Final Order 1

Order Details: Copy of Judgment
Pdf Text: SJ 188/2019 SUM.SUIT 1271/2016 1
IN THE CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT 188 OF 2019
IN
SUMMARY SUIT NO. 1271 of 2016
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
(CNR.NO.MHCC01-006226-2019)
M/s.Sanjay Maintenance Services Pvt.Ltd.
The registered company under the Indian
Company Act, 1956, having its registered
office at SMS House, 41/131, Sector 30,
Vashi, Near Sanpada Railway Station,
next Pudhari building, Navi Mumbai,
Through their Director/Authorized
Representative Akshay B Gadre ...Plaintiff
Versus
Mr.Jaywant Jagannath Bramhmane
Age: Adult, Occu: Business,
Residing at 2/11, Majide
Shram Safalya CHS Ltd. Plot No.66,
Shivai Nagar, Opp.Laxmi Narayan
Complex, Pokhran Road No.1,
Thane(W)-400606. ...Defendant
Appearances:-
Advocate Mr.Sandeep Rane for the Plaintiff.
Advocate Mr.Shah for the Defendant.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 3rd February 2020
J U D G M E N T
1. This is Summons for Judgment for recovery of Rs.5,00,000/-
(Rupees Five Lakhs Only) with Pendente Lite and future interest at the
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rate of 18% p.a..
2. According to the plaintiff, the plaintiff is a registered company
carrying on the business of housekeeping and provided services to
reputed companies as well as government organizations and their
departments. The defendant represented to the plaintiff that he will
professionally work for the plaintiff to expand the plaintiff's business.
The defendant demanded Rs.5,00,000/ -in advance as his professional
fees. Relying on the defendant, the plaintiff paid him Rs.5,00,000/- vide
cheque dtd. 04.07.2014 bearing No.190737 as advance as his
professional fees. However, after receiving said amount the defendant
did not do any work for the plaintiff. The defendant did not take any
steps to expand the plaintiff's business. Therefore, the plaintiff asked the
defendant to refund the amount of Rs.5,00,000/-. After repeated follow
up from the plaintiff, the defendant issued cheque dtd.22.02.2016
bearing No.499467 of Rs.5,00,000/- drawn on ICICI Bank Mahim
Branch Mumbai, in the name of the plaintiff. When the plaintiff
deposited the cheque for encashment it was dishonored for the reason
'Funds Insufficient'. When the plaintiff informed about it, the defendant
again requested to wait for some time and that he will make
arrangement to honour the cheque. Waiting for one and half month,
when the plaintiff deposited the cheque it was dishonored on
07.05.2016. The plaintiff issued legal notice demanding the said
amount. However, the defendant failed to pay the amount. Calculating
the interest at the rate of 18% p.a., the total due and payable amount
by the defendant is Rs.5,52,500/-. Therefore, the plaintiff claimed
recovery of the said amount with the interest.
3. The defendant filed reply contesting the Summons for Judgment.
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The defendant contended that the summons for Judgment has not been
taken out within 6 months from the filing of the plaint. Therefore, the
defendant is entitled to unconditional leave to defend. The plaintiff has
claimed interest on interest in the suit though there was no agreement.
The suit is not within the jurisdiction of this court. The defendant
admitted that amount of Rs.5,00,000/- was paid by cheque by the
plaintiff as advance to him. However according to him, it was agreed
that he will be entitled to 25% profit in the business which he could
generate for the plaintiff and Rs.1000/- p.m towards the conveyance
and or entertainment expenses. It was agreed that the plaintiff will pay
a sum of Rs.10,000/- per month as supervision charges and guidance
fees for supervising and guiding the plaintiff. The same supervision
charges and conveyance charges and 25% profit payable to him was to
be adjusted towards the advance of Rs.5,00,000/- paid to him. It was
agreed that the defendant should deposit with the plaintiff a blank
signed cheque as security. Accordingly the defendant issued blank
signed cheque which is misused by the plaintiff. The defendant gave
services for nearly one and half year and requested the plaintiff to settle
his account. However, the plaintiff avoided to it. On accounts being
taken the plaintiff will be liable to pay to the defendant. He did not
reply to the notice of the plaintiff as the plaintiff told him that he should
not worry and the notice is given to show his creditors to whom the
plaintiff owes the money. Therefore, relying on the words of the plaintiff
the defendant did not reply to the notice. With all these contentions the
defendant requested to reject the summons for judgment and grant
unconditional leave to defend.
4. Considering material on record and submissions made on behalf
of the parties points arise for determination alongwith my findings
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thereon are as under:-
POINTS FINDINGS
1. Whether the plaintiff is entitled
to Summons for Judgment?
In the Affirmative
2. Whether the defendant is
entitled to Leave to defend?
