Jolly Constructions vs Housing Society Ltd on 6 May, 2010

Bombay High Court

Jolly Constructions vs Housing Society Ltd on 6 May, 2010
Bench: 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,

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Jolly Constructions vs Housing Society Ltd on 6 May, 2010

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 the
defendants 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 the
plaintiffs. According to the plaintiffs, balance sum of Rs.22,51,670/- is payable to the plaintiffs by
the defendants pursuant to the statement which is prepared and signed by both the parties (vide
Exhibit-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, for
a sum of Rs. 20,51,670/-. Both the cheques were dishonoured for the reason insufficient fund and
thus, 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 have
suppressed true facts by conveniently annexing document, the copy of which is unfounded by the
plaintiffs to support the suit claim. According to the learned counsel for the defendants, as copy of
document is annexed as Exhibit-I to the affidavit in reply, the plaintiffs had already acknowledged
receiving cash amount of Rs.22,51,670/- on 17-2-2005 Therefore, as there full was and no final
question settlement.
of issuing cheques again for the same amounts which were allegedly due. Further more, the
plaintiffs, as a natural course of action, would have prosecuted the defendants if the cheques were
dishonoured. Therefore, it is contended that the suit claim is false and frivolous and the summons
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Jolly Constructions vs Housing Society Ltd on 6 May, 2010

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 of
authorities on the subject, stated the principles applicable to cases covered by Order 37, C.P.C. in the
form 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 the
plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave
to defend.
(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable
defence although not a positively good defence the plaintiff is not entitled to sign judgment and the
defendant 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 is
to say, although the affidavit does not positively and immediately make it clear that he had a
defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may
be able to establish a defence to the plaintiff s claim the plaintiff is not entitled to judgment and the
defendant is entitled to leave to defend but in such a case the Court may in its discretion impose
conditions 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 practically
moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not
entitled to leave to defend.
(e) igIf the defendant has no defence or the defence is illusory or sham or practically moonshine
then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the
plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or
otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the
defendant 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 the
present case is covered by category (c), as quoted above. Hence, I am inclined to pass the following
order:
ORDER
(a) The summons for judgment is rejected.
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Jolly Constructions vs Housing Society Ltd on 6 May, 2010

(b) Conditional leave to defend is granted.

The defendants shall file their written statement within eight weeks. Hearing of the suit is expedited
and 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 respective
contentions.
Sd/(A.P. BHANGALE, J.)

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