Final Order 1

Order Details: Other
Pdf Text: ..1.. Summons for Judgment
No.229/2019
MHCC010089572019
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO.229 OF 2019
(CNR NO.MHCC01-008957-2019)
IN
SUMMARY CIVIL SUIT NO.1021 OF 2016
Complete Dewatering Systems Pvt. )
Ltd. )...Applicant
(Org. Plaintiff)
In the matter of
Complete Dewatering Systems Pvt. )
Ltd. )...Plaintiff
Versus
Gammon India Ltd. )...Defendant
Appearance :-
Learned Advocate Kush Shah for plaintiff.
Learned Advocate Yash Jain for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 03/01/2024
O R D E R
1 The plaintiff has filed this summary suit for recovery of
amount contending that plaintiff is a company which carries business
of de-watering services, the defendant is a company carrying business
of project constructions. The authorised persons of defendant
contacted to the plaintiff for carrying work of de-watering system at
the defendant’s site in Dibrugarh, Assam. After due conversation, the
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plaintiff issued work order on 08/02/2012, amended work order on
11/02/2012, thereafter the plaintiff commenced the work at the site of
defendant on 19/02/2012; carried the work as per the agreement and
raised the invoices which is specifically narrated in paragraph No.24
and 27 of the plaint. Invoices were raised from the period 12/03/2012
till 26/02/2013. It is further contended that the defendant has
approved these bills and also deducted TDS in this regard, but the
defendant failed to pay the amount under the invoices and the amount
of Rs.19,50,799/- are due and payable by defendant. Therefore, the
plaintiff issued notice through advocate, but in vain. Consequently, the
plaintiff filed this suit for recovery of amount with interest at the rate
of 18% per annum from April-2013 till realisation of entire amount.
2 The defendant tendered appearance, thereafter, plaintiff
took out instant summons for judgment which was resisted by the
defendant by filing reply. The defendant has raised preliminary
objection contending that the invoices raised are time barred. The
defendant also raised objection that the instant summons for judgment
is taken out after delay of 46 days, required to be dismissed as per the
Section 119(4) of Bombay City Civil Rules. Another objection raised is
that the plaintiff is guilty of delay and latches and entire fault lies with
the plaintiff. The defendant has denied any liability to pay the amount
claimed by the plaintiff. The defendant also denied the contentions of
the plaintiff in the plaint and prayed for grant of unconditional leave.
The plaintiff rejoined to the reply of the defendant which is countered
by the defendant by filing sur-rejoinder denying the allegations against
each other.
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3 Heard rival parties at length.
4 The plaintiff tendered notes of argument alongwith
compilation of citations and defendant also tendered compilation of
citations.
5 On perusal of record it reveals that the defendant did not
deny the email conversation dated 06/02/2012, 07/02/2012 and
08/02/2012, but claimed that it does not constitute any
acknowledgment of liability. I am of the view that it is a proof that
there was an agreement for carrying out the work as claimed by the
plaintiff. The defendant has also denied the claim of plaintiff that the
work order was commenced and completed as per the work order,
however, it pointed that the plaintiff has not maintained measurement
books signed by both the parties. Thus, the contention of plaintiff that
it carried the work and completed is having substance. It is to note that
the defendant has not denied that it has deducted applicable TDS on
all the invoices, but claiming that it is deducted for the purpose of
accounting practice. Thus, the defendant has impliedly admitted that
the invoices were raised upon defendant. It was incumbent on the
defendant to raise all the objections, as soon as the invoices are raised.
6 So far as the issue of limitation is concerned it is a mixed
question of facts and law. The rival parties are required to adduce the
evidence on the point of limitation. During the course of argument, the
defendant has raised the issue of jurisdiction. The rival parties have
cited many citations in this regard, but I am of the view that until and
unless the parties are allowed to lead the evidence, the issue of
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jurisdiction as well as limitation cannot be answered, that too while
deciding the summons for judgment.
7 Another objection raised by the defendant is regarding the
delay caused in filing summons for judgment. Admittedly there was
delay in taking out summons for judgment, the defendant had raised
this objections by filing notice of motion No.382 of 2021, which was
dismissed by this Court. The notice of motion was filed for dismissal of
suit on the count of causing delay in taking out summons for
judgment. It is vehemently argued by the learned advocate for the
defendant that there is delay in taking out summons for judgment,
therefore, the defendant is entitled for unconditional leave to defend.
The defendant relied on the judgment passed by the Hon’ble Bombay
High Court in case of Hiralal and Co. Vs. Gammon India Ltd. reported
in 2010 (4) Mh. L.J. 294. But in the cited case, the Hon’ble Bombay
High Court has put the condition of expedition of trial while granting
leave to defend.
8 Per contra the plaintiff has relied on judgment passed by
Hon’ble Bombay High Court in the case of Bankay Bhiari G. Agarwal
and others Vs. M/s. Bhagwanji Meghji and others reported in 2001 (1)
Mh.L.J 345. In the cited case, issue was raised regarding the delay in
taking out summons for judgment by the plaintiff, the Hon’ble Bombay
High Court held that the delay in taking out summons for judgment
beyond period of 6 months is a relevant factor to be considered
whether the defendant is entitled for conditional or unconditional
leave to defend or refusing the application to leave to defend.
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9 The rival parties have cited their many judgments
regarding issue of jurisdiction, which are required to be considered
after allowing the parties to adduce the evidence. The defendant also
relied on the judgment/citation regarding acknowledgment of debt or
liability with reference to the provisions of the Limitation Act. As I have
already observed the issue of limitation as mixed question of fact and
law, both the parties are required to adduce evidence, hence, it is fit
case where the defendant deserves to be granted leave to defend,
however, considering the fact that the defendant has impliedly
admitted the email conversation and tax deduction on the invoices
raised by the plaintiff, I am of the view that the defendant is entitled
for conditional leave to defend on condition to deposit 50% claimed
amount which would be just and proper. It will be appropriate to direct
the defendant to deposit Rs.9,75,000/-. In the result I am inclined to
pass the following order :-
ORDER
1. Summons for Judgment No.229 of 2019 in Summary
Civil Suit No.1021 of 2016, is disposed of in terms of
following order -
2. Leave is granted to the defendant to defend the suit
subject to the defendant depositing in this Court a
sum of Rs.9,75,000/- within a period of one month
from the date of order and shall file written
statement within 30 days, thereafter.
3. After depositing the amount, the PLA Section is
directed to invest the same into Fixed Deposit, till
disposal of the suit or till further order.
4. If this conditional order of deposit is not complied
within the stipulated period, as mentioned
hereinabove, the plaintiff shall be entitled for an ex-
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parte decree against the defendants after obtaining a
non-deposit certificate from the PLA Section.
5. Summons for judgment is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Mazgaon
Mumbai
Date: 03/01/2024. Court Room No.84
Dictated on : 03/01/2024.
Transcribed on : 04/01/2024.
Signed by HHJ on : 04/01/2024.
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“Certified to be true and correct copy of the original signed order”.
05/01/2024 (Ms.Sonali Sawant)
at about 5.29 p.m. Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court and
Addl. Sessions Judge
Court Room No.84, Mazgaon,
Mumbai
Date of pronouncement of Order : 03/01/2024
Order signed by Hon'ble Judge on : 04/01/2024
Order uploaded on : 05/01/2024
at about 5.29 p.m.
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