Order 2

Order Details: Notice of Motion
Pdf Text: NM No. 1236 / 2023
Pradip Vs. Ms. Real
Order (Exh.16) 1 of 10
MHCC010034532023
City Civil and Sessions Court, Mazgaon Greater Mumbai
Court Room No. 31 – Commercial Court
Notice of Motion No. 1236 / 2023
in
Commercial Suit No. 67 / 2020
Pradip Labhshanker Mehta … Applicant
(Original Plaintiff)
IN THE MATTER BETWEEN
Pradip Labhshanker Mehta … Plaintiff
Vs.
M/s. Real Agencies & Ors. … Defendants
Appearances :
Plaintiff : Adv. Ketan Parekh
Defendant Nos. 2,3,4,6 & 7 : Adv. Usama Memon
Adv. Khan Farha
Adv. Tabish Jamadar
Defendant No. 5 : Adv. Hafeez Patanwala
Adv. Abbas Sayed
CORAM : PRASAD P. KULKARNI
COURT ROOM NO.31.
DATE : 02.09.2025
***************************************************************
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Order (Exh.16) 2 of 10
ORDER
(Delivered on this 2nd day of September, 2025)
1. Plaintiff moved this Notice of Motion for Summary Judgment
under Order XIII-A Rule 6 of the Code of Civil Procedure, 1908 (the
Code, for short). Notice of Motion is supported by an affidavit. Only
defendant no. 5 filed reply affidavit at Exh. 17. Defendant Nos. 2, 3, 4,
6 & 7 not filed reply to Notice of Motion. Submission made by Advocate
for defendant nos. 2, 3, 4, 6 & 7 on 16.07.2025 is recorded in the
roznama that plaintiff has not sought any relief against these
defendants. That might be the reason these defendants not filed reply.
Crux of the Notice of Motion is as follows :
2. Plaintiff filed this suit to recover an amount of Rs. 28,00,504/-
against partnership firm i.e. defendant no. 1 and its partners. Plaintiff
placed an order to defendant no. 1 vide proforma invoice of Rs.
26,60,837/-. Defendant nos. 1 & 5 received said amount from plaintiff.
But defendants not supplied goods, as agreed. Plaintiff issued notice to
all defendants. Only defendant no. 5 replied that notice and denied
transaction as affirmed by plaintiff.
3. As per plaintiff, defendant no. 5 represented himself as
partner of defendant no. 1. Plaintiff had done transaction with
defendant no. 5 as partner of defendant no. 1. Remaining defendants
are trying to escape from liability to repay the amount to plaintiff. For
the very reason remaining defendants are saying that they got retired
from partnership firm i.e. defendant no. 1.
4. Amount paid by plaintiff was directly deposited in the account
of defendant nos. 1 and 5. Defendants have no prospects of succeeding
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Order (Exh.16) 3 of 10
or defending this claim or no valid or legal defence can be raised in this
suit. Even oral evidence is not require to be recorded in this proceeding.
Hence, plaintiff is entitled for Summary Judgment.
5. Crux of reply affidavit filed by defendant no. 5 is that, in
Summary Judgment i.e. Notice of Motion plaintiff claimed contrary
reliefs. Though defendant no. 1 and all its partners are sued in this suit,
but Summary Judgment is prayed only against defendant nos. 1 and 5.
So far as prayer clause (b) of the Notice of Motion is concerned,
defendant no. 5 pointed out that plaintiff prayed for conditional order
under Order XIII-A Rule 7 (1) (2) of the Code against defendant nos. 1,
5 and also against remaining defendants. So, as per defendant no. 5,
contrary reliefs are claimed by plaintiff.
6. Defendant no. 5 contended that, plaintiff has not assigned any
reason why plaintiff is selectively claiming Summary Judgment only
against defendant nos. 1 and 5. If at all any relief is granted against a
partnership firm, all partners would be bound by said Judgment or
Decree. When the so called dispute is associated with a partnership
firm, plaintiff cannot pick and choose one of the person or partner
against whom plaintiff want to claim Summary Judgment.
7. Nothing is there on record, which can suggest that defendant
nos. 2, 3, 4, 6 and 7 got retired from the partnership firm. Defendant
no. 5 vehemently submits that he does not even know plaintiff and
never had transaction / conversation with plaintiff. In fact defendant
no. 5 requested plaintiff to show him something, which could say that
defendant no. 5 ever had any transaction / conversation with plaintiff.
