Thus, on the date of filing the suit, outstanding
amount due and payable was Rs.14,09,202/-.
10] Both the defendants have filed their reply to the summons
for judgment and sought the relief to defend the suit. According to
them, the plaintiff is not entitled to leave to sign the judgment. It is
apparent from the reply submitted by both the defendants that they
are shifting their liability on each others to pay the outstanding
amount due to the plaintiff. There appears no privity of the contract
between plaintiff and defendant No.2. Defendant No.2 undisputedly
was the sub-contractor of defendant No.1 and there was also contract
between defendant No.1 and defendant No.2 in respect of the work to
be done at the said power plant site. To have the convenience for
doing the work, it is apparent that the plaintiff was sending and
delivering the necessary equipments and materials at the said power
plant site, and defendant No.2 had to certified the R.A. bills and had to
pay the amount for the work done by the plaintiff. It appears that the
payment made by defendant No.2 to the plaintiff had to be deducted
from the R.A. bills submitted by defendant No.2 to defendant No.1.
So, ultimate liability to pay the amount towards the work done by
plaintiff was on defendant No.1. Only thing is that as defendant No.1
has not paid the amount for the work done by defendant No.2,
defendant No.2 could not pay the amount to the plaintiff. It was the
least concern of the plaintiff whether the said amount comes from
either defendant No.1 or defendant No.2. In the meeting dated
03/11/2012 held between plaintiff and representatives of the
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defendants, account of the plaintiff was settled and outstanding
amount was crystallized to Rs.16,09,202/-, and the minutes of the
meeting was signed by the plaintiff and representatives of the
defendants. Genuineness of the minutes of the meeting has not been
disputed by the defendants. In view of the recitals in the said minutes
of meeting dated 03/11/2012, there is no confusion that because of
failure of defendant No.2 to pay the outstanding amount payable to
the plaintiff, it is the responsibility of defendant No.1 to pay the said
outstanding amount to the plaintiff. It is already observed that due
and payable amount was already crystallized in the said minutes of
meeting, and on the said date, outstanding amount was of
Rs.16,09,202/-.
11] Merely because defendant No.2 had given the cheque of
Rs.2,00,000/-, it cannot be said that end liability was of the defendant
No.2 to pay the outstanding amount. It is not disputed by defendant
No.1 that it had received the legal notice dated 30/01/2013. There is
no dispute that after serving the said notice, amount of Rs.2,00,000/-
is received by the plaintiff from the defendant No.2 by RTGS. Again,
because of giving the said amount by defendant No.2 to the plaintiff, it
cannot be said that end liability to make the payment of the
outstanding amount was shifted to defendant No.2. There was no
written contract between the plaintiff and defendant No.2. Defendant
No.2 being the sub-contractor of defendant No.1, defendant No.2 had
to raise the RA bills on defendant No.1 in respect of the work done by
the plaintiff, and on receiving the amount from defendant No.1,
defendant No.2 had to pay the amount to the plaintiff in respect of the
work done by him. Therefore, I’m of the view that it is defendant No.1
who was liable and responsible to pay the outstanding amount in
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respect of the work done by the plaintiff at the said power plant site.
12] So, it is apparent that defendant No.1 has no substantial
defence, though it is the plausible but improbable, and therefore,
conditional leave can be granted to defendant No.1 by giving direction
to deposit the principal outstanding amount of Rs.14,09,970/-, and
unconditional leave can be granted to defendant No.2. In the result, I
proceed to pass the following order.
O R D E R
1] Summons for judgment is dismissed.
2] Unconditional leave to defend the suit is granted to defendant
No.2. He shall file written statement within a month from the
date of this order.
3] Leave to defend the suit is granted to defendant No.1 subject to
the condition that defendant No.1 company shall deposit in the
Court the amount of Rs.14,09,202/-.
4] Defendant No.1 to deposit the said amount in the Court within a
period of a month from the date of this order, and after
depositing the said amount, defendant No.1 shall file its written
statement within a month.
5] In view of granting the leave to defend the suit, summons for
judgment No.174/2019 stands disposed of as dismissed.
(K. P. Shrikhande)
Date: 27/09/2023 Judge, City Civil Court Gr. Mumbai.
Mumbai Court Room No.61
Dictated on: 27-09-2023
Corrected & signed on:29-09-2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
30-09-2023 at 3.00 p.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
27-09-2023
JUDGMENT/ORDER signed by P. O. on 29-09-2023
JUDGMENT/ORDER uploaded on 30-09-2023
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