Interim Order 1

Order Details: Other
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IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
SUMMARY JUDGMENT NO.16 OF 2021
IN
COMMERCIAL SUIT NO.60 OF 2019
New Globe Logistik LLP ]
A Limited Liability Partnership Registered under the ]
provisions of the Limited Liability Partnership Act, ]
2008, having its office at Khatau Building, 44 Shahid ]
Bhagat Singh Marg, Fort, Mumbai400001 ]...Applicant
(Org. Plaintiff)
In the matter between
New Globe Ligistik LLP ]....Plaintiff
V/s
1. M/s. M.Square International ]
A registered Partnership Firm under the Partnership
Act, 1932, having its office at 701A, Rangoli ]
Complex, Near Air Cargo Complex, Sahar Road, ]
Andheri, Mumbai400 099 ]
2. Mr.Mayur N. Mistry ]
Adult, Indian Inhabitant, Occ:Business, Being the ]
partner of defendant No.1 having his address at ]
701A, Rangoli Complex, Near Air Cargo Complex, ]
Sahar Road, Andheri, Mumbai400 099 ]
3. Mr.Sanket C.Mane ]
Adult Indian inhabitant, Occ: Business, Being the ]
partner of defendant No.1 having his address at ]
701A, Rangoli Complex, Near Air Cargo Complex, ]
Sahar Road, Andheri, Mumbai400099 ]......Defendants
Appearances:
Ld. Adv. Chaitanya Bhandarkar for the plaintiff.
Ld. Adv. Ram Laxmipalli for the defendants.
CORAM : HIS HONOUR ADHOC JUDGE
SHRI. RAJESH A. SASNE
(C.R.No.32)
DATED :26th October, 2021
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ORDER
This application for summary judgment is taken out by the
plaintiff under Order XIIIA of the Code of Civil Procedure,1908 (in
short ''CPC'') requesting to pass judgment on the claim, directing the
defendants to pay the sum of Rs.5,73,547.50 with interest on
Rs.4,31,933/ at the rate of 18% p.a. from 21.06.2019 till the date of
realisation.
In brief, the facts giving rise to filing of this summary judgment are
as under:
2. The plaintiff is in the business of providing freight (air/sea)
and logistic services including but not limited to tracking inland
transportation, preparation of shipping and export documents,
warehousing, booking cargo space, deconsolidation etc. The defendant
No.1 is a partnership firm and the defendant Nos.2 and 3 are its
partners. The defendant No.1 has engaged in business of 'cargo freight
forwarding'. Pursuant to the business relationship with the defendants,
the plaintiff was authorized to handle the Customs House Agent (CHA)
of defendant No.1 and accordingly the plaintiff rendered 'air export
freight services' as per the specifications and requirements stated in the
KYC form executed by the defendants. The plaintiff performed CHA
services for the first defendant's cargo consignment from Mumbai to
various international destinations. For such successful delivery, the
plaintiff has raised invoice including terms and conditions as agreed
between the parties.
3. From May, 2017 to September, 2017 the plaintiff has raised
invoices against freight services rendered to the defendant No.1.
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Particulars of which are provided in paragraph No.9 of this application.
The total amount of those 14 invoices is Rs.4,48,608/. Against these
invoices, the defendant No.1 has made part payment of Rs.16,615/ and
has failed to make complete payment thereof. As per the terms and
conditions of the invoices, the interest at the rate of 18% p.a. would be
charged, if there is delay beyond credit period of 30 days. The
defendant No.1 by way of part payment of the outstanding dues, issued
three cheques amounting Rs.1,64,269/, Rs.1,06,579/ and
Rs.1,18,974/. The total amount of cheques is Rs.3,89,822/. When the
plaintiff presented cheque No.000072 of Rs.1,67,269/, it was returned
as dishonored due to insufficient funds. Rest of the two cheques were
also returned with endorsement ''payment stopped by drawer''.
Accordingly, the demand notices under Section 138 of the Negotiable
Instruments Act, 1881 were issued upon the defendants. Thereafter,
complaints under Section 138 of the Negotiable Instruments Act, 1881
are filed. In spite of repeated demands, the defendants have failed to
make the payment of outstanding amount.