Even defendant no. 5 issued notice to plaintiff, but plaintiff not replied
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Pradip Vs. Ms. Real
Order (Exh.16) 4 of 10
it.
8. Therefore, defendant no. 5 filed Notice of Motion No.
2526/2021 under Order 11 Rule 3(2) of the Code. However, the then
Presiding Officer has turned down that Notice of Motion with an
observation that if defendant no. 5 want inspection of documents, that
can be done as and when evidence affidavit of plaintiff and documents
are filed on record.
9. Thus, defendant no. 5 was waiting plaintiff to file evidence
affidavit but surprisingly this Notice of Motion is moved. Thus, denying
enter contentions of Notice of Motion, defendant no. 5 prayed for its
dismissal.
10. Plaintiff filed rejoinder vide Exh.18. Plaintiff filed written
notes of arguments vide Exh.19 and defendant no. 5 vide Exh.20.
11. Learned Senior Counsel Mr. Ketan Parekh appearing on behalf
of plaintiff submits that plaintiff made payment of Rs. 26,60,837/- and
it is credited in the account of defendant no. 1. Despite of receiving
100% amount, defendants not supplied goods to plaintiff. Therefore,
this is a fit case wherein this Court may pass Summary Judgment.
Learned Advocate for plaintiff further submits that defendant no. 5 has
not denied execution and existence of proforma invoice. Irrespective of
retirement of defendant nos. 2, 3, 4, 6 and 7 they are made parties to
the suit only because they were / are partners of defendant no. 1. Thus,
Learned Advocate for plaintiff submits that Notice of Motion may be
allowed.
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Order (Exh.16) 5 of 10
12. Per contra Learned Advocate Mr. Hafeez Patanwala appearing
on behalf of defendant no. 5 submits that selectively plaintiff has
claimed Summary Judgment only against defendant nos. 1 and 5.
However, such course of action is not legal because if firm is liable, all
partners would be liable as well. There is no documentary evidence
attached with the Notice of Motion. Defendant no. 5 has no concern at
all with plaintiff and he never had any transaction with plaintiff. Facts
of the case are such that it is necessary to record oral evidence of the
parties. Hence, Notice of Motion may be dismissed. Advocate for
defendant no. 5 relied on few authorities, which would be discussed in
reasoning part of this order.
13. Considering rival submissions, facts and circumstances of the
present case, following points arise for my determination and I have
recorded my findings for the reasons discussed as follows:
Sr.
No.
Points Findings
1 Whether plaintiff is entitled for Summary
Judgment under Order XIII-A Rule 6 of the
Code of Civil Procedure, 1908?
In the Negative.
2 What Order? Notice of Motion
is dismissed.
R E A S O N S
Reasons as to Point Nos. 1 & 2
14. Considering rival submissions, I have gone through record
and proceedings. Much was argued by both parties in respect of prayer
clause (a) and (b) of the Notice of Motion. As per Advocate for
defendant no. 5, these are contrary reliefs, which plaintiff are claiming.
So far as prayer clause (a) is concerned, plaintiff prayed to pass a
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Order (Exh.16) 6 of 10
Summary Judgment under Order XIII-A of the Code only against
defendant nos. 1 and 5. Whereas vide prayer clause (b), relief under
Order XIII-A Rule 7(1)(2) of the Code is claimed against all defendants.
15. Thus, apparent on the face of record plaintiff cannot blow hot
and cold. It is so because plaintiff has sued partnership firm and all its
partners are necessary party to the suit. In Notice of Motion itself,
plaintiff contended that partners of defendant no. 1 raised false plea
that they got retired from the partnership firm only with intent to
escape from liability. Said submission leads to suggest that as per notion
of plaintiff, remaining defendants are still partners of defendant no. 1.
So, as of now it is not known whether defendant nos. 2, 3, 4, 6 and 7
really got retired from the partnership firm or still they are partners of
defendant no. 1. This being a fact, oral evidence is required either to
prove or disprove it.
16. Summary Judgment in Commercial Suits are governed under
Order XIII-A of the Code. Grounds for Summary Judgment are
mentioned in Order XIII-A Rule 3 of the Code, which says that when
defendant has no real prospect of successfully defending the claim or
there is no other compelling reason why the claim should not be
disposed before recording of oral evidence, in such cases Summary
Judgment can be passed.
