Final Order 1

Order Details: Other
Pdf Text: IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
SUMMONS FOR JUDGMENT NO. 156 OF 2018
IN
SUMMARY SUIT NO.980 OF 2015
Anil Kumar Jaiswal
Age 32 Years, adult, Indian Inhabitant, Occu.
Business, carrying business at Shop No. 1,
B.M.C., Lala Nigam Road, Colaba Market,
Colaba, Mumbai - 400 005.
... Plaintiff
V/s.
1. Cavim Hospitality Services Private Limited
A Company incorporated under the Indian
Companies Act, 1956, having its office at 78 A,
Nariman Bhavan, Nariman Point, Mumbai –
4000021.
2 Aashiyana Shroff,
Director of M/s. Cavim Hospitality Services
Private Limited, Full name and age not known,
adult, Indian Inhabitant, Occu. Business,
carrying Business at 78A, Nariman Bhavan,
Nariman Point, Mumbai – 4000021.
3. Deepak Shroff,
Director of M/s. Cavim Hospitality Services
Private Limited, Full name and age not known,
adult, Indian Inhabitant, Occu. Business,
carrying Business at 78A, Nariman Bhavan,
Nariman Point, Mumbai – 4000021.
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4. Pankaj Jagdish Sexena,
Director of M/s. Cavim Hospitality Services
Private Limited, Age not known, adult,
Indian Inhabitant, Occu. Business, carrying
Business at 78A, Nariman Bhavan, Nariman
Point, Mumbai – 4000021.
... Defendants
Appearance:-
Adv. Dwivedi for the Plaintiff.
Adv. Shobhana Waghmare for the Defendant nos.1 to 4.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 07.1.2022
ORDER
(Dictated and pronounced in Open Court.)
1. This summons for judgment is prayed by the plaintiff for the
amount of Rs.6,36,047.35ps/- with interest at the rate of 18 % p.a .
2. In the summons for judgment the plaintiff has averred that he is
the supplier/seller of the Green Vegetables and English Vegetables.
Defendant no.1 is a company and defendant nos.2 to 4 are its Directors.
As per the confirmed purchase orders of the defendants, the plaintiff
had supplied the goods i.e Green Vegetables and English Vegetables
between 1.5.2014 to 13.7.2014 to the defendants and same were
received by them. The Store Manager of defendant had duly
acknowledged the bills. However, the outstanding amount of the bills
worth Rs.5,50,008.16ps/- has been not paid by the defendants though
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legal notice of demand has been issued on dtd. 11.10.2014 . It is said
that the defendants made the payment of Rs.25,000/- only after receipt
of notice and amount of Rs.5,25,008.16ps/- remained to be paid. The
defendants failed to repay that amount with the interest at the rate of
18% though repeatedly requested by the plaintiff. Hence, they are
liable to pay the amount of Rs.6,36,047.35/- with further interest of
18% p.a to the plaintiff. Hence, summons for judgment may be made
absolute as the defence is not made out by the defendants and no
triable issues are pointed out by them. Further, it is stated that the
receipt of goods by the Store Manager is admitted by the defendants
and they have made part payment of Rs.25,000/- towards the
outstanding amount. Hence, leave to defend cannot be granted to the
defendants.
2. Perused the documents on record.
3. The Defendants appeared on Summons for Judgment and filed
reply/leave to defend within limitation on the following grounds:-
i) Suit is not maintainable as a summary suit as ingredients of
Order -XXXVII Rule -02 of the C.P.C are not made out. The present suit
has been filed on the basis of certain bills/invoices allegedly raised by
the plaintiff upon the defendants.
ii) There is no written concluded contract between the parties
under which the defendants had legally promised to pay to the plaintiff
for the goods allegedly supplied by him.
iii) The defendants have at no point of time, either orally or in
writing accepted the alleged liability towards the plaintiff. Therefore,
suit is not maintainable under Order XXXVII of CPC . It is stated that
only the amount of Rs.25,000/- was payable by the defendants to the
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plaintiff. Hence, said payment of Rs.25,000/- was made as full and final
payment of the dues. Therefore, suit is not maintainable. On the basis
of said contentions of the defendants it transpires that triable issues are
raised by the defendants. Hence, they are entitled to that unconditional
leave to defend. Further, it is stated that the Store Manager of
defendant’s company I.e defendant no.4 acted hand in gloves with the
plaintiff and thereby was successful in raising some false bills for which
the defendant's company never received any goods. The plaintiff have
raised invoices at excessive rates and supplied defective goods to the
defendants. In the said circumstances summons for judgment cannot be
allowed.
4. The advocate for the defendant while making said
submission has placed reliance on that authority in the case of Jyotsna
K.Valia and Ors. V/s.. Parekh and Co. and Ors. reported in 2007(3)Bom
CR772. It has been held in the authority as under:-
“1. The issues which arise for out consideration and referred to
us, arise under Order XXXVII, Rule 2(Summary Suit), in cases
where the suit is based: i) On a settled account duly confirmed by
the Defendants;
ii) On a settled account which is not confirmed by the
Defendants;
iii) On a acknowledgment of liability;
iv) On honoured cheque; and
v) On a mere writing or a receipt;......”
