Bombay High Court
Lata Jitendra Master vs Classic Weaves on 5 April, 2021
Bench: Anuja Prabhudessai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 6619 OF 2021
Lata Jitendra Master ..Petitioner
v/s.
Classic Weaves ..Respondents
Mr. Vijay Vasant Nene for the Petitioner.
Mr. R.M.Haridas a/w. Pratik Rahade for the Respondent.
CORAM : ANUJA PRABHUDESSAI, J.
DATED : APRIL 05, 2021.
P.C.
1. With consent of ld. Counsel for the respective parties, heard
finally at the stage of admission.
2. The Petitioner herein has assailed the Order dated 12.02.2021
whereby the learned Judge, City Civil Court, Borivali has declined
to grant unconditional leave to defend the suit but has granted
conditional leave subject to deposit of Rs.14,11,000/-.
3. Shri Nene, learned Counsel for the Petitioner submits that the
Petitioner has raised a triable issue. He contends that the invoice
relied upon by the Respondent clearly indicate that it is the Court at
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Surat which will have jurisdiction to try the suit. He further
submits that the Plaintiff has not placed on record the Power of
Attorney given by the other partners. He submits that the other
partners have not consented to filing of the suit. He further submits
that the Plaintiff has also not produced the Accounts books. He
therefore contends that the learned Judge has erred in granting
conditional leave.
4. Per contra, Mr. Haridas, learned Counsel for the Respondent-
Plaintiff submits that the parties have not excluded the jurisdiction
of the Court in Mumbai. He further submits that the Defendant has
admitted the amount due and as such, in view of the proviso to
Order 37 Rule 3 (5) of CPC, the learned Judge was justified in
granting leave to defend, subject to deposit of amount which is
admitted to be due.
5. I have perused the records and considered the submissions
advanced by the learned Counsel for the respective parties.
6. Before adverting to the facts of the case, it would be relevant
to refer to the judgment of the Apex Court in IDBI Trusteeship
Services Ltd. vs. Hubtown Ltd, (2017) 1 SCC 568. After
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considering the previous judgment on the issue the Apex Court has laid
down the following principles as to grant of leave in summary suits;
"18. Accordingly, the principles stated in paragraph 8 of
Mechelec's case will now stand superseded, given the
amendment of O. XXXVII R.3, and the binding decision
of four judges in Milkhiram's case shall apply. Hence
the following principles shall be observed while
considering whether to grant leave to defend a
summary suit:
(I) If the defendant satisfies the Court that he has a
substantial defence, that is, a defence that is likely to
succeed, the plaintiff is not entitled to leave to sign
judgment, and the defendant is entitled to unconditional
leave to defend the suit.
(ii) If the defendant raises triable issues indicating that
he has a fair or reasonable defence, although not a
positively good defence, the plaintiff is not entitled to
sign judgment, and the defendant is ordinarily entitled to
unconditional leave to defend.
(iii) The question whether the defence raises a triable
issue or not has to be ascertained by the court from the
pleadings before it and the affidavit of parties and it is
not open to it to call for evidence at that stage.
(iv) Even if the defendant raises triable issues, if a
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doubt is left with the trial Judge about the defendant's
good faith, or the genuineness of the triable issues, the
trial judge may impose conditions both as to time or
mode of trial, as well as payment into court or furnishing
security. Care must be taken to see that the object of
the provisions to assist expeditious disposal of
commercial causes is not defeated. Care must also be
taken to see that such triable issues are not shut out by
unduly severe orders as to deposit or security.
(v) If the defendant raises a defence which is a
plausible but improbable, the trial judge may impose
conditions as to time or mode of trial as well as
payment into court or furnishing security. As such a
defence does not raise triable issues, conditions as to
deposit or security or both can extend to the entire
principal sum together with such interest as the court
feels the justice of the case requires.
(vi) If the Defendant has no substantial defence and/or
raises no genuine triable issues, and the court finds
such defence to be frivolous or vexatious, then leave to
defend the suit shall be refused, and the plaintiff is
entitled to judgment forthwith;
(vii) If any part of the amount claimed by the Plaintiff is
admitted by the defendant to be due from him, leave to
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defend the suit, (even if triable issues or a substantial
defence is raised), shall not be granted unless the
amount so admitted to be due is deposited by the
defendant in Court."