17. In this suit, defendant no. 5 has denied the fact that he ever
met plaintiff and had any business transaction with him. Advocate for
defendant no. 5 submits that despite of issuing legal notice and in spite
of filing Notice of Motion, defendant no. 5 was unable to get any
document from plaintiff, which could show any conversation or
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Order (Exh.16) 7 of 10
transaction took place between plaintiff and defendant no. 5. It is a
matter of record that plaintiff has not placed on record anything, which
could even prima facie says that plaintiff and defendant no. 5 ever had
any interaction telephonically or electronically i.e. by email or
personally. So, it is one of the gray area in this suit for which oral
evidence of both parties is required.
18. It is case of plaintiff that defendant no. 5 represented himself
as a partner fo defendant no. 1. This particular aspect will be governed
by doctrine of holding out under Section 28 of the Indian Partnership
Act, 1932. Whether really defendant no. 5 represented himself as a
partner of defendant no. 1 or not, again it being a fact, oral evidence is
required to prove or disprove it.
19. In support of Notice of Motion vide Exh.A, plaintiff filed
photocopy of proforma invoice and on that basis claimed that plaintiff
paid Rs. 26,60,837/- to defendant nos. 1 and 5. Whether, the so called
amount paid by plaintiff is really credited to the account of defendant
nos. 1 and 5 has to be verified, after giving an opportunity of leading
evidence to both parties. One has to keep in mind that as per plaintiff
only defendant no. 5 has replied notice issued by plaintiff. As per
plaintiff, defendant no. 5 in his reply notice has specifically denied that
he knows plaintiff and had any transaction with him. These denials are
very specific and issues involved in this suit are such that it requires
evidence.
20. In support of his submission, Advocate for defendant no. 5 has
relied on following two rulings :-
1. Bright Enterprises Pvt. Ltd. & Anr. Vs. MJ Bizcraft LLP & Anr.
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Reported in 2017 SCC OnLine Del 6394
2. IDBI Trusteeship Services Ltd. Vs. Hubtown Ltd. reported in
(2017) 1 Supreme Court Cases 568.
21. I have gone through these Judgments. In case of IDBI (Supra)
Hon’ble Apex Court thoroughly discussed Order XXXVII of the Code i.e.
Summary Procedure. Present suit is a Commercial Suit and it would be
governed by Commercial Courts Act, 2015 and its procedure would be
subject to amendment in the Code, as applicable to Commercial
Disputes.
22. However, in case of IDBI (Supra), Hon’ble Apex Court in para
nos. 17.2 and 17.3 observed that if the defendant raises some triable
issues indicating that he has a fair or reasonable defence, although not a
positively good defence, the plaintiff is not entitled for Judgment. Same
analogy can be made applicable to Summary Judgment, which are
governed under Order XIII-A of the Code. In case of Bright (Supra),
Hon’ble Delhi High Court observed that Summary Judgment under
Order XIII-A of the Code is an exceptional provision and it is to be used
sparingly.
23. These two authorities upto great extent clarify that how the
Court should appreciate facts on record and to deal with Summary
Judgment. Considering rival submissions and peculiar facts involved in
this suit, only on the basis of photocopy of proforma invoice, this Court
is not inclined to allow this Notice of Motion when various triable issues
are involved. Hence, I am not inclined to accept submissions made by
Learned Advocate for plaintiff. Considering the stand taken by
defendant no. 5, it cannot be said that defendant has no real prospect of
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Order (Exh.16) 9 of 10
successfully defending the claim. Therefore, Notice of Motion deserves
to be dismissed. Hence, following order :
ORDER
1. Notice of Motion No. 1236 of 2023 is dismissed.
2. No order as to cost.
3. Order is dictated and pronounced in Open Court.
4. Record of Notice of Motion No. 1236 / 2023 shall form part
of Commercial Suit No. 67 / 2020.
Mumbai
Dated : 02.09.2025
(Prasad P. Kulkarni)
Judge, City Civil & Sessions Court,
Court Room No.31 - Commercial Court,
Mazgaon, Greater Mumbai
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Pradip Vs. Ms. Real
Order (Exh.16) 10 of 10
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
02.09.2025 5.15 p.m. Prachi Y. Potdar
Stenographer - Grade I
Name of the Judge HHJ Shri. Prasad. P. Kulkarni
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
02.09.2025
Judgment/order signed by P.O on 02.09.2025
Judgment/order uploaded on 02.09.2025
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