Disposed

Mohammed Arif Akbar H. Khatri v. M/S A.R. Enterprises and 2 Ors.

Bombay HC17 Aug 2012SJ/341/2010

Case brief

AI extract

What is this about?

This oral order disposed of a Summons for Judgment seeking decree in a summary suit based on construction work. The judge held the defendants' defence was moonshine, noted their admission of liability in a pending suit, and granted conditional leave to defend upon deposit of Rs. One Crore.

What did the court decide?

Defendants granted conditional leave to defend upon depositing Rs. One Crore; suit transferred to commercial causes.

Mohammed Arif Akbar H. Khatri Vs M/S A.R… — Contract and Commercial Disputes | Bombay HC (2012)

SJ No.341 of 2010

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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SUMMONS FOR JUDGMENT NO. 341 OF 2010 IN

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SUMMARY SUIT NO. 26 OF 2009

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Mohammed Arif Akbar Hussain

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… Plaintiff

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Versus

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M/s. A.R. Enterprises and Ors. … Defendants

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Mr. Ketan R. Parekh i/by M/s. K.R. Parekh & Co. for the plaintiff.

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Mr. Ram U. Singh for defendant no. 1.

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CORAM : R.D. DHANUKA,J. DATED : 17 AUGUST 2012

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ORAL ORDER :

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By this Summons for Judgment, the Plaintiff seeks that the judgment be entered against the defendant in the sum of Rs.1,29,00,383/- with interest and cost.

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The suit is based on the contract and also admission of liability in the suit bearing No. 2771 of 2006 filed by the defendant against Mr. Nilesh Tanna and others including the plaintiffs herein.

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According to the Plaintiff, defendants were introduced by Mr. Faizal Qureshi, son of defendant no. 2. The development agreement came to be executed between the defendants and Mr. Nilesh Tanna, M/s. Sai Developers and Bhavsar Construction Company. Under the said development agreement, the defendants

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SJ No.341 of 2010

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agreed to develope the property. According to plaintiff, after negotiations with the plaintiff, a quotation dated 28^th March, 2004 was issued by the plaintiff which was approved by the defendants. Work order came to be issued in favour of the plaintiff for carrying out the said work awarded to the defendants by the developers. According to Plaintiff, the defendants agreed to pay plaintiff @ Rs.786/- per sq. ft. for carrying out the said construction which was inclusive of material and labour. Various bills were raised by the plaintiff from time to time. On 17^th November, 2005, the plaintiff issued 3^rd RAB (Running Account Bill) showing the total built up area as 26692 Sq. ft. After giving credit of the amounts received, according to plaintiff, sum of Rs.1,29,00,383/- was due and payable by the defendants to the plaintiff.

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On 16^th September, 2008, plaintiff issued notice of demand to the defendants calling upon them to pay Rs.1,29,00,383/- with interest. The defendants did not give any reply to the said notice.

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The learned counsel for the plaintiff as well as defendants invited my attention to the plaint in Suit No. 2771 of 2006 filed by the defendants herein against Mr. Nilesh Tanna and others in which the plaintiff herein was impleaded as defendant no. 4. The defendants have prayed for the decree in the sum of Rs.4,68,53,400/- against the defendants therein excluding the plaintiff herein. The suit is pending.

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The defendants have filed affidavit in reply. The learned counsel for the defendants submit as under :

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SJ No.341 of 2010

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That there is no contract entered into between the plaintiff and defendants. The bills raised by the plaintiffs are disputed and are based on estimation and without any supporting proof. Reliance placed by the plaintiff on the averments made in Suit No. 2771 of 2006 filed by the defendants should not be permitted at this stage as the said suit is pending and alleged admissions, if any, in the said suit can not be considered in this summary suit.

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On the other the learned counsel for the plaintiff submits that :

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(i) The defendants never disputed the writing at Exh. A. All the running account bills were issued by the plaintiff based on the said writing arrived at between the parties. The defendants have made payment of first two RA bills without raising any dispute. The defendants have not disputed the receipt or contents of the third R A bill (Exh. A1 to the plaint).

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(ii) The Plaintiff is entitled to place reliance upon the admissions made by the defendants in the Suit (2771/06). It is submitted that the present summary suit is not filed only on the basis of such admission of liability in the said suit but is also filed on the basis of the contract.

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The record produced by both the parties indicate that the defendants at no point of time have disputed the writing at Exh. A or factum of receipt of the earlier running account bills including 3^rd R.A.B. The defendants have not given any reply to the legal notice. Mr. Singh, the learned counsel for the defendants produced copy of the plaint in Suit No. 2771 of 2006. I have perused the plaint

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SJ No.341 of 2010

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and annexures thereto. It is averred by the defendants in the said suit that the plaintiff herein had agreed to carry out the work at the rate of Rs.786/- per sq. ft. All the bills raised by the plaintiff from time to time, have been relied upon and annexed to the said suit by the defendants. The payment of Rs.78,81,597/- made by the defendants to the plaintiff also has been admitted in the said suit. In my opinion, therefore, there is no substance in the submission of the defendants that there was no agreement between plaintiff and defendants or that any of the bills raised by the plaintiff were disputed by the defendants, at any point of time earlier. From perusal of the plaint filed by the defendants in the said suit and also verification clause, it is clear that Mr. Raj Bakshi, defendant no. 2 who has filed affidavit in reply in the present suit has verified the said suit declaring that whatever was stated in Paragraph Nos. 1 to 21 of the said plaint was true to his knowledge. I inquired with the learned counsel for the defendants as to whether it is his case that the statements made by the defendants herein in the said suit were incorrect, the learned counsel could not agree that the statements made therein were false or incorrect. In my view, a party can rely upon the admission or acknowledgement of liability made by another even in the other proceedings.

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In my opinion, the defence raised by the defendants is not substantial and is moonshine. No triable issues are raised. I therefore, pass the following order :

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(a) The defendants are granted conditional leave to defend the suit on their depositing Rs. One Crore in this Court within twelve weeks from today. The defendants are permitted to file written statement within four weeks after such

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SJ No.341 of 2010

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deposit, if made by the defendants.

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(b) If the amount as directed is deposited by the defendants, the Prothonotary and Senior Master to invest the said amount in a fixed deposit of nationalized bank for the period of two years initially and for the like period after obtaining further orders from this Court.

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(c) In the event, defendants commit default in making the payment, the plaintiff would be at liberty to apply for further orders.

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(d) Suit is transferred to the list of commercial cause.

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(e) Summons for Judgment is accordingly disposed off.

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(f) There shall be no order as to costs.

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(R.D. DHANUKA,J.)

Mohammed Arif Akbar H. Khatri v. M/S A.R. Enterprises and 2 Ors.

Case brief

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Mohammed Arif Akbar H. Khatri v. M/S A.R. Enterprises and 2 Ors.

Case brief

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What did the court decide?

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Coram

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