If yes, whether conditional/
unconditional?
In the Negative
3. What order? As per final order.
REASONS
AS TO POINTS NO.1 to 3 :-
5. The Ld Advocate on behalf of the plaintiff argued that the copy of
statement of account shows that the plaintiff paid the amount of
Rs.5,00,000/- to the defendant. The defendant issued the cheque in
consideration of same amount. The copy of cheque is filed on record.
Thus, liability of the defendant is proved. Therefore, he requested to
allow the summons for judgment.
6. On the other hand, Ld advocate on behalf of the defendant
argued that the suit has been filed through power of attorney. However,
there is no power conferred on the said person namely Prakash to
institute the suit as no letter of authority of board of director is
produced. The plaintiff's address is shown to be Vashi Sanpada and the
defendant's address is Thane. The cheque was payable at Vashi branch
ICICI bank. The cheque presented by the plaintiff at Vashi branch. Thus,
cause of action did not take place within the jurisdiction of this court,
neither party is resident within the jurisdiction of this court. Therefore,
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whether this court has jurisdiction is a triable issue. He argued that the
plaintiff has claimed interest on interest vide prayer clause (b). Same is
not contemplated by Order 37 of CPC. Further, as per Rule 119 (4) of
Bombay city civil court rules the plaintiff ought to have applied within 6
months for the summons for judgment. But the plaintiff failed to apply
so. Therefore, summons for judgment has to be rejected. On these
contentions he requested to grant unconditional leave to defend.
7. So far as the contention regarding Rule 119 (4) of Bombay City
Civil Court is concerned, said rule states,
'When no decree applied for within six months- If the plaintiff
does not apply for a decree within Six months after the filing of the
plaint, the suit shall be set down in the daily cause board for dismissal
before the sitting judge in chambers, one week before the day fixed for
such dismissal. Upon the day fixed for such dismissal, the suit shall be
called on before the siting Judge in Chambers and shall be dismissed if
the plaintiff fails to appear, or appearing fails to satisfy the Judge that
he has sufficient cause for not having proceeded with this suit.'
8. Thus, as per said rule if the summons for judgment is not applied
within 6 months after the plaint, the suit has to be set down for
dismissal. Once the suit is set down for dismissal on the fixed date if the
plaintiff fails to appear or fails to satisfy the court that he has sufficient
cause for not having proceeded with the suit, then the suit shall be
dismissed. However, in the case in hand the suit was never set for
dismissal. On the other hand it appears that the court from time to time
adjourned the matter for taking steps. It is implicit that the court
exercised discretion to not to set the suit for dismissal. Further, once the
summons for judgment is filed on record when the suit is alive and the
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court accepted the summons for judgment on record, now it will be
improper to go back to the stage of Rule 119 (4) of City Civil Court
Rules.
9. So far as jurisdiction of the court is concerned, true that the
plaintiff at present shown its registered address as of Vashi Navi
Mumbai. The defendant is resident of Thane. There is no dispute that
Vashi and Thane area are not within the territorial jurisdiction of this
court. However, while considering jurisdiction it has also to be seen as
to whether cause of action or part of it accrued within the jurisdiction of
this court. Although the defendant disputed that the agreement took
place at Mumbai, although it is denied that the plaintiff's previous office
was in Parel area at Mumbai; still indisputably the cheque issued by the
defendant bearing No.499467, in favour of the plaintiff, drawn on ICICI
Bank of Mahim branch, Mumbai. Though the cheque was presented for
encashment by the plaintiff at Vashi branch but being the cheque drawn
on Mahim branch Mumbai which is within the jurisdiction of this court,
it has to be held that part of the cause of action took place within the
jurisdiction of this court. Therefore, from the apparent and undisputed
facts on record, this court has jurisdiction to try and entertain the suit.
10. Further regarding delegation of power to institute the suit, the
plaintiff has produced certified true copy of the resolution passed at the
meeting of board of directors held on 06.02.2016. The same reveals
that Prakash Bhandari has been authorized to appear and act on behalf
of and represent the company in all matters before debt tribunal, state
government, public bodies and to sign and execute all applications,
written and papers required. Thus, there has been proper authorization
to the authorized representative to file the suit.
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11. It has to be noted that the defendant has admitted that the
plaintiff paid him advance amount of Rs.5,00,000/-. The defendant
came with the contention that 1. As per agreement he was entitled to
25% profit in the new business which he could generate for the plaintiff
and Rs.1000/- per month towards the conveyance and entertainment
expenses, 2. It was also agreed that the plaintiff will pay Rs.10,000/-
p.m. as supervision and guiding charges for supervising and guiding the
plaintiff. According to the defendant, the amount payable to him by the
plaintiff was to be adjusted towards the advance paid to him. Though
he given the services for nearly 1 and ½ year, the plaintiff on one or
other pretext did not settle the accounts. If the accounts are taken the
plaintiff will be liable to pay to him.