7. In the instant case, the Respondent-Plaintiff is a partnership
firm duly registered under the Partnership Act, 1932, and a dealer in
raw material of Textile goods, and is also weavers/manufacturers of
textile goods. The Respondent-Plaintiff has its administrative
office in Mumbai at the address mentioned in the cause title,
whereas its factory is situated at Surat. The Petitioner-Defendant
had approached the Plaintiff at its Mumbai Office and had shown
interest in purchasing one of its machinery being warping machine
of Prashant Gamatex MP Super 108 and H Creel of 640 ends. After
negotiations, the Petitioner-Defendant agreed to purchase the said
machine for Rs.16,11,000/-. Accordingly, the Respondent-
Plaintiff sold and delivered to the Petitioner-Defendant the said
machine under Invoice No.CW 01/2015-2016 dated 3.9.2015.
The Petitioner-Defendant does not dispute the said transaction and
has also not disputed having accepted the said machine without
raising an objection of any nature. The Petitioner-Defendant has
also not disputed that the said machine was sold for sum of
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Rs.16,11,000/- as mentioned in the invoice dated 3.9.2015. It is
not in dispute that the Petitioner-Defendant had paid Rs.2,00,000/-
of RTGS upon taking delivery of the said machine, and agreed to
pay the balance amount of Rs.14,11,000/- within few days.
Subsequently, the Petitioner-Defendant issued two cheques dated
31.12.2015 for Rs.5,00,000/- each towards part payment of the
balance amount. It is not in dispute that the said cheques have
been dishonoured. The Respondent-Plaintiff thereafter by their
letters dated 22.2.2016 and 21.10.2016 called upon the Petitioner-
Defendant to pay the outstanding dues under the said invoices.
Despite, the said letters, the Petitioner-Defendant, failed to reply to
the said notice and/or to pay the balance amount as mentioned in
the said notice. The Respondent-Plaintiffs thereafter, by Demand
Notice dated 25.03.2017, called upon the Petitioner-Defendant to
pay an amount of Rs.19,18,000/- being the principal amount with
interest @ 24% per anum. A perusal of reply dated 10.05.2017
reveals that the Petitioner-Defendant has not disputed its liability to
pay the balance amount of Rs.14,11,000/-. The Petitioner-
Defendant having failed to pay the said amount, the Respondent-
Plaintiff filed suit under Order 37 of CPC for recovery of
Rs.19,84,800/- which includes the principal sum of Rs.14,11,000/-
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with interest @ 24% per anum.
8. The Petitioner-Defendant has filed an application for
unconditional leave to defend the suit mainly on the grounds that as
per the invoice, it is the Court at Surat that has jurisdiction to try
and decide the suit. Secondly, the other partners have not
consented to filing of the suit and that the Respondent-Plaintiff has
not filed the authorization given by the other partners.
9. As noted above, the Petitioner-Defendant had agreed to
purchase the machinery for Rs.16,11,000/- . In terms of the said
agreement, the Petitioner-Defendant has received possession of the
said machinery and has paid Rs.2,00,000/-. The Petitioner-
Defendant has not disputed its liability to pay the balance amount of
Rs.14,11,000/-. Hence, in terms of the proviso to Order 37 Rule
3(5) of CPC the trial Court was justified in directing the Petitioner-
Defendant to deposit the amount which is admitted to be due.
10. As regards the jurisdiction of the Court, the term no.4 of the
invoice states that "Place of Settlement and Jurisdiction Surat". It is
pertinent to note that the order for supply of machine was placed at
Mumbai and the contract was concluded at Mumbai. The Mumbai
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Court therefore has jurisdiction to try the suit. The term and
condition in the invoice does not specifically exclude the
jurisdiction of the Court in Mumbai and hence the contention of the
Petitioner-Defendant as regards the jurisdiction of the Court is
devoid of merits. The suit has been filed by a partnership firm.
The Plaint has been signed and verified by the partner of the
Plaintiff firm. There is no provisions which mandates a
partnership firm to place on record authorization of all partners on
record. Non production of authorization or a bald statement that
the other partners have not consented to filing of the suit or inter se
dispute, if any, between the partners cannot be construed as a
substantial or fair and reasonable defence as to grant unconditional
leave to defend the suit. Under the circumstances, the Petition has
no merits and is accordingly dismissed.
11. The Petitioner-Defendant shall deposit the amount before the
trial Court on the date scheduled for hearing.
(ANUJA PRABHUDESSAI, J.)
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