1 sj116.10.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 116 OF 2010 IN SUMMARY SUIT NO. 152 OF 2009 Hatim Glazing and Cladding Private Ltd. a Company registered under the Companies Act, 1956 having Registered Office at 64/65, Husaini Lakda Bazar, 242, Ballasis Road, Mumbai Central (East) Mumbai- 400 008. ......Plaintiffs. Vs. Cheran Constructions Ltd. also a Company registered under the Companies Act, 1956 having Registered Office at 78, Government Arts College Road, Charan Road, Charan Towers, Coimbatore – 641 018. ......Defendants. Mr. R.J. Cama a/w Ms. Sapna Rachure i/by Mr. T.N. Tripathi & Co. for the Plaintiffs. Mr. F. Sayyed i/by M/s. Manilal Kher Ambalal & Co. for the Defendants. CORAM :- ANOOP V. MOHTA, J. JUDGMENT RESERVED ON :- 2 SEPTEMBER 2011 JUDGMENT PRONOUNCED ON :- 29 SEPTEMBER 2011. 2 sj116.10.sxw ssm JUDGMENT:- The Plaintiffs have filed the Summary Suit for recovery of unpaid amount of `42,12,718/- as the Defendants failed to make the payments though goods were supplied and amounts were due and payable and also claimed the interest @ 12% p.a. from the date of filing of the Suit, after obtaining leave under Clause XII of the Letters Patent on 9 January 2009. 2 The Defendants, therefore, has firstly contended to revoke the leave so granted. 3 The Plaintiffs have also raised objection to the filing of belated Vakalatnama of the Defendants. 4 The Plaintiffs, who are carrying on the business at Mumbai, on offer/invitation agreed to supply the goods at Coimbatore from Mumbai. Based upon the agreement, from time to time goods were supplied and the work of movable was carried out at Coimbatore, therefore, to say that there is no cause of action at all in Mumbai, is unacceptable. The payments were made regularly by the Defendants 3 sj116.10.sxw ssm through cheques payable, which were deposited in Mumbai. There was no agreement of specific jurisdiction of Court. The Suit, therefore, so filed in Mumbai as part of cause of action arose in Mumbai, is maintainable. 5 Leave was granted rightly in the facts and circumstance of the case. 6 This Court in SICOM Limited Vs. Harjindersingh & Ors. 1 while considering the similar contention, rejected the application to revoke the leave already granted, also on the ground that the dues of the Plaintiffs were due and payable by the Defendants to the Plaintiffs at Mumbai. The Defendants offer was accepted from Mumbai by the Plaintiffs. The goods were supplied from time to time from Mumbai. There is no substance in the contention that the agreement was entered into only at Coimbatore, as the work was to be performed at Coimbatore. In the present Suit the recovery of the amount for the goods supplied and the cause of action also arose in Mumbai therefore, the Suit so filed is maintainable. (A.B.C. Laminart Private Limited Vs. A.P. Agencies, Salem 2 ). 1 2004(5) Bom. C.R. 304 2 1989 (2) SCC 163 4 sj116.10.sxw ssm 7 The Plaintiffs apart from the averments, also placed on record various supporting documents and correspondences. By letter dated 17 May 2005, the Defendants, referring to the meeting held on 6 May 2005 and the fax letters dated 11 May 2005 and 15 May 2005, sent by the Defendants from Coimbatore to Mumbai awarded the contract of Elevandon Cladding work of Cheran Plaza ‘A’ Commercial Block of Coimbatore, for supply and erection work of spider fittings and glazing work, on certain terms and conditions. The copy was also forwarded at Mumbai. Based upon this, various goods were supplied and the work was accordingly completed at the given site. The supporting RA Bills are on record and specially dated 27 February 2006. The Defendants from time to time made the payment up to 4 RA Bills and as balance was not paid referring to 5th RA Bill, the claim was made. The said bill was received by the Plaintiffs through its Sales Project Manager on 1st March 2006. RA Bill No. 6 dated 12 May 2006 the detailed description was also forwarded and combined bill was sent for RA Bill Nos. 5 and 6 and thereby pointed out that amount of `38,68,167/- is due and payable. The same was also duly acknowledged on 13 May 2006. 5 sj116.10.sxw ssm 8 The Plaintiffs by another letter dated 4 April 2006 referring to these Bills was also received and acknowledged by the Defendants, the Plaintiffs have pointed out that because of non payment, it would be difficult for them to complete the project/work. 9 By another letter dated 30 November 2007, the Plaintiffs again intended/demanded the balance payment referring to balance amount of `38,68,167/-. The acknowledged copy of Bills dated 13 May 2006 was again forwarded. Therefore, ultimately the legal notice dated 12 February 2008 was sent by the Plaintiffs to the Defendants and thereby claimed the total amount of `42,12,718/- which was due and payable on the basis of both invoice Nos. 5 and 6, dated 27 February 2006 and 12 May 2006 respectively. There was no denial at any point of time so far as this part is concerned. 