4. On 20.06.2019, the defendants are liable to pay the
amount of Rs.5,73,547.50 to the plaintiff. As per the terms and
conditions stated in the invoices, the defendants have not brought to
the notice of plaintiff about any discrepancy in the invoices. The
defendants have no real prospect of successfully defending the claim.
There are no compelling reasons as to why the plaintiff's claim shall not
be allowed in terms of prayer of this application. With these
contentions, the plaintiff has prayed to allow this application for
summary judgment and to pass judgment on the claim.
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5. The defendants by their reply filed to this application for
summary judgment has resisted it, contending that the application is
baseless, false, bogus and not maintainable. It is their further contention
that they are involved in the business of sending and /or delivering
goods, packages to its international destination overseas. The
defendants were having a single client namely ''Parle Elizabeth Tools
Pvt. Ltd.'' for delivering the goods, packages to overseas destinations.
The defendants hired freight services of the plaintiff shipment to be
delivered at destinations and accordingly, the plaintiff raised two
invoices bearing No.BOM/AE/FFCCL/ 00478/1718 and
BOM/AE/FFCCL/00476/1718 for sum of Rs.50,503/ and Rs.14,338/
respectively. First shipment was from Bombay to Brisbane (Australia) of
2 packages of 30 kg. and second shipment was from Bombay to
Asuncion (Pyasu)(Paraguay) of 4 packages of 100 kg. The defendants
have made payment of the invoices in the first week of July 2017. The
plaintiff had engaged the services of Starlight Airlines and Etihad
Airlines to deliver the consignments. On 15.07.2017 the defendants
client Parle Elizabeth informed the defendants that the partial packages
i.e. out of four packages which were supposed to be delivered at
Paraguay, only two boxes had reached, third box was wrongly
transported due to criss cross to Australia and the fourth box went
missing. One box of consignment of Paraguay was delivered to
Australia.
6. The aforesaid fact was brought to the notice of the plaintiff
and the plaintiff was asked to brought this fact to the notice of
concerned Airlines. There were exchange of various emails between the
parties, to resolve the issue. The plaintiff failed to keep constant follow
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up with Airlines, due to which considerable time lapsed and Parle
Elizabeth had to again manufactured the part package and send it to
their client at Australia and Paraguay. Thereby they had suffered losses
of Rs.6,01,040/. Said Parle Elizabeth deducted the aforesaid loss
amount from the outstanding amount payable to the defendants.
Accordingly, debit note was prepared. Thus, the defendants have
suffered loss of Rs.6,01,040/. It was due to negligence of the plaintiff.
7. The business relationship between the parties are
continued post July 2017. The plaintiff had assured the defendants that
they shall first try to rectify the mistake and redirect the packages to its
destination and if it failed in its attempt, the plaintiff shall file claim
with the concerned Airlines to recover the amount of loss suffered by
the defendants. It was assured that, once the amount is credited to the
plaintiff's account, same will be transferred to the account of the
defendants. There was an arrangement that if the plaintiff fails to
recover the amount, in that event the amount debited by the
defendants' client will be reimbursed or compensated by the plaintiff by
providing the services to various destination up to the extent of the
claim filed with the Airlines. According to the defendants, it was
decided that Parle Elizabeth will debit the amount of the defendants
and the defendants will debit the amount on the account of the plaintiff
and the plaintiff will raise claim with the Airlines. It was further assured
and promised by the plaintiff that, if the plaintiff failed to recover the
plaintiff's claim suffered by the defendants, the same can be deducted
by the defendants. Believing on his assurance, the defendants continued
the business with the plaintiff. The plaintiff was negligent and avoiding
making claim with the Airlines. After repeated and constant emails, the
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plaintiff at belated stage filed claim with Starlight Airlines and Copa
Airlines who were primarily responsible for criss cross deliveries.
