Final Order 1

Order Details: Other
Pdf Text: Summons for Judgment No. 172/21 1 Order.
in Comm.Suit No. 700/21.
MHCC010095522021
Presented on : 20-11-2021
Registered on : 20-11-2021
Decided on : 06-04-2022
Duration : 0 years, 4 months, 16 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
SUMMONS FOR JUDGMENT NO. 172 OF 2021
IN
COMMERCIAL SUIT NO. 700 OF 2021
(OLD SUMMARY SUIT NO. 751 OF 2018)
M/s. Super Plast Company, )
Having its office at: H118 to 123, )
Hansa Industrial Estate, Saki Vihar, Road, )
Sakinaka, Andheri (East), Mumbai400072 )...Plaintiff
Versus
M/s. Gammon India Limited )
Having its office at: 'GammonHouse', )
Veer Savarkar Marg, Prabhadevi, Mumbai )...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 6th APRIL, 2022.
Shri Pradyumna Sharma, Advocate for the plaintiff.
Shri Ramesh Sahu, Advocate for the defendant.
ORDER
1. The plaintiff had filed the suit for recovery of
Rs.24,31,042/ alongwith further interest on principal amount of
-- 1 of 5 --
Summons for Judgment No. 172/21 2 Order.
in Comm.Suit No. 700/21.
Rs.20,68,260/ at the rate of 18% p.a. from the date of filing of the suit
till realization with costs.
2. The plaintiff moved this Summons for Judgment on
14/06/2019. Perused summons for judgment and affidavit in reply. I
have also gone through the suit proceeding. Heard learned counsel Shri
Pradyumna Sharma for the plaintiff and learned counsel Shri Ramesh
Sahu for the defendant.
3. Case of the plaintiff, in brief, is as under :
The plaintiff is a sole proprietary concern engaged in
the business of manufacturing and supply of quality plastic and PVC
products for various purposes including industrial and consumer uses.
The defendant is a company engaged in the business of civil engineering
and construction work. The plaintiff had business association with the
defendant since 2012 and he has been supplying goods and materials
from time to time. The plaintiff supplied goods for “Jaypee Nigrie
Super Power Thermal Power Project JNSTPP (2*660 MW) Dist.
Singruali, Sidhi MP 486669” project of the defendant as per purchase
order placed by it. Material supplied includes S.S.Sleeve with bolts,
splash fills, PP CLIP MOC – V BAR CLIP etc..
4. On 01/07/2017, Memorandum of Understanding was
entered into between the plaintiff and the defendant. The defendant
agreed to pay Rs.22,98,260/ in ten equal installments of Rs.2,29,826/.
The defendant made payment of Rs.2,30,000/ on 18/01/2018 as
reflected in bank statement of the plaintiff's account maintained with
Bank of India. The defendant was entitled to a period of seven days to
-- 2 of 5 --
Summons for Judgment No. 172/21 3 Order.
in Comm.Suit No. 700/21.
clear the default. As the defendant failed to pay nine installments as
per M.O.U., the plaintiff through its advocate sent notice to the
defendant on 16/04/2018 and it was duly served as per
acknowledgement filed with the plaint. Hence, the plaintiff filed the
suit for balance amount with interest at the rate of 18% p.a..
5. Learned counsel Pradyumna Sharma advanced arguments
in consonance with contents of the plaint. He further submitted that
the defendant does not have any defence. According to him,
registration of M.O.U. is not required as per Section 17 of the
Registration Act, 1908.
6. On the other hand, learned counsel Ramesh Sahu
submitted that M.O.U. is unregistered document and it does not create
any liability without work being rendered satisfactorily. There are
discrepancies in the documents. He further submitted that the
defendant company has transferred all rights to Gammon Engineers.
Payment of Rs.2,30,000/ is made by Gammon Engineers. The
defendant is not liable to pay the amount. He further submitted that
Gammon Engineers has paid further amount of Rs.6,28,448/ to the
plaintiff on 30/04/2019. Gammon Engineers is a necessary party. He
submitted that there are triable issue involved in the matter and leave
to defend may be given.
7. On perusal of the record and submissions of both sides, the
defendant has not disputed M.O.U. and it has just taken objection that
M.O.U. is not registered. Considering contents in M.O.U., it is not
required to be registered in view of Section 17 of the Registration Act,
-- 3 of 5 --
Summons for Judgment No. 172/21 4 Order.
in Comm.Suit No. 700/21.
1908. M.O.U. is just an undertaking on the part of the defendant to pay
the amount. The defendant has also deposited Rs.2,30,000/ in the
account of the plaintiff on 18/01/2018. While stating about role of
Gammon Engineers, learned counsel Shri Ramesh Sahu failed to bring
on record material to demonstrate that Gammon Engineers is a totally
different legal entity who has taken upon its shoulder responsibility to
pay the amounts mentioned in M.O.U. to the plaintiff. Furthermore,
this part of submission is not supported by contents in reply of the
defendant. In short, the defendant cannot be permitted to run away
from his responsibility to pay the amount as per M.O.U. to the plaintiff
by taking the stands or defences which are apparently unsustainable.
The defendant does not have substantial defence and no triable issue is
involved in the matter. Therefore, the plaintiff is entitled to get the suit
decreed. The plaintiff has succeeded in establishing his claim in the
plaint with the help of documents on record. Interest claimed by the
plaintiff appears to be exorbitant and it can be reduced to 12% p.a.
while granting further interest on the principal amount. The plaintiff is
also liable to receive the costs. Accordingly, the suit is liable to be
decreed partly. Hence, I pass the following order :
ORDER
1. Summons for Judgment No. 172/2021 is made absolute.
2. Commercial Suit No. 700/2021 is partly decreed.
3. The defendant is directed to pay the sum of Rs.24,31,042/
(Rupees Twentyfour Lakhs Thirtyone Thousand Fortytwo
Only) to the plaintiff together with interest @ 12% p.a. on
principal amount of Rs.20,68,260/ from the date of filing
of the suit till the date of realization within three months.
4. The defendant shall bear the costs of the suit.
-- 4 of 5 --
Summons for Judgment No. 172/21 5 Order.
in Comm.Suit No. 700/21.
5. Decree be drawn up accordingly.
6. Proceeding of Summons for Judgment No. 172/2021 is
closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.31)
Date : 06/04/2022. Mumbai.
1. Dictated online on : 06/04/2022.
2. Signed on : 06/04/2022.
3. 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
06/04/2022. 2.51 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 06/04/2022.
Judgment/Order signed by P.O. on 06/04/2022.
Judgment/Order uploaded on 06/04/2022.
-- 5 of 5 --