Allowed

Mr. Virendra Ahuja v. M/S Sunny Super Sounds Pvt. Ltd.

Bombay HC8 Sept 2008SJ/327/2007

Case brief

AI extract

What is this about?

The High Court of Bombay admitted a summons for judgment in a suit for hire of wooden planks. The court decreed the claim for hire charges at Rs.36,16,721/- after adjusting the defendants' admitted claims but dismissed their new defence regarding the hire rate. The remaining claim was reserved for trial.

What did the court decide?

Suit decreed for Rs.36,16,721/- with interest at 12% per annum from date of suit.

Mr. Virendra Ahuja Vs M/S Sunny Super Sounds… — Contract and Commercial Disputes | Bombay HC (2008)

¶1

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

 ORDINARY ORIGINAL CIVIL JURISDICTION

¶3

 SUMMONS FOR JUDGMENT NO. 327 OF 2007

¶4

IN

¶5

 SUMMARY SUIT NO. 1262 OF 2005

¶6

 Virendra Ahuja .. Plaintiff

¶7

V/s

¶8

 M/s Sunny Super Sounds Pvt. Ltd. .. Defendants

¶9

 Mr.H.N. Thakore i/b Thakore Jariwala & Associates for
 the Plaintiff.

¶10

 Mr.H. Mehta i/b Malvi Ranchoddas & Co. for the
 Defendants.

¶11

 CORAM : S.J, VAZIFDAR, J.

¶12

 DATE : 8TH SEPTEMBER 2008

¶13

 P.C.:

¶14

 1. The suit is filed to recover a sum of
 Rs.76,58,171/- together with interest at 18% per annum
 from the date of the filing of the suit till payment.

¶15

 2. The Plaintiff had admittedly supplied to the
 Defendants on hire wooden planks for their sets at
 various locations. Some of the wooden planks were
 returned and some were not. Further, some of the

¶16

 planks were returned in a damaged condition.

¶17

 3. The Plaintiff raised bills from time to time

¶18

 - 2 -

¶19

 claiming the hire charges, damages on account of the
 Defendants having failed to return certain wooden
 planks as well as for having returned certain wooden
 planks in a damaged condition.

¶20

 4. The summary suit is maintainable only in
 respect of the claim for hire charges. It is not
 maintainable in respect of the claim for damages on
 account of the Defendants having failed to return the
 wooden planks and also on account of the Defendants
 having returned certain wooden planks in a damaged
 condition.

¶21

 5. There was no dispute to the bills which had
 been admittedly raised and forwarded to the Defendants
 from time to time. There was no reply to the
 Plaintiff’s advocate’s notice dated 30th December 2004
 demanding payment despite the suit having been filed
 on 1st April 2005. If the claim was false, surely the
 Defendants would have replied to the same.

¶22

 . The claim for hire charges is thus

¶23

 established. The wooden planks, I am satisfied, were
 supplied on the terms and conditions contained in and
 evidenced by the said bills.

¶24

 6. However, from the claim in suit of

¶25

 - 3 -

¶26

 Rs.76,58,171/- must be deducted an amount of
 Rs.39,20,000/- and Rs.1,21,450/- aggregating to
 Rs.40,41,450/-. The amount of Rs.39,20,000/- is

¶27

 claimed on account of the Defendants having allegedly
 not returned the wooden planks. The amount of
 Rs.1,21,450/- is claimed on account of the Defendants
 having allegedly returned certain wooden planks in a
 damaged condition.

¶28

 7. Thus, the hire charges claimed by the
 Plaintiff come to Rs.36,16,721/-.

¶29

 8. Mr.Mehta submitted that the hire charges were
 agreed upon at Rs.6/- per week per plank and not
 Rs.9/- per week per plank as claimed by the Plaintiff.
 This contention was raised for the first time in the
 present proceedings. There was no protest to any of
 the bills which expressly claimed hire charges at
 Rs.9/- per week per plank. This is not even alleged
 in the reply. I am therefore not inclined to accept
 this case. Indeed, even assuming that the Defendants’
 case is correct, the admitted claim at the rate of
 Rs.6/- per week per plank would be Rs.24,16,721/-.

¶30

 9. It was then submitted that the computation in
 the bills was incorrect. This contention was raised
 on the basis of an averment in the plaint that the

¶31

 - 4 -

¶32

 bills were raised after the goods were returned, but
 that the dates specified in the bills are even
 subsequent to the bills. This contention is without
 any substance. Firstly, it must be noted that this
 contention has not been raised in the affidavit in
 reply. What is contended in paragraph 10 of the
 affidavit in reply is as follows:-

¶33

 "10. With reference to paragraph 4 of the
 Plaint, I deny that the Defendant has duly
 signed or accepted the Bills raised by the
 Plaintiff. I say that the Bills raised by
the Plaintiff are false and the Plaintiff has
sought to add the damage charges in the said
Bills. It was never agreed between the
parties that the Defendant would be liable to

¶34

pay charges for damaged as well as burnt
planks as added in the said Bills. It was
 always the responsibility of the Owners to
 get the planks insured against the theft,

¶35

 fire or any other natural calamity. The
 Defendant is only liable for the hiring
 charges of the planks for the period they
 were hired. I say that the said Bills were
 raised after the accidental fire took place
 on or about 1st May 2002. The summary of the
 Bills is false and even does not match with

¶36

 - 5 -

¶37

 the statements issued by the Plaintiff to the
 Defendant." (emphasis supplied)

¶38

 The above paragraph read as a whole makes it clear
 that the objection was to the Plaintiff having
 included in the bills the claim for damages. There
 was no objection as to the rate being wrongly claimed
 at Rs.9/- per week per wooden plank instead of Rs.6/-
 per week per wooden plank.

¶39

 10. In the circumstances, the Summons for

¶40

 Judgment is made absolute and the suit is decreed in
 the sum of Rs.36,16,721/- with interest thereon at the
 rate of 12% per annum from the date of the suit till
 payment and/or realisation.

¶41

 11. The Defendants shall be entitled to

¶42

 unconditional leave to defend the suit in respect of
 the rest of the claim.

¶43

 . The suit is transferred to the list of

¶44

 commercial causes.

¶45

 . The Defendants to file their written

¶46

 statement within four weeks from today.

¶47

 . Discovery and Inspection to be completed

¶48

 - 6 -

¶49

 within six weeks thereafter.

¶50

 . Summons for Judgment stands disposed of
 accordingly.

Mr. Virendra Ahuja v. M/S Sunny Super Sounds Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

Mr. Virendra Ahuja v. M/S Sunny Super Sounds Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Coram

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