Final Order 2

Order Details: Copy of Judgment
Pdf Text: 1 SJ 203-19 in Comm. SU 673-21
MHCC010071342019 Presented on : 12/07/2019
Registered on : 12/07/2019
Decided on : 17/10/2023
Duration : 04Y/03M/05D
IN THE CITY CIVIL COURT AT MUMBAI.
(COURT ROOM No.32)
SUMMONS FOR JUDGMENT NO.203 OF 2019
IN
COMMERCIAL SUIT No.673 OF 2021
M/s. Spartan Engineering Industries Pvt.
Ltd. A Private Limited company
registered under Indian Companies Act,
1956 with amendment Indian Companies
Act, 2013 carrying business at Spartan
House Level 1-111, New Tejpal Industrial
Estate, Andheri Kurla Road, Sakinaka,
Andheri (East), Mumbai.
…PLAINTIFF
VERSUS
Milan Tanna
Proprietor of M/s. Natural Arts having
address at Tata Amnanora, Bhiwandi
Bypass, NH3, Thane and having another
address at 428, Milan Industrial Estate,
4th Floor, T. J. Road, Near Abhudaya
Nagar, Cotton Green (West), Mumbai -
400033.
…DEFENDANT
Shri. Jagdish Nagar, learned advocate for plaintiff.
Smt. Swarna Munshi, learned advocate for defendant.
CORAM : SHRI. VISHAL SADASHIVRAO GAIKE, DISTRICT JUDGE
(COURT ROOM NO.32)
J U D G M E N T
(Delivered on 17/10/2023)
1. Plaintiff has taken out this Summons for Judgment under
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2 SJ 203-19 in Comm. SU 673-21
Order XXXVII of CPC for claim of Rs.4,81,871/- together with interest
@ 24% p.a. on the principal sum of Rs.3,69,409/- till the date of filing
of the suit.
2. It is the case of plaintiff that, an amount of Rs.4,81,871/-
as per the particulars of claim annexed with the plaint, is due and
payable by the defendant to the plaintiff. The defendant had no defence
to the suit and has caused his appearance with the sole intention to
passing of the decree. Therefore, the Summons for Judgment against
the defendant may be made absolute with costs.
3. The defendant has filed his affidavit in reply and has
denied the claim of plaintiff and the contentions in the present
Summons for Judgment. It is stated that a Summary Suit was filed by
the plaintiff on 06/04/2018 and the defendant received Writ of
Summons on 13/08/2018. Thereafter, he filed his appearance and from
30/10/2018 till 10/03/2022 the matter was pending for steps by the
plaintiff. Thereafter, plaintiff took out chamber summons for
amendment which was allowed on 07/06/2022 but till 20/07/2022 the
amendment was not carried out on behalf of the plaintiff therefore,
defendant filed application for dismissal of the Summary Suit.
Thereafter, on 12/09/2022 the copy of Summons for Judgment was
served on the learned advocate of the defendant.
4. That, there are serious disputes of the defendant with the
plaintiff regarding the bills which are raised by it. No cause of action
has arisen in favour of the plaintiff. No amount is due and payable by
him to the plaintiff. The plaintiff has mentioned an amount of
Rs.15,12,710/- on page No.2 of the Summons for Judgment as a due
and payable to the plaintiff, but in the affidavit in support of the
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3 SJ 203-19 in Comm. SU 673-21
Summons for Judgment, an amount of Rs.4,81,871/- is stated to be due
from the plaintiff.
5. That, though the Summons for Judgment was filed in the
month of April 2019 but its copy was served after more than three years
i.e. on 12/09/2022. On this court alone the SJ needs to be rejected.
Lastly, the defendants has prayed unconditional leave to defend the suit.
6. On the point of summary judgment and Summons for
judgment the following case laws are helpful to decide the present
Summons for Judgment .
i) Mour Marbles Industries Private Limited Vs. Motilal Laxmichand
Salecha and Ors, Commercial Appeal No.248 of 2018 in Summon for
Judgment No.64 of 2016, dtd.11/06/2018, Bom. H.C.,
“The Hon’ble Supreme Court has laid down the following tests,
17.4 if defendant raises a defence it is plausible but improbable,
the trial judge may imposed conditions as to time or mode of
trial, as well as payment into court, or furnishing security. As such
a defence does not raise triable issues, conditions as to deposit or
security or both can extend to the entire principal sum together
with such interest as the court feels the justice of the case
requires.
