Final Order 1

Order Details: Other
Pdf Text: MHCC010128972019
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
SUMMONS FOR JUDGMENT NO. 289 OF 2019
IN
SUMMARY SUIT NO. 196 OF 2019
Arvindkumar Himmatlal Kothari ...Plaintiff
Vs.
1.Shivoham International & Ors. ….Defendants.
Appearance:-
Adv. Mr. Ramesh Jain for the Plaintiff.
Adv. Mr. Choube for the Defendants.
CORAM :- HER HONOUR JUDGE
SMT. S. G. SHAIKH
CITY CIVIL COURT,
GR.MUMBAI (C.R.NO.59)
DATE :- 05/03/2021
ORDER
(Dictated and pronounced in Open Court.)
1. The plaintiff has brought this Summons for Judgment and
thereby directing the defendant to pay amount of Rs.6,63,067.44ps.
with interest @ 18% per annum on Rs. 4,62,240/- from the date of the
suit till its realization.
2. Perused the documents on record. Heard advocates of the
parties at the length.
-- 1 of 4 --
2 SJ 289/2019 Sum. Suit No.196/2019
3. The defendants appeared on Summons for Judgment and
filed reply/ leave to defend on the principal reason that the defendants
have not received the goods as per the order. Therefore, defendants are
not liable to pay any amount to the plaintiff. It is further contended by
the defendants that this suit is not maintainable as per the provisions of
Order 37 of the Code of Civil Procedure as alleged invoices are not
signed by the defendants and it does not constitute a written contract.
4. There is also no dispute as regards to delivery of goods as
per the alleged invoice dated 03.05.2016. The question as to whether
the amount claimed arising out of the contract or not, and as to
whether provisions of Order 37 of the Code of Civil Procedure are
attracted or not to the present suit, suit leads inference that the
defendant has probable defence.
5. This Court neither intend to comment on the merits of the
case as this is not the stage of appreciation of evidence. But this case
being a case based on contract, it becomes necessary to generally assess
the strength of contract on the basis of documents on the test of basis
laws. It is also necessary to adjudicate the case on the basis of evidence
as to find out as to whether there was a written contract about payment
of Custom Duty or other charges by the defendant to the plaintiff.
6. In the opinion of this court, whether the plaintiff is entitled
to recovery of amount as claimed is the triable issue in this suit and this
issue can not be brushed aside on the procedure of summary suit.
7. In this background, it is held that defendants have made
out a case to allow them to leave to defend this suit. Defendant has
-- 2 of 4 --
3 SJ 289/2019 Sum. Suit No.196/2019
plausible defence. Therefore, the defendant should be allowed leave to
defend. However, if the defendant fails to prove the defence, it will
have to pay the amount claimed to the plaintiff. Therefore, in order to
curtail the possibility of any relief from defendant's side, this court
desire to put the condition on the defendant to deposit 50% of principal
amount of Rs.4,62,240/- which comes around Rs.2,31,120/-. The said
amount shall be deposited by the defendants within four weeks In
consequence the Summons for Judgment is liable to be dismissed.
Hence, the following order is passed.
ORDER
1. Summons for Judgment No.289 of 2019 is dismissed.
2. Defendants are allowed to defend the suit on the condition that
they shall deposit amount of Rs.2,31,120/- within four weeks
from today and file their written statement.
3. Costs in cause.
4. Summons for Judgment No.289 of 2019 is disposed off
accordingly.
(S.G. Shaikh)
Date : 05/03/2021 Judge, City Civil Court
Gr. Mumbai
Dated on :05/03/2021
Typed on : 05/03/2021.
Signed on :
-- 3 of 4 --
4 SJ 289/2019 Sum. Suit No.196/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
05/03/2021 05.20 p.m. ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.59)
Date of Pronouncement of
JUDGMENT/ORDER
05/03/2021
JUDGMENT/ORDER signed by
P.O.on
05/03/2021
JUDGMENT/ORDER uploaded on 05/03/2021
-- 4 of 4 --