8. The defendants are startup business, therefore, amount of
Rs.6,01,040/ deducted by Parle Elizabeth affected their business and
they were in financial crunch. As per understanding, the services
availed from the plaintiff from the period 08.05.2017 to 11.09.2017, 14
invoices were raised by the plaintiff amounting Rs.4,48,608/. The
defendants informed to the plaintiff that they shall debit the amount
from plaintiff's account pursuant to loss suffered in the services given by
the plaintiff, to which the plaintiff stated that they will file claim with
Airlines and as soon as the amount is credited in their account, they
shall transfer the claim amount to the defendants. As the financial
condition of the defendants were not good, thus, the defendants
expressed its inability to pay the amount of Rs.4,29,725/ . The plaintiff
requested for cheques and assured that they will not deposit the same
as it will be just for security lying with them. Therefore, the defendants
have issued three undated cheques against the pending dues. Those,
cheques were issued on the condition that, it will not be deposited. In
spite of assurance, the plaintiff deposited the said cheques. The cheque
No.000072 returned for funds insufficient and therefore the defendants
have stopped payment of other two cheques. Thereafter, the plaintiff
filed claim with Airlines on 20.12.2017. The plaintiff in absence of
proper persuasion of claim, failed to recover it from the Airlines. When
the plaintiff failed to recover the claim amount from the Airlines, the
plaintiff in order to avoid responsibility to pay the amount of
Rs.6,57,414.10 on account of the loss suffered by the defendants, filed
present application for summary judgment. The plaintiff is responsible
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for loss caused to the defendants. The defendants are entitled to
recover the amount of loss of Rs.6,57,414.10 from the plaintiff as same
is due to the negligence of the plaintiff. The defendants have claimed
this amount from the plaintiff.
9. Invoices were raised before delivery and before shipment
reaches its destinations. The defendants have made payment of
Rs.16,615/ against invoice No. No.BOM/AE/FFCCL/00259/1718. As
the plaintiff failed to issue EDI receipt and thus the amount of
Rs.2668/ has been deducted by the defendants. Therefore, the claim in
respect of this invoice is false. The defendants have also addressed e
mail to the plaintiff on 07.07.2017 about this invoice. The defendants
are not liable to pay the alleged amount. In fact, the plaintiff is liable to
pay amount of Rs.6,57,414.10 to the defendant, after deducting the
amount of Rs.4,17,646/ for invoice No. No.BOM/AE/ FFCCL /00259 /
1718 to BOM/ AE/FFCCL/00478/1718 (14 invoices) and after
deducting the amount, the plaintiff is liable to pay the amount of
Rs.2,39,768.10 to the defendants. The defendants have denied that the
cheques were issued for part payment. The plaintiff has failed to render
service properly. The packages were unprofessionally handled. With
these contentions, the defendants have prayed to dismiss the
application for summary judgment.
10. Heard the learned Advocates for the plaintiff and for the
defendants. Points for determination along with my findings thereon
with reasons are as follows:
POINTS FINDINGS
1. Whether the plaintiffs satisfy that the No
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defendants have no real prospect of
successfully defending the claim?
2. Whether the plaintiffs satisfy that there
exists no other compelling reason why the
claim should not be disposed of before
recording of oral evidence?
No
3. Whether the plaintiff is entitled at this stage
for judgment on the claim?
No
4. What Order? Application for
Summary judgment
is dismissed.
REASONS
AS TO POINT NOs.1 TO 3:
11. The present application for summary judgment is filed
under Order XIIIA of the CPC. In view of Order XIIIA Rule 1 (3), an
application for summary judgment shall not be made in a suit which is
originally filed as a summary suit under Order XXXVII of the CPC. The
present suit was originally filed as summary suit. The plaint reads that it
is filed under Order XXXVII of the CPC. If it is to be considered that it is
filed as ordinary commercial suit, the plaintiff has not corrected the title
which shows that it is filed under Order XXXVII of the CPC. Hence,
apparently, this suit is filed as summary suit. Accordingly, application
for summary judgment in view of Order XIIIA, Rule 1(3) of the CPC is
not maintainable.
