1 nms-3659-09 in ss-5414-99 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3659 OF 2009 IN SUMMARY SUIT NO.5414 OF 2009 M/s. Modern Cargo Services Pvt Ltd. ....Plaintiff V/s. M/s. Tavoy Apparels Ltd. ....Defendant Shri A.M.Vernekar for the Applicant/Plaintiff Mr. Pratik Majmudar a/w Mr. Nilesh Gala i/b M.P.Savla & Co. for the Defendant CORAM : R.M. SAVANT, J. DATE : 10TH MARCH, 2011. P.C. :- 1 The above Notice of Motion has been filed by the Plaintiff to pronounce Judgment and pass a decree on admission in favour of the Plaintiff and against the Defendant in the sum of Rs.3,71,943/-. By way of prayer clause (b), the Plaintiff also prays that the decree on admission that may be passed in favour of the Plaintiff vide prayer clause (a) stands satisfied against the amount of Rs.3,75,000/- deposited by the Defendant and withdrawn by the Plaintiff pursuant to the orders dated 24-6-1998 in Company Petition No.729 of 1997 and the order dated 22-9-1998 in Appeal No.905 of 1998. 2 The Plaintiff also seeks the consequential relief that the 2 nms-3659-09 in ss-5414-99 Prothontary & Senior Master to cancel and return to the Plaintiff the Bank guarantee dated 22-1-2009 of the Union Bank of India, JVPD Scheme, Vile Parle (W), Mumbai. The Plaintiff is carrying on business of shipping and air cargo. The claim in the above Suit is towards clearing and forwarding charges the services for which were rendered by the Plaintiff to the Defendant in respect of which invoices were raised by the Plaintiff which was not paid by the Defendant. The claim in the above suit is for a sum of Rs.7,05,772/- as per the particulars of claim Exhibit-R along with interest @21% p.a. on the principal amount of Rs.4,44,087/-. Prior to the filing of the above suit, the Plaintiff had issued notice dated 2-6-1997 to the Defendant under Section 434 of the Companies Act, 1956, calling upon the Defendant to pay an amount of Rs.4,44,087/- with interest @ 21% p.a. from 21-5-1997. The amount of interest claimed was Rs.25,905/-. On receipt o the said notice, the Defendant by its letter dated 16-7-1997, mentioned the actual amount due from it and has also shown how the said amount has been arrived at. According to the Defendant, an amount of Rs. 3,71,942/- was due from it to the Plaintiff. The Notice dated 2-6-1997 and the letter dated 16-7-1997 of the Defendant are annexed to the Plaint as Exhibit I & J respectively. Thereafter, Company Petition No.729 of 1997 came to be filed by the Plaintiff invoking Section 434 of the Companies Act. In the said Company Petition an Affidavit in reply dated 23-6-1998 came to be filed on behalf of the Defendant wherein in paragraph 2 the Defendant has mentioned that an amount of Rs.3,71,943/- would be payable by the Company to the Petitioner that is the Plaintiff herein. The relevant extract from paragraph 2 of the said affidavit is reproduced herein under: 3 nms-3659-09 in ss-5414-99 “I say that after deducting the said sum of Rs.36,417/- (Rupees Thirty Six Thousand Four Hundred and Seventeen) the balance of sum of Rs.3,71,943/- (Rupees Three Lacs Seventy One Thousand Nine Hundred and Forty Three only) would be payable by the Company to the Petitioner” The affidavit in reply to the Summons for Judgment on behalf of the Defendant came to be filed on 13-10-2000 wherein in paragraph 9 the Defendant has mentioned that an amount of Rs.3,71,943/- would be payable by the Company to the Petitioner that is the Plaintiff herein. The relevant extract of the said affidavit is reproduced herein under: “ I say that as stated above, the balance amount due was Rs.3,71,943/- (Rupees Three lacs Seventy One Thousand Nine Hundred and Forty Three only) against which the Plaintiff has received Rs.3,75,000/- (Rupees Three Lacs Seventy Five Thousand Only) from the Defendant in the Company Petition as stated above”. 