17.5:- If the defendant has no substantial defence and/or raises
no genuine triable issues, and the court finds such defence to be
frivolous or vexatious, then leave to defend the suit shall be
refused, and the plaintiff is entitled to judgment forthwith.
17.6:- If any part of the amount claimed by the plaintiff is
admitted by the defendant to be due from him, leave to defend
the suit,(even if triable issues or a substantial defence is raised),
shall not be granted unless the amount so admitted to be due is
deposited by the defendant in court.”
ii) B.L. Kashyap and Sons Ltd. Vs. M/s. JMS Steels and Power
Corporation and Anr. : (2022) 3 SCC 294.
It would not be a correct approach to proceed as if denying leave
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4 SJ 203-19 in Comm. SU 673-21
is the rule or that leave to defend is to be granted only in
exceptional cases or only in cases where defence would appear to
be meritorious one. On the issue of raising of triable issues, if
defendant indicates that he has a fair or reasonable defence, he is
ordinarily entitled to unconditional leave to defend unless there
be any strong reason to deny leave.
Even if there remains a reasonable doubt about probability of
defence, sterner or higher conditions could be imposed while
granting leave to defend but, denying leave would be ordinarily
countenanced only in such cases where defendant fails to show
any genuine triable issue and court finds defence(s) to be
frivolous or vexatious.
7. That, the Summons for Judgment application taken out by
the plaintiff is bereft of material particulars. On the contrary, the
amount to be due and payable by the defendant is stated to be
Rs.15,12,710/- on the second page of Summons for Judgment whereas,
in the affidavit in support of Summons for Judgment, the said amount is
claimed to be Rs.4,81,871/-. The Summons for Judgment application
was taken out in the month of April 2019 and its copy was served after
more than three years on the learned advocate of the defendant. The
contradictions in the claim amount are pointed out by the defendant in
his reply affidavit but till the date of hearing the learned advocate of the
defendant did not file any rejoinder to the said reply affidavit. Simply a
submission was made during the hearing on the Summons for
Judgment that the discrepancies in the claim amount is a typographical
error. It is also pertinent to note here that the service affidavit
pertaining to the main Writ of Summons was filed on 21/08/2023
though the original summary suit was filed in the year 2018.
8. Thus, in view of the above discussion, I am of the view
that, the defendant has raised valid triable issues. The conduct of the
plaintiff in not taking prompt steps in its matter from the year 2018 and
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5 SJ 203-19 in Comm. SU 673-21
the discrepancies in the claim amount coupled with the fact of absence
of material particulars in the Summons for Judgment application
necessitates that the plaintiff should prove his claim strictly during the
trial only. No case is made out by the plaintiff for making the present
Summons for Judgment absolute. Therefore, unconditional leave needs
to be granted to her for defending the suit. Consequently, I proceed to
pass the following order.
ORDER
1. The Summons for Judgment No.203 of 2019 is
hereby rejected.
2. The defendant is granted unconditional leave to
defend the suit.
3. The defendant is directed to file his written
statement on the next date without fail.
4. Summons for Judgment is hereby rejected and
disposed off accordingly.
Date :17/10/2023. Sd/-
( VISHAL SADASHIVRAO GAIKE )
Direct dictated on : 17/10/2023 DISTRICT JUDGE, CR NO.32
Checked on : 17/10/2023 CITY CIVIL COURT,
Signed on : 17/10/2023 GR. MUMBAI.
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6 SJ 203-19 in Comm. SU 673-21
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
17/10/2023 Mrs.Rupali S. Bhor
Name of the Judge(with CR No.) HHJ SHRI. VISHAL SADASHIVRAO
GAIKE(C.R.No.32)
Date of pronouncement of Order 17/10/2023
Order signed by P.O. on 17/10/2023
Order uploaded on 17/10/2023
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