Order 1

Order Details: Order below exhibit
Pdf Text: Comm.Suit No. 41/19. 1 Order below Exh.4.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
ORDER BELOW EXHIBIT 4
(APPLICATION FOR SUMMARY JUDGMENT NO. 1 OF 2019)
IN
COMMERCIAL SUIT NO. 41 OF 2019
Infobip India Private Limited )...Plaintiff
Versus
Mr. Bhagyawan Manjarekar )...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 11th AUGUST, 2021.
Mr. Nihal Shaikh, Advocate for the plaintiff.
None for the defendant.
ORDER
1. This is an application for summary judgment under order
XIIIA Rule 1 of the CPC filed by the plaintiff. Perused application,
affidavit in reply (Exh.5), the plaint, documents on record and citation
relied by the plaintiff. Heard learned counsel Shri Nihal Shaikh for the
plaintiff.
2. Learned counsel Nihal Shaikh for the plaintiff submitted
that the plaintiff is a company engaged in the business of providing
international messaging services and the defendant is a sole proprietor
of 'Websoft Technologies' engaged in website designing, development
and digital agency. They had entered into agreement dated
07/03/2015 and Addendum No. 1 dated 19/06/2015. Accordingly,
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Comm.Suit No. 41/19. 2 Order below Exh.4.
prepaid and postpaid services were provided to the defendant by the
plaintiff. Demand of payment was made by issuing invoices. Learned
counsel Shri Nihal Shaikh relied upon emails communication between
the parties and submitted that the defendant has admitted amounts to
be paid to the plaintiff in emails. By placing reliance upon admissions
in email communication, he pressed for summary judgment in the
matter.
3. On perusal of this application and affidavit in reply (Exh.5),
it appears that the defendant raised issue of variation in Addendum
No.1 dated 19/06/2015. Details of such variation are pleaded in para 3
of Exh.5. The defendant has also disputed email communication
between the parties by stating that the defendants are not aware of any
such emails in para 13 of Exh.5. The defendant specifically denied
invoices listed in para 20 of Exh.4. He has also denied liability to pay
the amount claimed by the plaintiff. In short, material aspects of the
plaintiff's case are disputed by the defendant. There is lack of
concurrence between the parties with regard to vital aspects involved in
the matter.
4. The defendant is disputing terms and conditions of the
agreement between the parties and he is denying the liability.
Considering controversies involved in the matter, this is not a fit case to
pronounce summary judgment by resorting to provisions under Order
XIIIA of the CPC. Grounds for summary judgment under Order XIIIA
Rule 3 of the CPC are not made out from the record. Learned counsel
Shri Nihal Shaikh for the plaintiff has relied upon observations of
Hon'ble Delhi High Court in the case of SuKam Power Systems Ltd.
V/s. Kunwer Sachdev and Another (2019 SCC OnLine Del 10764)
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Comm.Suit No. 41/19. 3 Order below Exh.4.
and submitted that there are sufficient admissions on record to
pronounce summary judgment. I have gone through the said citation.
In the said citation, Hon'ble Delhi High Court had considered
admissions of the defendant in the documents as well as pleadings.
Position in the case in hand is quite contrary as discussed above.
Therefore, the said citation is not applicable to the case in hand. Hence,
I pass the following order :
ORDER
Application for Summary Judgment No. 1/2019 (Exh.4) is
rejected.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
Date : 11/08/2021. Mumbai.
1. Dictated on : 10/08/2021.
2. Transcribed on : 10/08/2021.
3. Signed on : 11/08/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
11/08/2021. 3.45 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 11/08/2021.
Judgment/Order signed by P.O. on 11/08/2021.
Judgment/Order uploaded on 11/08/2021.
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