10 In affidavit in reply, however, a defence is raised that the Plaintiffs, as not completed the work, the Defendants compelled to work it done through the third agency and thereby they incurred expenditure of `3 lacs. This defence so raised in para 7 of the reply is itself shows that the Defendants have acknowledged the liability of the amount so claimed. The dispute is only with regard to `3 lacs 6 sj116.10.sxw ssm expenses as suffered to complete the unfinished work. However, the correspondences so referred above show that there is no serious denial at the relevant time except the advocate letter dated 15 November 2008 and by the defence to the fact of the delivery of the goods from time to time to the extent of `42,12,718/- and also the fact that the defence in respect of the receipt of the goods, not made the payment at and on due dates. 11 Though the defence was raised that the entire amount is paid, no supporting documents are placed on record to justify their belated stand/defence so raised. The defence to the advocate notice/demand notice dated 12 February 2008 resisted the same by reply dated 15 November 2008. 12 It is relevant to note that except `3 lacs so referred and the simple denial to the amount so raised by the Plaintiffs, in my view, is not sufficient to accept the defence so raised to reject the Plaintiffs case as prayed in Summons for Judgment. 7 sj116.10.sxw ssm 13 The Apex Court has expressly declared in A.B.C.Laminart Private Limited (Supra), referring to Section 20 of the CPC and Section 23 and 28 of the Contract Act. The issue with regard to the ouster of jurisdiction of Civil Court, it depends on facts and circumstances of each case. “It depends on the situs of the contract and the cause of action arising through connecting factors”. “Ordinarily, acceptances of an offer and its intimation result in a contract and hence a suit can be filed in a court within whose jurisdiction the acceptance was communicated”. “In the matter of a contract there may arise causes of action of various kinds.” “The performance of a contract is part of cause of action and a Suit in respect of the breach can always be filed at the place where the contract should have been performed or its performance should have been completed. Part of cause of action arises where money is expressly or impliedly payable under a contract”. In a case of repudiation of a contract, the place where repudiation is received is the place where the Suit would lie. 14 In view of above, in the present case, the orders were placed in Mumbai. The bills were raised in Mumbai. The goods were supplied from Mumbai. The supply of goods was completed/concluded in 8 sj116.10.sxw ssm Mumbai. The demands were made in Mumbai. The amounts under the invoices payable in Mumbai. The part payments are also made in Mumbai. The Plaintiffs are carrying on the business in Mumbai. Therefore, in the facts and circumstances, this Court has jurisdiction to decide the matter. 15 It is clear from the averments and the documents placed on record that the Plaintiffs raised two bills dated 27 February 2006 for `76,94,247/- and 12 May 2006 for `38,68,167/- amounting to `1,15,62,414/-. The Defendants have made part payment of `73,49,696/- towards bill dated 27 February 2006, in Mumbai, leaving a balance of `3,44,551/-. Thus total amount of `42,12,718/- still due and payable by the Defendants. There is no denial to this liability except the allegations are made that the Plaintiffs failed to complete the work and they are got it done through the third agency and for that they have incurred expenses of `3 lacs. There is no material placed on record even to support that. Mere allegations are not sufficient in view of the written documents on record. In view of this, in my view, the defence so raised is sham, illusory and bogus. There is no triable issue involved in the matter. The Plaintiffs are entitled for the reliefs prayed in the Summons for Judgment. 9 sj116.10.sxw ssm 16 So far as the interest rate of 12 % p.a. from the date of filing of the Suit as raised is within the frame work of law. The claim is based upon the invoices-principal amount. Though by a notice 24% p.a. interest was claimed in the Suit, it is restricted to 12% p.a. on the principal amount. 17 Resultantly the Summons for Judgment is allowed and the same is disposed of. Decree be drawn accordingly. There shall be no order as to costs. (ANOOP V. MOHTA, J.)