12. Irrespective of aforesaid observation, I proceed to decide
the application on merit. It is the case of the plaintiff that, the plaintiff
has performed CHA services for first defendant's cargo consignment
from Mumbai to various international destinations. The plaintiff has
raised various invoices from May, 2017 to September, 2017, amounting
Rs.4,48,608/. Against which, the defendant No.1 has made part
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payment of Rs.16,615/ and neglected to make further payment.
Whereas it is the contention of the defendants that out of four boxes
which were supposed to be delivered at Paraguay, only two boxes had
reached the destination and third box was wrongly transported to
Australia and the fourth box went missing. One box of consignment to
Australia was wrongly delivered to Paraguay and one box of
consignment to Paraguay was wrongly delivered to Australia. It is their
further case that same was communicated to the plaintiff. The
defendants' client was required to remanufacture the material and to
send the same for delivery. It is further contention of the defendants
that their client has deducted the amount of loss from the outstanding
amount payable to the defendants. Thereby the defendants have
suffered loss of Rs.6,01,040/. On the basis of these facts, it is the
contention of the defendants that, they are not liable to pay the amount
of plaintiff's claim.
13. The plaintiff has relied on various invoices as stated in
plaint, paragraph No.7. He also relied on dishonored cheques, copy of
legal notice etc. The defendants alongwith the written statement have
relied upon invoices of exporter Parle Elizabeth, bank statements, copy
of email, debit note of Parle Elizabeth issued to the defendant No.1.
Copy of claim filed by the plaintiff. Copy of email dated 07.07.2017.
14. On the basis of pleadings of the parties and documents
relied upon by them, it appears from the record that for CHA services
for first defendant's cargo consignment, the plaintiff has raised various
invoices amounting Rs.4,48,608/. The correspondence from the record
along with debit note of Parle Elizabeth shows that there is missing and
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wrong delivery of the boxes of consignment. The copy of debit note
Exh.D to written statement shows that the defendants' client Parle
Elizabeth had issued debit note against the first defendant towards loss
of material. Said debit note is of Rs.6,01,040/. It was issued on
31.08.2017. The plaintiff by letter dated 20.12.2017 informed to
Starlight Airlines and COPA Airlines about the missing shipment and
accordingly submitted the claim against the same, informing that
shipper has debited entire amount from the outstanding dues. The claim
is in respect of USD 9106.66 (Rs.6,01,040/). This correspondence
makes clear that there is disputed claim of Rs.6,01,040/.
15. The learned Advocate for the plaintiff referred to the letter
dated 21.09.2017 which is at page No.105 of the written statement. It is
issued by Parle Elizabeth, informing that the exporter Parle Elizabeth
has no claim against the plaintiff. Relying on this letter, it is urged by
the plaintiff that the Parle Elizabeth has no claim with respect to wrong
delivery or missing delivery of consignment. On reading the letter
minutely, it is noticed that said Parle Elizabeth has informed that it has
no claim against the plaintiff for criss cross package and lost package,
but said letter has not clarified that Parle Elizabeth has no claim against
the defendants. If this letter reads with the debit note Exh.D to the
written statement, it shows that Parle Elizabeth has claimed amount of
Rs.6,01,040/ against the defendants and accordingly the defendants
have claimed this amount against the plaintiff.
16. From the record, it appears that Parle Elizabeth have no
direct concern with the plaintiff. There is no contract between them. For
this reason also, the letter dated 21.09.2017 must have been issued by
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Parle Elizabeth exempting the plaintiff from the liability of claim. The
debit note issued by Parle Elizabeth clearly establishes that they are
claiming amount against the loss of material. Admittedly, about the
delivery of consignment, there was contract between the plaintiff and
the defendants. Whether for loss or wrong delivery of consignment,
there exists any liability on plaintiff? This aspect requires to be
considered in the present suit. Therefore, it cannot be said that the
defendants have no real prospect of successfully defending the plaintiffs
claim. Before allowing the plaintiff's claim, it is required to check
whether there exists any liability on the plaintiff to compensate for
wrong and missing delivery. Therefore, for these reasons, the claim
cannot be disposed of before recording oral evidence. Before deciding
the plaintiff's entitlement for the claim raised in the suit, liability if any,
against the plaintiff is required to be adjudicated. Hence, on the basis of
present set of facts, the plaintiff is not entitled for the judgment on the
claim.
