Order 1

Order Details: Other
Pdf Text: MHCC010074082018 Presented on 21-06-2018
Registered on 21-06-2018
Decided on 21-07-2023
Duration 05 Yrs. 1M
IN THE BOMBAY CITY CIVIL COURT
AT BOMBAY
SUMMONS FOR JUDGMENT NO. 174 OF 2018
IN
SUMMARY SUIT NO. 75 OF 2018
M/s. J. K. Infra-Utilities Pvt Ltd ]
a Company duly registered under the ]
provisions of Indian Companies Act, 1956, ]
through it’s Authorized Officer, ]
Mr. Rajendra Mane, Accounts Assistant ]
Age: years, Occupation:Service, ]
having it’s registered Office at: ]
Unit No.221, 2nd floor, Swastik Disa ]
Corporate Park, Opp. Shreyas Cinema, ]
L.B.S. Marg, Ghatkopar (W), ]
Mumbai- 400 086. ]...Plaintiff
VERSUS
M/s. Genesis Resorts Private Ltd. ]
302/B, Kadamgiri Complex, ]
Hanuman Road, Ville Parle (E), ]
Mumbai-400 057. ]...Defendant
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Appearance :
Ld. Adv. Ms. Meenakshi Shinde i/b. L.H.Hingu & Co. for plaintiff.
Ld. Adv. Mr. Hitesh Shah for defendant.
CORAM : HHJ SHRI K. P. SHRIKHANDE
C. R. NO. : 61
DATE : 21/07/2023.
O R D E R
(Dictated and pronounced in open Court)
1] The plaintiff is a private limited company engaged in the
business of providing, installing, testing and commissioning and,
handing over the operations related to all the types of plumbing,
sanitary and firefighting works. The defendant is a private limited
company deals in the business of hotel and restaurants.
2] The defendant company intended to construct a multi-star
hotel and was in need of contractors for the purpose of supply and
installation of plumbing work at the said site and therefore, it floated
the tenders. The plaintiff had submitted its quotation. The defendant
company had agreed to give the work order to the plaintiff company
and accordingly, the work order was issued on 08/02/2013. As per
the said work order, the work of the plaintiff company was to design,
supply, install, testing and commissioning the plumbing materials and
to work at the said site. Total contract value was fixed at
Rs.3,75,00,014/- including all the taxes. The defect liability period
was 12 months from the date of completion of the work and retention
amount was 5% of the total amount of the work completed and the
same was agreed to be paid to the plaintiff company on expiration of
the period of the defect liability.
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3] According to the plaintiff company, the defendant gave
the letter dated 30/04/2013 to it for making certain minor changes
with respect to supply and installation of sewage pump with cutter
and, panel for kitchen and accordingly, there were changes in respect
of the prices of the materials excluding VAT and service tax. However,
other terms remained the same as it were agreed in the work order
dated 08/02/2013. Due to changes in specification and scope of the
work, datum line of the work entrusted to the plaintiff was mutually
extended time to time.
4] According to the plaintiff, as per the work order, the
plaintiff commenced the work of supply and installation of the
plumbing materials and it raised the various RA Bills and it were duly
acknowledged by the defendant. Most of the work was completed in
or about August, 2014 and some minor work remained to be done.
The defendant failed to make the payments despite repeated request.
The defendant made the part payment to the defendant time to time
and last amount was received on 15/11/2014.
5] According to the plaintiff, as on 01/02/2015, amount of
Rs.75,27,213/- was due and payable by the defendant excluding
retention amount. The plaintiff regularly demanded the said amount,
but the defendant didn’t make the payment and therefore, the plaintiff
had issued several e-mails reminding to make the said payment. Later
on after adjusting and calculating actual amount, the amount due
found to be Rs.74,32,336/- and due retention amount was
Rs.19,37,635/- aggregating to Rs.93,69,971/-. According to the
plaintiff, the defendant falsely replied by e-mail making false
allegation about pending work.
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6] According to the plaintiff, the documents and built
drawings were handed over to the consultant of the defendant i.e. to
the Nat Engineering Consultant on 23/11/2015 and it is the date of
handing over the completed entire project to the defendant. Though
the entire project was handed over to the defendant, the defendant
didn’t make the payments to the plaintiff. On the other hand, the
defendant raised the debit notes upon the plaintiff claiming the
amount for which the plaintiff is not liable to pay, only with the
intention to delay and defeat the legitimate claim of outstanding
amount of the plaintiff. According to the plaintiff, the defendant is
liable to make the payment of Rs.74,32,336/- towards the outstanding
amount and amount of Rs.19,37,635 as retention amount aggregating
to Rs.93,69,971/-.
7] On appearance of the defendant, the plaintiff served on
the defendant the summons for judgment, and the defendant then
filed the affidavit in reply to the summons for judgment praying to
grant leave to defend the suit.
8] Counsel for the plaintiff submits that the defendant has
raised the moonshine defence and in fact, there is no defence of the
defendant. According to him, no triable issues have been raised by the
defendant and the defendant is not even entitled to the conditional
leave, and prayed for granting leave to sign the judgment. The
defendant and his counsel are absent. Record and the Roznama shows
that they were also absent on the previous dates and therefore, taking
into consideration the submission of counsel for the plaintiff and going
through the reply of the defendant filed to the summons for judgment,
I proceed to decide whether the plaintiff is entitled to sign the
judgment or whether the defendant is entitled to leave to defend the
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suit.
