Professional Documents
Culture Documents
Registered on : 21.04.2010
Decided on : 23.10.2018
Duration : 08 06 02
Y M D
EXHIBIT
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO. 3614 OF 2010
(HIGH COURT SUMMARY SUIT NO.1151 OF 2010)
Chetan Sanena Proprietor of M/s.
Element Design Executors, having office
at 25/252, Element House, Ekta Nagar,
Kandivali (West), Mumbai 400067. .....Plaintiff
V/s.
1. M/s.Inter X, a partnership firm, having
their principal place of business at Shop
No.4, C/o. Jet Motors, Asalpha Link
Road, Ghatkopar (West), Mumbai 400084
and also having adress at 12, 3rd floor,
Mahavir Building, K.D.Road, Vile Parle
(West), Mumbai 400056.
2. Kamlesh Ganatra
3. Vishal Ganatra,
Both No.2 and 3 of Mumbai, Indian
Inhabitants and partners of Defendant
No.1, having their business at Shop no.
4, C/o. Jet Motors, Asalpha Link
Road, Ghatkopar (West), Mumbai 400
084 and also having address at 12, 3rd
Floor, Mahavir Building, K.D.Road, Vile
Parle (West), Mumbai 400056. ....Defendants
Sum.S.No. 3614/10 Judgment 2
CORAM :HIS HONOUR JUDGE
SHRI. M.M.UMAR
(C. R. No.: 28)
DATED :23/10/2018.
Advocate Mr.Kalpesh Joshi for the plaintiff
Advocate Mr.Dilip Shah for the defendants.
JUDGMENT
1. Plaintiff has filed this summary suit under order 37 of the code
of Civil Procedure for recovery of an amount of Rs.9,16,072.80ps.
alongwith further interest at the rate of 24% p.a. on the principal sum
of Rs.7,63,394/ from the date of filing of the suit till its realization.
2. The facts of the case can be briefly stated as under:
It is the case of plaintiff that the plaintiff is the proprietory
concern and is engaged in the business of Interior Contracting work.
The defendant no.1 is a partnership firm, the defendant no.2 and 3 are
its partners and the plaintiff carried out various work of Civil and
interior fit outs work for them. It is contended that in the month of
December 2008, the defendants through one Payal Ganatra, the
representative of defendant no.1 Firm, approached to the plaintiff for
the purpose of carrying out interior fit out work for their client
M/s.Shreyance Motors Ltd., for their showroom/office at Worli and
more particularly Civil work demolition, false ceiling, flooring, dry wall
partitions, skirting, internal doors/storage/loose
furniture/windows/glazing, painting and polishing external and
internal signage inclusive of graphic design, paneling, electric fittings
etc. It is contended that pursuant to the said Payal Ganatra, defendants
issued a letter of intent by her email dated 25/12/2007 setting out the
Sum.S.No. 3614/10 Judgment 3
details terms and conditions including the requirements specification of
the said work. The plaintiff accepted the terms of said work and
forwarded a signed copy of the said letter of intent to the defendant on
31/12/2007, as a token of its acceptance and as per the said letter of
intent the plaintiff duly completed the said work on or before
28/3/2008. The plaintiff issued a bill of Rs.31,40,847.61ps. as per the
bill format provided in the clause no.7 of the letter of intent and it was
forwarded to the Architect and defendant no.1 Firm.
3. It is contended that though the value of the contract work was
Rs.24,00,000/ only as per the term of letter of intent, but there was a
provision for carrying out further work which are termed as extra items
wherever required in the said work subject to confirmation from the
said architect. It is contended that under the instruction and with the
confirmation from the said architect the plaintiff carried out further
work on the said site to the tune of Rs.6,40,847/ and said architect
issued a letter dated 15/5/2008 saying that the said work has been
carried out by the plaintiff to the tune of Rs.31,40,847/. It is submitted
that the defendant had made payment of Rs.19,97,200/ to the plaintiff,
leaving balance of Rs.11,43,647/. The plaintiff demanded the said
balance amount, from defendant by letter dated 28/8/2008 but the
defendants have failed and neglected to make the payment. Thereafter,
the plaintiff also issued a letter dated 1/11/2008, and called upon to
the defendants to clear the outstanding dues, but they failed to comply
the same. Thereafter, on the request of the client the plaintiff made the
adjustment of Rs.3,80,000/ out of the security deposit and now an
amount of Rs.7,63,394/ is due against the defendants. Consequently,
the plaintiff has filed present suit.
Sum.S.No. 3614/10 Judgment 4
4. Upon the service of Writ of Summons, the defendants gave their
appearance. Thereafter, the plaintiff took out Summons for Judgment.
The defendant sought the leave to defend and as per order dated
22/11/2011 in Summons for Judgment no.272/2010 the Hon'ble High
Court was pleased to grant the unconditional leave to the defendant to
defend the suit.
