Bombay High Court
Jay Air Cooling Private Limited ... vs Accurate Engineering Thr Its ... on 19 October, 2023
Bench: Amit Borkar
2023:BHC-AS:31408
16-wp12888-2023 with IA16358-2023.doc
VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12888 OF 2023
Digitally
Jay Air Cooling Private Limited & Anr. ... Petitioners
signed by
VAIBHAV
VAIBHAV RAMESH
RAMESH JADHAV
JADHAV Date:
2023.10.20
V/s.
10:21:53
+0530
Accurate Engineering Thr. Its Partner
Shamsher Mehmood Khan & Ors. ... Respondents
WITH
INTERIM APPLICATION NO.16358 OF 2023
IN
WRIT PETITION NO.12888 OF 2023
Jay Air Cooling Private Limited & Anr. ... Applicants
V/s.
Accurate Engineering Thr. Its Partner
Shamsher Mehmood Khan & Ors. ... Respondents
Mr. Anil M. Dubey i/by Mr. Sunil Dubey for the
applicants/petitioners..
Mr. Anil S. Kharatmol for respondent No.1.
CORAM : AMIT BORKAR, J.
DATED : OCTOBER 19, 2023
P.C.:
1. The challenge in this petition is to the order passed by the
Trial Court in Summary Suit granting leave to defend to the
petitioners subject to deposit of Rs.14,56,352/- within thirty days.
2. The plaintiffs filed summary suit contending that they are
doing some contracting/subcontracting work of installation and
16-wp12888-2023 with IA16358-2023.doc
maintenance of VRV Cooling and VRF Cooling for Air Conditioners,
Windows. The principal contractor allotted sub contract work to
the plaintiff at various sites. The partners of the plaintiff issued
invoices in respect of completion of work as per purchase order of
defendant No.1. The details of work are mentioned in Clause 6 of
the plaint. Despite completion of work, defendant No.1 refused to
pay the amount of suit claim.
3. The petitioners contested the suit denying contents of the
plaint. According to the defendant No.1, suit claim was already
paid as and by way of advance which was, thereafter, adjusted
against the bill submitted by the plaintiff. Moreover, it is stated
that the plaintiff supplied sub-standard material.
4. On perusal of the material on record, it appears that there is
no serious dispute about completion of work by the plaintiff.
However, as per the defendants the amount of suit claim was
already paid. No material is produced on record by the defendants
to show that amount of suit claim was already paid.
5. Learned advocate for the petitioners relying on judgment of
the Apex Court in M/s Raptakos Brett And Co. Ltd. vs. Ganesh
Property reported in (1998) Supp. 1 S.C.R. 486, submitted that the
plaintiff is essentially enforcing right conferred by the Partnership
Act and contract entered into between the parties and in absence
of registration of partnership, Sub-section (2) of section 69 of the
Partnership Act, 1932, bars institution of suit for recovery of
amount.
6. On perusal of reply filed to summons-for-judgment and the
16-wp12888-2023 with IA16358-2023.doc
submissions recorded by the Trial Court, it appears that said
ground was not raised before the Trial Court. Whether the plaintiff
firm is registered or not is essentially a question of fact. Without
such ground raised before the Trial Court, it is not open for the
petitioner to raise such ground for first time in the present
petition. Therefore, no adjudication was made by the Trial Court
on the said point.
7. Considering the reasons assigned by the Trial Court, in my
opinion, the grant of leave on payment of suit claim cannot be
faulted.
8. The writ petition is dismissed. No costs.
9. In view of dismissal of the writ petition, interim application
does not survive and the same stands disposed of as infructuous.
10. Time to deposit of amount is extended for period of thirty
days from today.
(AMIT BORKAR, J.)