9] It is apparent that the defendant has not disputed about
giving the work order dated 08/02/2013. It is apparent that various
terms and conditions have been included in the said work order and in
accordance with the said terms and conditions, the work was to be
executed. The said project undisputedly was to be completed by
30/06/2013. However, according to the plaintiff, it has been
completed and handed over to the defendant on 23/11/2015. It is
seen that the defendant has denied of extension of the time-limit of
completion of the project.
10] There is no dispute that plumbing and sanitation work
was to be carried out for the amount of Rs.2,61,54,169.34 and
firefighting and sprinkler was for the amount of Rs.1,13,45,844.95
aggregating to Rs.3,13,45,844.95. It is apparent that it was the
estimate cost of the project and was not the fixed cost. It is clearly
mentioned in the work order that “this is an Indivisible Works Contract
which is an item rate contract and not a lump-sum work. Quantities
mentioned in the said schedule of the qualities are approximate and
are subject to variation by addition, reduction, omission or deletion.
11] RA bill was to be raised on monthly basis and the
defendant had agreed to pay the amount. However, as per the
contention raised by the defendant, the said RA bill was to be raised
and approved by project manager/valuation engineer/Nat Engineering
Consultant; however, RA bills submitted by the plaintiff were not
approved by project manager/valuation engineer/Nat Engineering
Consultant. According to the defendant, RA bills submitted were the
tentative RA bills. Though the plaintiff has placed on record the RA
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bills, it is not appearing that it were either approved by the project
manager, or valuation engineer, or Nat Engineering Consultant. So the
exact liability of the defendant to pay the amount on the basis of those
RA bills is questionable though the defendant has paid many times the
amount towards the work done by the plaintiff.
12] As per the contention raised by the defendant, the
plaintiff to had to file two different suits based on the 1st and 2nd work
orders and raised the question on the maintainability of a single suit.
According to it, work order dated 08/02/2013 and work order dated
30/04/2013 are altogether different; however, the plaintiff has raised
the RA bills in continuation of both the projects as if both the work
orders were in respect of the same work/project. After going through
those work orders, it is appearing that in both the work orders, terms
and conditions have been described with the clarity. In the 2nd work
order, work/project was to be completed by 15/07/2013. It is not
pointed out by the counsel for the plaintiff that 2nd work order has a
reference of the previous i.e. 1st work order dated 08/02/2013.
Therefore, prima-facie there are sufficient reasons to believe the
defendant that 1st work order and 2nd work order are different. The
plaintiff has raised the common RA bills as if the both the projects
were one and the same. So, it is also the triable issue whether the
plaintiff ought to have filed two different suits relating to the two work
orders and whether the present single suit is maintainable.
13] There is no dispute that the plaintiff had made demand of
the outstanding amount several times by issuing the e-mails. It is also
appearing that the defendant had replied the e-mail and denied the
liability to pay the outstanding amount by raising the grievances that
the project is not completed and handed over and certain works are
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incomplete. It is appearing that the RA bills were to be raised with
reference to the various terms and conditions depending on the quality
and quantity of the materials used. The defendant has raised the
dispute about carrying out the complete work and handing over the
project. RA bills are not appearing to have been approved by the
certified person/expert mentioned in the work order. So, the
contention raised by the defendant that the suit is not for the
liquidated amount as the balance amount was not finalized, cannot be
said to be without any substance and thus, substantial defence of
maintainability of the suit has been raised and it can be said that the
defendant has raised the triable issue of maintainability of the
summary suit.
14] The defendant has raised the point of using the sub-
standard materials and not doing the work as per the terms and
conditions. Whether the work has been carried out as per the terms
and condition is also a triable issue in order to fix the liability of the
defendant for the particular quantum of amount. So, another question
arises whether the suit filed by the plaintiff is for the liquidated
amount, and certainly it is the triable issue as it also goes to the root of
maintainability of the summary suit.
15] It is also the contention of the defendant that the suit is
not filed within the period of limitation. It is appearing that both the
work orders had the different date for completion of the project. As
per the contention raised by the defendant, the project is not
completed by the date fixed and not handed over. As per the
contention raised by the defendant, the suit is not filed within the
period of limitation. Undisputedly, the last payment of Rs.4,00,000/-
was made on 15/11/2014. Suit is filed on 21/11/2017. Therefore, it
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can be said that the defendant has raised probable defence and raised
the triable issue about not filing the suit within the period of
limitation.
16] Therefore, having regard to the various points raised by
the defendant in the reply/leave to defend the suit, I’m of the view
that the defendant has raised the substantial defence and raised the
triable issues and as such, the defendant is entitled for the leave to
defend the suit unconditionally. Merely because of failure of the
defendant to argue on the entitlement of the plaintiff to sign the
judgment and on the point of granting the leave to defend the suit, it
cannot be held that the plaintiff has become
ipso-facto entitled to sign
the judgment. In the result, I proceed to pass the following order.
O R D E R
1] Summons for judgment No.174 of 2018 is dismissed.
2] Leave to defend the suit is granted unconditionally.
3] The defendant to file the written statement within 6 weeks.
4] Summons for judgment No.174 of 2018 is disposed of.
Mumbai (K. P. Shrikhande)
Date: 21/07/2023 Judge, City Civil Court Gr. Mumbai.
Court Room No.61
Dictated on: 21-07-2023
Corrected & signed on: 26-07-2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
26-07-2023 at 4.00p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri K. P. Shrikhande
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
21-07-2023
JUDGMENT/ORDER signed by P. O. on 26-07-2023
JUDGMENT/ORDER uploaded on 26-07-2023
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