Final Order 1

Order Details: Other
Pdf Text: SJ No.15818 in Sum. Suit No.1484 of 2017
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.158 OF 2018
IN
SUMMARY SUIT NO. 1484 OF 2017
CNR NO. : MHCC010064872018
Hansa Research Group Pvt. Ltd. …. Plaintiff
Versus
National Horticulture Board & Ors. ….Defendants
Appearance:
Mrs. Kenny Thakkar, Advocate for plaintiff.
Ms. Ruchi Singh, Advocate for the defendants.
CORUM : SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 06/12 /2019
ORAL ORDER
1. The summons for judgment is filed by plaintiff to
decree the suit on the ground that the claim is admitted. The
summons for judgment is supported by affidavit of Subrata Das,
the representative of the plaintiff. The plaintiff on oath has
reiterated the contents of the plaint. It is the case of the plaintiff
that the defendant no. 1 published a Tender Notice dated
20.10.2002 to conduct survey on “All India Cold Storage Capacity
and Technology Survey for Cold Chian”. The plaintiff being a
research company submitted its Expression of Interest (EOI) as a
bidder to conduct the said survey. The defendant no. 1 awarded
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the plaintiff to conduct the said survey vide letter dated
24.12.2012 for a total consideration of Rs. 1,80,10,000/ (Rupees
One Crore Eighty Lakh and Ten Thousand Only) plus service tax as
per details of release of payment. 25% was to be paid at the stage
of award of the work, 50% at the time of submission of Daft report
and 25% at the time of final report and its acceptance by the State
Government.
2. The plaintiff issued first invoice bearing no.
MU/1213/1011 dated 27.12.2012 for a sum of Rs. 50,59,009/.
The plaintiff at the time of submitted its draft report and issued its
second invoice for Rs. 1,01,18,018/ . The defendant deducted an
amount of Rs. 35,35,606/ arbitrarily. The amount was deducted
on the ground that the report was not completed on the aspect of
non inclusion of refer trucks in the said survey. The plaintiff stated
that the contents of Tender, which disclosed the stages and the
nature of work to be completed and submitted to the defendant
does not disclose that the plaintiff has to carry out the survey of
the refer trucks. Therefore, the contention of the defendant is only
to avoid the payment of invoices. The claim is admitted by the
defendant, hence prayed to make absolute this summons for
judgment.
3. The defendant filed application under Order XXXVII
Rule 3(5) of CPC to seek unconditional leave to defend. The
defendants stated that the suit filed under Order XXXVII is not
tenable. The defendant no. 1 i.e. National Horticulture Board was
set up by Government of India. It is an autonomous body with a
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mandate to promote integrated development of Horticulture. The
Court has no territorial jurisdiction to entertain the suit. As per the
scheme guidelines of NHB , which is applicable in respect of all the
scheme of NHB, is categorically mentioned that any dispute will be
subject to jurisdiction of Gurgaon Court only. The plaintiff has
neglected the terms and conditions of TOR superfluously and thus
did not cover the data on refer vans/ trucks as part of temperature
sensitive cargo in the ambit of study as per TORI. Therefore, the
amount of Rs. 36,00,000/ was deducted considering the amount
involved for the said survey. Hence there is triable issue and
prayed to grant unconditional leave.
4. Heard advocate Mrs. Kenny Thakkar for the plaintiff
and advocate Ms. Ruchi Singh for the defendant. Perused contents
of summons for judgment and leave to defend the application
supported by affidavit of both parties. I have also gone through the
contents of the plaint and the documents relied by the plaintiff in
support of the plaint.
5. There is no dispute between the parties that the
plaintiff was appointed to conduct survey on “All India Cold
Storage Capacity and Technology Survey for Cold Chian”. The
plaintiff has relied on Tender Notice published in the website
(Exh.'B' page no. 41 to 62). The terms and conditions and how the
survey is to be conducted is mentioned in detail. At page no. 50,
the heading of “Usable Capacity” (e) part states about others that,
“the survey should indicate the other facility provisions
including packing, precooling and transport shelters associat ed
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with each cold store”. At page 53 with heading other parameters
for All India Cold Storage Capacity and Technology Survey Clause
'Xii' states that, “if any question, difference or dispute shall arise,
between the agency and the NHB relating to this agreement or
any matter arising there of or incidental thereto, the matter
shall be referred to the sole authority i.e. Managing Director
(NHB) in the Department of Agricultural and Cooperation, and
the award given by him/ her shall be final and binding on both
parties”.
6. The defendant though raised issue of jurisdiction and
the maintainability of the suit on the ground that the plaintiff did
not complete the survey and has left out with survey of refer truck.
The contention of the plaintiff is that the said condition did not
exist. Even in the meeting held between the parties, there was no
discussion on that part and her final survey report was accepted
and published on the Internet. However, clause stated in the
Tender Notice prima facie shows that the survey should indicate
the details of cooling infrastructure installed at each cold storage
including insulation, docks and doors. Therefore there is a triable
issue in respect of deduction of the amount from the invoices for
not completing the survey and the jurisdiction of the court.
7. The advocate Mrs. Keeny Thakkar for the plaintiff has relied
on authority reported in :
i) Bayerische HepoUnd Vereinsbank Aktiengesellshaft
(HRB 42 14B) Munich, Federal Republic of Germany
Vs.
State Bank of Bikaner and Jaipur and Others
(MANU/UP/1883/1999)
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that unless leave to defendant is granted the defendant is not
entitled to raise any defence. The grounds taken may be good
ground to obtain leave. But the same cannot form a defence in
order to enable the defendant without the leave being granted by
the Court to defend. No defence can at all be raised unless leave to
defend is obtained.
ii) Saleem Bhai & Ors.
Vs.
State of Maharashtra & Ors.
(AIR 2003 SC 759)
that the averments in the plaint are germane; the pleas taken by
the defendant in the written statement would be wholly
irrelevant at that stage, therefore, a direction to file the written
statement without deciding the application under Order 7 Rule
11 of CPC cannot but be procedural irregularity touching the
exercise of jurisdiction by the trial court.
iii) Southern Sales and Services & Ors.
Vs.
Sauermilch Design & Handles GMBH
[2009(1)UC 37]
that the leave to defend a suit shall not be granted unless the
amount as admitted to be due by the defendant is deposited in
the Court. I have gone through the above authorities relied by
advocate for plaintiff. The defendant has sought leave to
defend the suit. The defendant has to state his defence while
seeking leave to defendant. The leave to defend may be
conditional or unconditional depend upon the facts.
8. In the present facts of the case, there is triable issue in
respect of jurisdiction and the amount deducted by the defendant
for not reporting the survey of transport which is included in the
tender notice. Therefore, the defendant is entitled for
unconditional leave to defend. Hence, pass the following order :
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ORDER
1. The defendant is granted unconditional leave to
defend the suit and are directed to file written
statement within one month from the date of the
order failing which summons for judgment will be
made absolute.
2. Accordingly, summons for judgment is disposed
of.
(Smt. S.S. Nagur)
Dated : 06.12.2019 Adhoc Assistant Sessions Judge
Gr. Mumbai.
Dictated on : 06/12/2019.
Transcribed on : 09/12/2019.
Sign on : 10/12/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
11/12/2019 11.35 a.m. Prachi Y. Potdar (H.G.)
Name of the Judge HHJ Smt. S.S. Nagur
(CR No.13)
Date of Pronouncement of
Judgment/Order.
06/12/2019
Judgment/order signed by P.O on 10/12/2019
Judgment/order uploaded on 11/12/2019
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