M/S. Srinath Industries And Anr vs M/S. Dujodwala Products Ltd
2021 Latest Caselaw 6263 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CIVIL APPELLATE JURISDICTION

                         WRIT PETITION NO. 1118 OF 2021


      Shrinath Industries & Anr.                                 ..Petitioners

                     v/s.

      Dujodwala Products Ltd.                                    ..Respondent


      Mr. Rajesh Datar for the Petitioners.
      Mr. Uzair Kazi a/w. Sridhar Chari i/b.D.S.K. Legal for the
      Respondent.

                                      CORAM : ANUJA PRABHUDESSAI, J.

DATED : APRIL 08, 2021.

P.C.

1. With consent of the learned Counsel for the respective parties,

heard finally at the stage of admission.

2. The Petitioner has assailed the order dated 6 th March, 2018

whereby the learned Civil Judge, Senior Division, Panvel had

granted leave to defend subject to deposit of Rs.4,22,115,82, being

60% of the claim amount, within a period of three months from the

date of the order.

3. The Respondent was the Plaintiff and the Petitioners were

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Defendants in a suit filed under Order 37 Rule 1 of CPC, and shall

be hereinafter referred to as the Plaintiff and Defendants

respectively.

4. Shri Datar, learned Counsel for the Defendants submits that

the suit is not maintainable under the provisions of Order 37 Rule 1

of CPC. He submits that the Plaintiff has not complied with Rule

2 of Order 37. He further claims that the Defendants have raised

triable issues and as such the learned Judge was not justified in

granting conditional leave to defend.

5. Mr. Kazi, ld. Counsel for the Plaintiff states that the claim of

the Plaintiff is based on invoices referred to in para 5 of the Plaint.

He submits that there is a substantial compliance of the provisions

of Order 37 Rule 2 CPC. He submits that the Defendants have

failed to make out substantial defence and /or to prove that they

have a substantial or reasonable defence and as such the trial court

was justified in not granting unconditional leave to defend.

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 wherein the Apex

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Court, after considering the previous judgment on the issue 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

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to 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 Plaintiff is a company incorporated

under the provisions of the Companies Act and is engaged in the

business of manufacture and sell of Rosin, Camphor and Dipentene,

having its manufacturing plaint at Kumbhivali-Raigad.

8. The Defendants are traders in rosin camphor and carrying on

business from Karnataka. The Plaintiff has averred that the

Defendants had entered into a contract in the year 2007 under

which they had agreed to buy Rosin, Camphor and Dipentene

which were to be delivered by Plaintiff to the Defendant's business

place at Doddapet, Chintamani, Kolar in Karnataka. It is the case

of the Plaintiff that they had supplied to the Defendants the said

products at the business place of the Defendants. The Plaintiff has

relied upon the invoices dated 6.01.2011, 21.01.2011, 27.01.2011,

03.02.2011, 09.06.2011, 15.09.2011 and 18.12.2011 for total sum

of Rs.10,62,765.50. Out of the said bill amount, an amount of

Rs.9,74,385.75 was outstanding. The Defendants failed and

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neglected to pay the balance amount of Rs.9,74,385.75 under one

pretext or another. On 7th January, 2013 the Plaintiff forwarded to

the Defendants statement of outstanding amount. The Plaintiff has

placed on record copy of the statement of account at Exhibit H.

9. The Plaintiff has averred that the Defendants accepted the

statement of account and agreed to make the payment in

installments and had further requested to continue supply of goods.

The Defendants having failed to make the payment, the Plaintiff by

legal notice dated 3rd June, 2014 called upon the Defendants to pay

the outstanding amount of Rs.9,63,526/-. The Defendants did not

reply to the said notice, but issued cheques for Rs.1,00,000/-. The

said cheque was dishonoured. Upon being informed, the

Defendants made part payment in cash and vide letter dated

20.06.2014 assured to pay Rs.50,000/- per month. Since the

Defendants failed to pay the balance amount, the Plaintiff once

again by demand notice dated 5th January, 2015 called upon the

Defendants to pay the balance amount of Rs.7,03,525.88, and

further claimed an amount of Rs.1,25,000/- as compensation. The

Plaintiff filed a suit for recovery of outstanding dues and

compensation.

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10. It is true that the Plaintiff has not mentioned that the suit is

under the provisions of Order 37 of CPC. Nevertheless it is

specifically mentioned immediately before the number of the suit

that the suit is "Summary Suit". It may be mentioned that the

object of mentioning the provisions is to apprise the Defendant that

the suit is filed under the provision of Order XXXVII of CPC. In

the instant case, the Plaintiff has specified that the suit filed was a

'Summary Suit'. There is substantial compliance with the

provision and hence there is no serious deviation which has caused

prejudice to the Defendants.

11. The Plaintiff has claimed an amount of Rs.7,03,525.88 based

on invoices and the confirmed statement of account. The said

claim falls within one of the classes of suits enumerated in Order

XXXVII Rule 1(2) CPC. As regards the claim towards damages, it

is well settled that the Plaintiff can at any time abandon or give up a

part of the claim unilaterally and it is open to the Court to grant

conditional leave to defend in respect of part of the claim and

unconditional leave to defend for the remaining part of the claim. In

the instant case, as regards the claim for Rs.7,03,525.88, in the

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application for leave to defend, the Defendants have merely denied

the averments made in the plaint, without raising any substantial

defence. The Defendants have not disputed having received the

goods delivered by the Plaintiff. The Defendants have also not

raised any objection as regards the quantity or quality of the goods

or price payable in respect of the said goods which were delivered

by the Plaintiff. They have not responded to the Demand Notice

and not disputed the amount mentioned in the Statement of

Account. Having failed to raise the substantial or fair and

reasonable defence in respect of the claim of Rs.7,03,525.88, the

trial court was justified in securing interest of the Plaintiff in

directing the Defendant to pay 60% of outstanding dues of

Rs,7,03,525.88 as against the unpaid bills as per the books of

account.

12. Under the circumstances, the Petition has no merits and is

accordingly dismissed.

                                         (ANUJA PRABHUDESSAI, J.)




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