3 In the above Company Petition an order came to be passed on 24-6-1998, where a Learned Single Judge of this Court had directed the Defendant to deposit an amount of Rs.3,75,000/- as there was no dispute between the parties in respect of the said amount. The said amount was to be deposited by the Defendant within a period of three months from th date of the said order and the Plaintiff was granted liberty to withdraw the said amount, if so deposited by the Defendant. A copy of the order passed by the Learned Single Judge is annexed to the Plaint as Exhibit-N. 4 nms-3659-09 in ss-5414-99 4 Thereafter, it appears that the Defendant did not deposit the said amount but sought extension of time and ultimately filed an Appeal No.904 of 1998. The said Appeal was disposed of by an order dated 22-9-1998. The order records that the Learned Counsel for the Appellants i.e. the Defendant herein submitted that the amount would be deposited on or before 27-10-1998 ,as ordered by the Learned Single Judge. The order further records the submission on behalf of the Appellants therein that the Respondent i.e. Plaintiff herein may not be permitted to withdraw the said amount as there is a bonafide dispute with regard to the remainder of the amount. The said order permitted the Respondent i.e Plaintiff herein to withdraw the same on furnishing security to the satisfaction of the Prothonotary & Senior Master. The statement made on behalf of the Plaintiff herein i.e for the rest of the amount it would adopt appropriate proceedings was also recorded. 5 Thereafter, the said amount of Rs.3,75,000/- was withdrawn by the Plaintiff by furnishing bank guarantee which has been renewed from time to time. Thereafter, the Plaintiff have filed the instant suit for the amounts as claimed which includes the amount of Rs.3,75,000/- which has been withdrawn. 6 The Learned Counsel for the Plaintiff in support of the above prayer in the Notice of Motion seeks to rely upon the letter dated 16-71997, the averment in the Affidavit in reply filed in Company petition No.729 of 5 nms-3659-09 in ss-5414-99 1997 by the Defendant herein as extracted above and paragraph 9 of the Affidavit in reply to the Summons for Judgment as extracted herein above. The orders passed by the Learned Single Judge as regards the amount of Rs.3,75,000/- being an undisputed amount which has been confirmed by the Learned Division Bench in Appeal. The Learned Counsel for the Plaintiff also relies upon the Written Statement filed by the Defendants in the above Suit wherein they have stated that the above suit is not maintainable as the Plaintiff has not given credit for the amount withdrawn in the present suit. 7 Per contra, it is submitted on behalf of the Defendant that in fact the suit as filed claiming an amount of Rs.7,05,772/- is not maintainable as liberty was granted to the Plaintiff to only claim the balance of the amount remaining after the deducting the sum of Rs. 3,75,000/- . It is further sought to be contended that there is no admission in the Written Statement or in the Affidavit in reply to the Summons for Judgment. 8 Having heard the Learned Counsel for the parties in my view, in the light of the admission in the Affidavit and the Written Statement which admission can also be said to b e recorded in the order passed by the Learned Single Judge as well as the Division Bench of this Court, in my view, the Plaintiff would be entitled to a decree on admission in terms of prayer clauses (a) & (b) of the instant Notice of Motion. The contention of the Learned Counsel for the Defendant, in the teeth of the said 6 nms-3659-09 in ss-5414-99 admission in the aforesaid documents can only said to be hyper technical. The said documents and the orders passed by this Court unmistakably point out that the Defendant has admitted that the Plaintiff is entitled to the said amount of Rs.3,71,942/-. In fact the Learned Counsel for the Defendant is not right in contending that there is no admission in the affidavit in reply filed to the Summons for Judgment or the Written Statement. In so far as contention of the Learned Counsel for the Defendant, that the liberty was granted by the Division Bench of this Court only for the balance amount, and hence the present suit for the entire claim is not maintainable. It is required to be noted that in the order passed by the Division bench dated 22-9-1998 the statement of the Learned Counsel for the Respondent therein i.e. the Plaintiff herein was only recorded by the Court, and therefore it would not be correct to say that the Court had granted liberty to file a suit only for the balance amount. 9 The Notice of Motion is therefore, allowed and is made absolute in terms of prayer clauses (a) & (b). Since the amount was deposited pursuant to the order passed in Company Petition No.729 of 1997, has been withdrawn by the Plaintiff, the said amount would be appropriated towards the amount claimed by the Plaintiff in the above Suit. 10 In the light of the aforesaid, the Plaintiff would resultantly be entitled to an order in terms of prayer clause (c) also. (R.M.Savant, J.)