“28. The issues which remain to be answered would be (a) on
settled accounts which are confirmed by the Defendants (b) on
acknowledgment of liablity, on a mere writing or receipt. We have
classified these under two heads as acknowledgment of liabilities
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or mere writing or a receipt, many a time have to be read
together.
Before answering the issue we must note that there must be the
following requirements before a summary suit would lie:
(1) There must be a concluded contract;
(2) The contract must be in writing
(3) The contract must contain an express or implied
promise to pay.
There is no dispute in respect of the first two predicates. The only
issue is in respect of the third predicate. As we have noted earlier,
we are not concerned here with an implied contract, but an
implied term in a written contract. The Defendants would be
right to contend that an implied contract is not a written
contract. Is a summary suit maintainable on an implied term in a
written contract with an implied terms to pay. In our discussion
we have noted that the expression” implied” term is used in
different senses. In some contract it would not depend on actual
intention of the parties, but on a rule of law, such as the terms,
warranties or conditions, which if not expressly excluded the law
imports, as for instance under the Sale of Goods Act, Marine
Insurance Act, Master and Servant ad Landlord and Tenant. To
imply a term in the contract as implied term in our opinion the
test laid down by Kim Lewison in “Interpretation of Contract”
would be relevant. At the same time the court would have to note
that the general presumption is, however, against the implying of
terms into a written contract. It is, therefore, again not possible
to lay down a general Rule as to when an implied term in a
contract can be the subject matter of a summary suit. The issue
before us is limited to an implied promise to pay. That would
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necessarily depend on the facts of each case. The two issues as
formulated may now be answered”.
5. I have gone through the contents of the authority cited
Supra. Undoubtedly, the principles are elaborated in the authority upon
which the summary suit can be made maintainable. The settled account,
if not confirmed by the defendant and if the liability is not
acknowledged by the defendants and if there is no concluded contract
in writing , the summons for judgment cannot be issued under Order
XXXVII, Rule 02 of the CPC. However, we have to look into the details of
the present suit and have to gather the conclusion whether there was
concluded contract in between the parties or not. I have perused the
written submissions made by the defendants. It reveals that certain
triable issues are raised by the defendants. However, there is admission
that the Stock Manager of their company have accepted the bills and
invoices raised by the plaintiff. It means that there were certain
commercial transactions in between the parties and therefore it cannot
be said that the plaintiffs do not have any case on merit.
6. Further more, the defendant has pointed out that there is no
written contract between the parties. However, according to the
plaintiff, the invoices raised by him bears the terms and conditions upon
which the parties agreed for sale and purchase of goods. The terms and
conditions includes the clause regarding chargeable interest also.
Therefore, it cannot be said that there is no written concluded contract
in between the parties. These submissions made by the parties again
made me to think that there are triable issues which cannot be decided
in the summary way under the summary suit. To my mind if the
defendant raises defence which is plausible but may be improbable, the
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court may impose conditions as to time or mode of trial as well as
payment into court or furnishing security.
7. I have perused the contents of the Plaint, written
submissions made by the plaintiff, leave to defend, grounds made
therein and the ratio of the authority cited by the advocate for
defendant. It appears that the defendant has raised different triable
issues. It is disputed whether the transaction took place or not and
whether there was concluded written contract in between the parties.
In such circumstances it is to be determined as to which transactions
took place in between the parties and what was the nature of the same.
8. 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. The issues so raised can not be brushed aside on the
count of procedure of summary suit.
9. 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, he will have to pay the amount claimed by the plaintiff. The
amount comes around Rs.6,36,047.35ps/- with interest at the rate of
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18% p.a. The suit is filed under Order XXXVII of C.P.C for getting speedy
recovery. This court can grant leave to the defendant to defend the suit
subject to payment of certain amount out of the principal amount as
security to justify the ends of justice and to keep balance between
legitimate claim and defence. The circumstances are such that
conditional leave to defend can be granted to the defendant subject to
payment of Rs.2,00,000/- as security .
10. In consequence, I hold that the Summons for Judgment is liable
to be dismissed. Hence, the following order is passed.
ORDER
1. Summons for Judgment No.156 of 2018 is dismissed.
2. Leave to defend is granted to defendant nos.1 to 3 on
depositing the amount of Rs.2,00,000/- in court in
Summary Suit No. 980/2015 within 4 weeks of passing of
this order and also directed to file written statement on
record.
3. Costs in cause.
4. Summons for Judgment No.156/2018 is disposed off
accordingly.
Date: 07.01.2022.
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Dictated on : 07.01.2022
Typed on : 07.01.2022
Signed on : 12.01.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
12.01.2022 04.00 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
07.01.2022.
JUDGMENT/ORDER signed by
P.O.on
12.01.2022.
JUDGMENT/ORDER uploaded on 12.01.2022.
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