5. The defendant has resisted the suit claim by filing his Written
Statement at Exhibit 2 on record. They have categorically denied the
contention of the plaintiff. It is contended that the said Payal Ganatra
could not have approached to the defendant in December 2008,
because she died in April 2008. It is contended that the contract was
issued in the name of defendant no.1 firm and therefore, if a sub
contract is given to the plaintiff, the contractor will definitely retain its
profile and if any amount is due under the bill is to be paid to the sub
contractor, why would main contractor work? It is submitted that no
amount is due against the defendant and the claim of plaintiff is totally
false. It is contended that for the purpose of her business carried on by
deceased Payal Ganatra in the name of defendant no.1, she had
employed a permanent team of technicians and contractors from
different fields. It is contended that the plaintiff was liable to pay
deceased Payal a sum of Rs.20,00,000/ towards her profit/commission.
The defendant has contended that the suit is not maintainable under
Order 37 of CPC as no relief is falling within the ambit of Order 37 Rule
2 of CPC. Lastly, it is requested to dismiss the suit.
6. Upon considering the rival contentions of the parties my learned
Sum.S.No. 3614/10 Judgment 5
predecessor in office has framed the following issues at Exhibit 3 and
my findings thereon for the reasons recorded are as follows:
REASONS
AS TO ISSUES NO.1 TO 3
7. These issues are interconnected with each other, therefore, I am
taking them together, for my discussion and deciding them
simultaneously, to avoid repetition.
8. In order to prove the suit claim, the plaintiff has examined to
PW 1 Chetan Sanena at Exhibit 18 and PW 2 Milind Pai at Exhibit 26
and has closed his evidence by filing evidence closing pursis at Exhibit
28. In contra, the defendant has examined to one Kamlesh Ganatra at
Exhibit 29, to resist the suit claim of the plaintiff, besides that both the
parties have produced some documentary evidence in support of their
respective cases.
9. Uncontroverted and undisputed facts as seen from the pleadings
of the parties, evidence and circumstances on record needs to be stated
first to outset for the better appreciation of the points in controversy.
There is no dispute that the contract was given by the defendant to the
Sum.S.No. 3614/10 Judgment 6
plaintiff i.e. PW 1 Chetan Sanena. There is no dispute that letter of
intent (Exibit 21) was sent to the plaintiff by Payal Ganatra. There is no
dispute that Milind Pai is the architect and letter dated 15/5/2008
(Exhibit 25) was given by Mr.Milind Pai. There is no dispute that after
completion of the work by plaintiff of Shreyance Motors Pvt.Ltd., Milind
Pai Architect issued letter at Exhibit 25 to the plaintiff.
the relation between Payal Ganatra and defendant. He state that Exhibit
21 was sent to him by Payal Ganatra. It has come in his searching
examination that letter of intent was in respect of the work done at
Worli, at Company's “Thanks” Shreyance Motors Pvt.Ltd. He states that
Shreyance Motors Pvt.Ltd. “Thanks” is the name of Company. One
suggestion was given to PW 1 Chetan that he did not receive
Rs.5,00,000/ towards mobilization advance by cheque and therefore,
he is not remembering the details of the Bank transaction, he has
denied.
12. On going through the evidence of PW 2 Milind Pai, it appears
that in the affidavit filed in lieu of examination in chief at Exhibit 26, he
has stated that the interior work of his client M/s.Shreyance Motors
Sum.S.No. 3614/10 Judgment 8
Pvt.Ltd. was done by plaintiff, who was the sub contractor to M/s.Inter
X defendant no.1, who was awarded overall interior contract. He states
that Payal Ganatra was working as his associate and helping him out in
executing and supervising the contracts awarded to him as designing
architect. He states that the contract of M/s.Shreyance Pvt.Ltd. was
given to the defendant no.1 firm at the request of Payal Ganatra and the
partners of the defendant no.1 viz. Vishal Ganatra and Kamlesh Ganatra
were solely responsible for completing the entire work. He states that
the bill amount of interior work carried out by Element to M/s.InterX
for Shreyance Motors Pvt. Ltd. works out to Rs.31,40,847/ . He states
that he has personally verified the items and quantities as per the bills
at Exhibit 22 issued by the plaintiff to defendant no.1. He states that the
amount of Rs.3,80,000/ was paid to the plaintiff out of the security
deposit lying with Shreyance Motors Pvt. Ltd. as performance security
by defendant no.1. He states that plaintiff had also handled the Snag
List and any service problems related to the site from time to time. He
states that he issued the certificate on 15/5/2008 .
13. During the searching crossexamination of PW 2 Milind Pai it
has come on record that at the time of issuing certificate at Exhibit 25
he was having copy, rates given to the clients and measurement sheet of
the work done. He has admitted that copy of the documents were given
to him by the plaintiff. He has admitted that Payal Ganatra was his
employee and therefore, she used to handle his computer. He states that
his email cannot be accessed by anybody else than him. One suggestion
was given to him that taking undue advantage of the death of Payal
Ganatra and to help to the plaintiff, he has prepared Exhibit 25, he has
denied.
