jolly constructions vs housing society ltd on 6 may, 2010

Bombay High CourtJolly Constructions vs Housing Society Ltd on 6 May, 2010Bench: A.P. Bhangale 1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORIGINAL SIDE SUMMONS FOR JUDGMENT NO.48 OF 2009

IN SUMMARY SUIT NO.865 OF 2006

Jolly Constructions, a registered partnership firm having its registered office at A-401, Divya Apartments, Manipada Road,

Opp: Vidyanagari Post, Kalina, Mumbai-400 098. ig .... Plaintiffs

- Versus -

Stephan Bernard Construction Co., a proprietary firm of Mr. Stephan Bernard having its office at Sonal Co-op.

Housing Society Ltd., Plot No.113, Flat No.202,

Jolly Constructions vs Housing Society Ltd on 6 May, 2010

Indian Kanoon - http://indiankanoon.org/doc/1708386/ 1

Sector-1, Near I.E.S. Charkop, Kandivali (West), Mumbai-400 067. .... Defendants

S/Shri Pradeep Kadam a/w T.S. Patwardhan for the Plaintiffs.

Ms A.S. Malwankar for the Defendants.

CORAM: A.P. BHANGALE, J.

DATED: MAY 06, 2010 ORAL JUDGMENT:

1. Heard submission at the bar. Perused the affidavits on the record.

2. The suit is filed by a registered partnership firm dealing in construction as sub-contractor.According to the plaintiffs, the defendants had invited offers for construction of project Royal Palms(I) Private Limited to construct Mastermind II & III projects at Goregaon (East), Mumbai. As thedefendants National were Buildings awarded contract Construction from Corporation M/s.

Limited and also from Royal Palms, a letter dated 9-4-2004 was sent by the defendants to theplaintiffs. According to the plaintiffs, balance sum of Rs.22,51,670/- is payable to the plaintiffs bythe defendants pursuant to the statement which is prepared and signed by both the parties (videExhibit-B to the plaint). It is further contended that two cheques were issued by the defendants i.e.,cheque bearing No.032166 for a sum of Rs.2,00,000/- and cheque No.005432, dated 5-4-2005, fora sum of Rs. 20,51,670/-. Both the cheques were dishonoured for the reason insufficient fund andthus, according to the plaintiffs, the suit was instituted to recover the liquidated sum.

3. The defendants have opposed the claim of the plaintiffs on the ground that the plaintiffs havesuppressed true facts by conveniently annexing document, the copy of which is unfounded by theplaintiffs to support the suit claim. According to the learned counsel for the defendants, as copy ofdocument is annexed as Exhibit-I to the affidavit in reply, the plaintiffs had already acknowledgedreceiving cash amount of Rs.22,51,670/- on 17-2-2005 Therefore, as there full was and no finalquestion settlement.

of issuing cheques again for the same amounts which were allegedly due. Further more, theplaintiffs, as a natural course of action, would have prosecuted the defendants if the cheques weredishonoured. Therefore, it is contended that the suit claim is false and frivolous and the summons



for judgment ought to be dismissed by granting unconditional leave to defend the suit.

4. The legal position in this regard is well-settled by the decision of the Supreme Court in M/s.Mechalec Engineers & Manufacturers v. M/s. Basic Equipment Corporation {AIR 1977 SC 577}wherein, in para 8, it has laid down the following principles:

8. In Sm. Kiranmoyee Dassi v.

Dr. J. Chatterjee, (1945) 49 Cal WN 246 at p.253, Das, J., after a comprehensive review ofauthorities on the subject, stated the principles applicable to cases covered by Order 37, C.P.C. in theform of the following propositions (at p.253):

(a) If the defendant satisfies the Court that he has a good defence to the claim on its merits theplaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leaveto defend.

(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonabledefence although not a positively good defence the plaintiff is not entitled to sign judgment and thedefendant is entitled to unconditional leave to defend.

(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that isto say, although the affidavit does not positively and immediately make it clear that he had adefence, yet, shows such a state of facts as leads to the inference that at the trial of the action he maybe able to establish a defence to the plaintiff s claim the plaintiff is not entitled to judgment and thedefendant is entitled to leave to defend but in such a case the Court may in its discretion imposeconditions as to the time or mode of trial but not as to payment into Court or furnishing security.

(d) If the defendant has no defence or the defence set up is illusory or sham or practicallymoonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is notentitled to leave to defend.

(e) igIf the defendant has no defence or the defence is illusory or sham or practically moonshinethen although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect theplaintiff by only allowing the defence to proceed if the amount claimed is paid into Court orotherwise secured and give leave to the defendant on such condition, and thereby show mercy to thedefendant by enabling him to try to prove a defence.

5. Applying the said principles to the facts and circumstances of the present case, the dispute in thepresent case is covered by category (c), as quoted above. Hence, I am inclined to pass the followingorder:

O R D E R

(a) The summons for judgment is rejected.



(b) Conditional leave to defend is granted.

The defendants shall file their written statement within eight weeks. Hearing of the suit is expeditedand shall be disposed of within eight weeks after framing of the issues.

(c) Liberty to the parties to apply for appointment evidence.

ig of Commissioner to record

(d) The parties to produce the original documents relied upon by them in support of their respectivecontentions.

Sd/-

(A.P. BHANGALE, J.)




jolly constructions vs housing society ltd on 6 may, 2010

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