12. Although the defendant came with these contentions there has
been nothing on the record to show that the defendant rendered any
services to the plaintiff. Even the reply of the defendant does not specify
on what dates what services were rendered by the defendant. Not a
single instance regarding such service has been quoted. The plaintiff has
come with specific contention that the defendant did not at all taken
any steps, the defendant did not at all do any work towards expansion
of the plaintiff's business. In this background, had the defendant
rendered services for nearly one and half year, he could have stated the
specific instances of rendering of such services. The plaintiff vide pre
suit notice dtd.20.06.2016 had also called upon the defendant to pay
the amount of Rs.5,00,000/-. The defendant did not reply the same
notice. The defendant did not raise the contentions regarding his
entitlement to 25% profit, Rs.10000/- as supervision charges, blank
signed cheque as security by giving reply to the plaintiff's notice. If these
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contentions were true the defendant would have definitely in natural
course of human conduct replied the notice raising these contentions.
Of course, the defendant came with an explanation for non reply to the
notice. According to the defendant the plaintiff told him that the notice
is given to show the creditors to whom the plaintiff owes the money, the
plaintiff told him not to reply and therefore, relying on the plaintiff he
did not reply to the notice. However, this court must note that the
notice was demanding amount from the defendant. The amount was
due and payable by the defendant to the plaintiff. It was not payable by
the plaintiff to the defendant. Therefore, it is incorrect to say that to
show that the plaintiff owed the money the notice was sent. Further, if
the plaintiff was not settling the accounts of the defendant, if the
plaintiff had deposited blank signed cheque by misusing the same as
contended by the defendant; it is not believable that the defendant
would still rely on the plaintiff for not replying the notice. Therefore,
the explanation as furnished by the defendant for not replying the
notice is false. It is clear that the defence as raised on behalf of the
defendant is merely for the sake of contention and without any
substance. The defence as raised on behalf of the defendant is vague
and not at all reliable.
13. One of the contentions of the defendant is that his name is
'Jaywant Jagannath Bramhane', whereas in the plaint his name is
mentioned as 'Jaywant Jagannath Bramhamane'. Therefore, he is
entitled to unconditional leave to defend.
14. True that name of the defendant in the plaint has been recorded
as 'Jaywant Jagannath Bramhamane'. However, that seems to be merely
typographical mistake which can be corrected at any stage. There is no
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dispute of identity of the defendant. The defendant does not contend
that he is not the person to whom the plaintiff had paid advance
amount of Rs.5,00,000/- by cheque dtd.04.07.2014. Resultantly,
typographical mistake cannot be a ground to grant unconditional leave
to defend.
15. Regarding the interest the defendant contended that vide prayer
clause (b) the plaintiff has claimed interest on interest i.e. compound
interest in absence of any agreement as to compound interest. The same
contention of the defendant is acceptable to this court that vide prayer
clause b the plaintiff has claimed pendente lite and future interest at the
rate of 18% p.a. on the total amount of Rs.5,52,500/- which also
included past interest amount of Rs.52,500/- in addition to the principal
amount of Rs.5,00,000/-. There has been no agreement between the
parties regarding compound interest and no compound interest can be
granted in absence of specific agreement. Once this contention of the
defendant is accepted by the court with absolute observation that the
plaintiff cannot at all claim compound interest, there is no question to
proceed with the trial on the issue as whether the plaintiff is entitled to
compound interest. This court is not at all granting compound interest.
16. As already noted, it is admitted that the plaintiff had paid
Rs.5,00,000/- as advance to the defendant. The defence of the
defendant is vague, without any substance. It must be termed as moon
shine. Resultantly, the plaintiff is entitled to summons for judgment. The
defendant is not entitled to leave to defend. Hence, point No.1 is
answered in the affirmative whereas point No.2 is answer in the
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Negative. In answer to point No.3 order as follows is passed:
ORDER
1. The Summons for Judgment 188/2019 is Allowed.
2. The defendant shall pay to the plaintiff amount of Rs.5,52,000/-
(Rupees Five Lakhs Fifty Two Thousand only) with interest at the rate
of 9% p.a., on the principal amount of Rs.5,00,000/- from the date of
suit till realization of amount.
3. Decree be drawn up accordingly.
4. The summary suit No.1271 of 2016 and Summons for Judgment
188 of 2019 are disposed accordingly.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date: 03/02/2020 City Civil Court, Gr. Mumbai
Dictated on : 03/02/2020
Signed on : 05/02/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
20/02/2020 at 11.10p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 03/02/2020
Judgment/Order signed by P.O. on 05/02/2020
Judgment/Order uploaded on 20/02/2020
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