17. The plaintiffs have relied upon judgment in case of Suraj
Sanghai Finance Ltd. Vs. Credential Finance Ltd. And Ors. [2002(4)
Mh.L.J. 770] wherein it is held that, ''it is only at the stage when the
Court grants leave conditional or unconditional to contest the suit that the
stage of filing written statement arises. A counter claim can be filed along
with written statement. Therefore, merely because a counter claim has
been filed, would not detract or result in the suit filed as summary suit
being treated as regular suit.'' In the present case in hand, there is
consideration of proceedings under Order XIIIA of the CPC. The
application under Order XIIIA of CPC can be filed after the written
statement is filed on record. For the consideration of plaintiff's
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entitlement for the claim under Order XIIIA of CPC, the defendants'
contentions in the written statement and counter claim are required to
be considered. There is no scope of leave to defend under Order XIIIA
of CPC. At the most there is possibility of judgment on the claim before
evidence. Hence, this judgment is not helpful for the plaintiff to deal
with the issue under Order XIIIA of the CPC.
18. The plaintiff further relied on the judgment in Ashok
Commercial Enterprises and Anr. Vs. Kamla Shakti Developers and
Ors. (2019 SCC OnLine Bom 4304), in this case, the suit was based on
dishonored cheques. There was no valid defence and therefore, the
claim was allowed and summary judgment was passed. In the present
case before me, there is substantial defence, the facts are different and
therefore, this judgment is not helpful to the plaintiff.
19. The plaintiff further relied on the judgment in Rajesh
Laxmichand Udeshi @ Bhatia Vs. Pravin Hirala Shah (2012 SCC
OnLine Bom 2181, wherein at paragraph No.16, the Hon'ble Bombay
High Court has relied upon the judgment of Hon'ble Supreme Court in
V.K. Enterprises Vs. Shiva Steels (2010)9 SCC 256, wherein it is held
that, ''Order XXXVII of CPC has been included in the Code of Civil
Procedure, in order to allow a person, who has a clear and undisputed
claim in respect of monetary dues, to recover the dues quickly by a
summary procedure instead of taking long rout of regular suit. The Courts
have consistently held that if the affidavit filed by the defendant discloses a
triable issue that is at least to plausible, leave should be granted, but when
the defence raised appears to be moonshine and sham, unconditional leave
to defend cannot be granted.''
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Judgment No.1621
20. In the present case in hand, the present order deals with
the plaintiff's entitlement for judgment on the claim as per Order XIIIA
of CPC. The point for consideration for such entitlement is to see
whether there is real prospect of succeeding the claim and whether the
defendants have no real prospect of successfully defending the claim. It
is also require to verify that there are no other compelling reasons why
claim should not be disposed of before recording of oral evidence. As
aforesaid, the defendants have real prospect of successfully defending
the claim. Hence, the judgment relied upon is not helpful to the
plaintiff.
21. In view of aforesaid findings, the plaintiff is not entitled for
judgment on the claim under Order XIIIA of the CPC. Hence, I answer
point Nos.1 to 3 in the negative.
AS TO POINT NO.4:
22. In view of my findings against point Nos.1 to 3, the
application for summary judgment is required to be dismissed. Hence,
in answer to point No.4, I pass the following order.
ORDER
1. Application for summary judgment is dismissed.
2. Case to proceed for case management hearing under Order XVA.
3. Costs of this application shall be in cause.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date : 26.10.2021 Mumbai.
Dictated on :26.10.2021
Transcribed on :26.10.2021 & 27.10.2021
Signed by HHJ on :27.10.2021
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Judgment No.1621
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
29.10.2021 at 1.20 p.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI R.A.Sasne
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
26.10.2021
Judgment/order signed by P.O. on 27.10.2021
Judgment/order uploaded on 29.10.2021
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