Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1898/18 in Suit No. 740/18. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1898 OF 2018
(CNR NO. MHCC010062692018)
IN
S. C. SUIT NO. 740 OF 2018
(CNR NO. MHCC010015702018)
M/s. Hafele India Pvt. Ltd. ...Plaintiff
Versus
M/s. Enzo International and Others ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 17th SEPTEMBER, 2019.
Mr. R.M.Pande, Advocate for Plaintiff.
Mr. Ajay L. Yadav, Advocate for Defendants.
ORDER
This is a notice of motion submitted by plaintiff for bank
guarantee to be sought from defendant for the sum of Rs.25,44,903/,
to issue direction to the defendants to disclose the properties; and for
temporary injunction for disposal of the properties of defendant.
2. Perused reply filed by defendant and rejoinder submitted
by plaintiff.
3. Ld. Advocate R.M.Pande for plaintiff requested to peruse
the quotation of the work dated 30/01/2017 and purchase order dated
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N/m No. 1898/18 in Suit No. 740/18. 2 Order.
29/03/2017. In view of the work order, duration of the work i.e. time
was essence of the contract. It is alleged that defendant has not
completed the work in given time nor the work of quality was carried
on by the defendant as agreed. Plaintiff has issued a notice to the
defendant on 07/09/2017, it remain unreplied. It is claimed for bank
guarantee and attachment of the property as per prayer clause (a) to
(d) of the present notice of motion.
4. Ld. Advocate Ajay Yadav for the defendants submits that
according to plaintiff some work remained was completed by the
plaintiff, therefore prayer clause (a) became infructuous. It is requested
to peruse the quotation and purchase order, wherein, the time was
required to begin from “approval of drawing”. The payment as agreed
came to be received by defendant is not disputed fact. In view of
revised plan dated 10/07/2017, plaintiff has called the defendant for
new marking on 12/07/2017. Defendant has completed 90% of the
work. The job of defendant for installation of ceiling and installation of
aluminium sheets would start after remaining formalities/construction
work/colouring to be get completed by the plaintiff. It is requested to
reject the motion.
5. It is to note that defendant has submitted written statement
and copy of the W.S. is supplied to the plaintiff.
6. Plaintiff is a private limited company having its registered
office at Kanjurmarg, Mumbai. Plaintiff is having units 3 to 6 at
Mahalaxmi, Mumbai. It is not disputed that quotation dated
30/01/2017 is accepted and payment came to be disbursed by the
plaintiff to the defendant.
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N/m No. 1898/18 in Suit No. 740/18. 3 Order.
7. According to plaintiff, defendant may ran away and dispose
of the property to defeat the fruits of decree, to be issued in future in
present case. According to plaintiff, the remaining work left
uncompleted by the defendant has got completed through appointment
of another contractor. It is to note at the outset that there is no such
affidavit nor documents are placed on record by the plaintiff to draw
the conclusion at this juncture that uncompleted work was completed
through another contractor.
8. Considering submission of plaintiff that remaining work
was completed, at this stage, prayer clause (a) for mandate to complete
the remaining work became infructuous.
9. In view of written statement filed by defendant and reply to
the motion, it is asserted that 90% of the work has got completed by the
defendant. It is admitted by defendant that amount as alleged came to
be received to the defendant on 31/03/2017. However, on perusal of
letter issued by the plaintiff dated 10/07/2017, defendant was called
for marking on 12/07/2017. Obviously, “approval of drawing” was not
finalized till 12/07/2017. Therefore, the time cannot be counted from
the date of payment i.e. 31/03/2017.
10. To grant the relief as claimed by the plaintiff in prayer
clause (b) to (d), it requires evidence at length. Naturally following
questions arose while adjudicating the fact in issue i.e.
A) How much work was completed by defendant ?
B) How much work was remain to complete and get
completed by the plaintiff by appointment of new
contractor ?
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N/m No. 1898/18 in Suit No. 740/18. 4 Order.
C) Whether contract was almost completed by applying
doctrine of cypress ?
D) Whether a vacant premises was given to the defendant for
completion of work ?
11. The aforesaid questions are required to reply after evidence
by both sides to be submitted. Therefore, it would be immature opinion
to draw the conclusion about damages and liability of rent as claimed
by plaintiff. There is no evidence at this juncture that defendant may
flee away and dispose of his all properties. The liability is not
crystalized nor any conclusion can be drawn at this stage.
12. Defendant has submitted written statement, suit may be
posted for framing issues and it can be expedited. In short, there is no
substance in motion. Hence the order :
ORDER
1. Notice of Motion No. 1898/2018 stands dismissed.
2. N/m No. 1898/18 is disposed off.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 17/09/2019. Mumbai.
1. Dictated on : 17/09/2019.
2. Transcribed on : 18/09/2019.
3. Signed on : 24/09/2019.
4. Delivered to Certified :
Copy Section on
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N/m No. 1898/18 in Suit No. 740/18. 5 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
30/09/2019. 4.37 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 17/09/2019.
Judgment/Order signed by P.O. on 24/09/2019.
Judgment/Order uploaded on 30/09/2019.
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