Sum.S.No. 3614/10 Judgment 9
14. Per contra, on going through the evidence of DW 1 Kamlesh it
appears that during the course of his searching crossexamination he
has admitted that his daughter Payal Ganatra was architect by
profession and she worked with Milind Pai as a Architect. He states that
he does not remember the period for which his daughter worked with
Mr.Milind Pai, so also, he doesnot know how much salary she was
getting. He states that he do not know plaintiff personally and he do not
remember whether he met with plaintiff at any point of time. He states
that he does not remember that his daughter introduced plaintiff to
Mr.Milind Pai. He has admitted clearly that he has no document to
show that plaintiff was required to pay 10% of total bill amount of the
project to his daughter. So also, he has no document to show that some
amount was required to be paid to Mr.Milind Pai by the plaintiff. He
deposes that the project cost of Shreyance Motors is Rs.31,00,000/ as
informed by his daughter Payal. He states that he does not know the
project cost of Shreyance Motors was Rs.35,00,000/. So also, he does
not know whether the defendant no.1 received all the payments from
Shreyance Motors. He states that he does not remember that he gave
Rs.20,00,000/ to the plaintiff for Shreyance Motors Project. So also, he
never demanded the alleged amount of Rs.3,80,000/ from Shreyance
Motors Services towards refund of deposit. He states that he does not
know who has conducted the work of Shreyance Motors. He states that
he never received any letter or complaint from Shreyance Motors in
respect of quality and quantity of the work. On suggestion was given to
him that he has deposed false and created imaginary story that plaintiff
was required to pay Rs.20,00,000/ to his daughter, he has denied. He
states that he has not initiated any proceedings against the plaintiff for
an amount of Rs.9,00,000/ as deposed in examinationinchief. He has
Sum.S.No. 3614/10 Judgment 10
admitted that in his police statement he has stated that he is the owner
of defendant no.1 firm. One suggestion was given to him that the
plaintiff is entitled to receive the suit claim from the defendant firm and
that he is having all the information in respect of the work done by
defendant no.1 at Shreyance Motors, he has denied.
15. The learned advocate for plaintiff has submitted that the
plaintiff has produced the sufficient oral and documentary evidence on
record to prove the suit claim. It is submitted that the evidence of PW 1
Chetan Sanena and PW 2 Milind Pai is clear, cogent and supporting by
the documentary evidence on record. It is submitted that from the
evidence on record it is clear that the plaintiff carried out the interior
work to M/s.InterX for Shreyance Motors Pvt.Ltd. for Rs.31,40,847/. It
is submitted that PW 2 Milind Pai verified the said item and quantity as
per the bill issued by the plaintiff to the defendant no.1, which is at
Exhibit 22. It is submitted that the InterX submitted their bill to
M/s.Shreyance Motors Pvt.Ltd. and had received the entire contract
amount, except security deposit of Rs.3,80,000/. It is submitted that as
the defendant did not pay the suit amount of the work carried out by
the plaintiff, the suit is liable to be decreed. During the course of his
argument the learned advocate for the plaintiff drew my attention on
the various documents filed by plaintiff on record and has requested to
decree the suit.
16. Per Contra, the advocate for defendant has submitted that
Ms.Payal Ganatra was an architect by profession and she worked under
Senior Architect Milind Pai (PW 2). It is submitted that Ms.Payal
Ganatra was entitled to adjust a sum of Rs.20,00,000/ out of the
Sum.S.No. 3614/10 Judgment 11
amount payable by Shreyance Motors Pvt.Ltd. and the balance amount
was payable to Chetan Sanena. It is submitted that no bill was raised by
Mr.Chetan Sanena upon Payal Ganatra or upon InterX, during the
lifetime of Payal Ganatra. It is submitted that the suit claim of the
plaintiff is false with the knowledge of plaintiff and therefore, it is
submitted to dismiss the suit as no amount of Rs.7,63,394/ is due and
payable by the defendants to Mr.Chetan Sanena.
17. I have duly considered the above submissions of both the sides
so also, I have gone carefully through the case record. It is pertinent to
mention here that as per the evidence on record the plaintiff
M/s.Element Design Executors executed the works as a subcontractor to
defendants no.1 for Shreyance Motors Pvt.Ltd. It appears that the
plaintiff carried out the total work to the tune of Rs.31,40,847/ and the
defendant had submitted their bills to M/s.Shreyance Motors Pvt.Ltd.
and had received the entire contract amount. It appears that though the
defendant received the amount but they did not pay the full amount to
the plaintiff for the work done by him. From the evidence on record it
appears that the security deposit of Rs.3,80,000/ was lying with
Shreyance Motors Pvt.Ltd. as performance Security by defendant no.1
was paid to the plaintiff. From the evidence on record it appears that
the plaintiff indulged in service problems related to the site from time to
time during the course of carrying out the work. It appears that on the
request of plaintiffChetan Sanena, PW 2 Milind Pai visited on the spot
he had personally verified the items and quantity as per bill agreement
(Exhibit 22) and thereafter, PW 2 issued the certificate at Exhibit 25.
18. There is no dispute that the daughter of DW 1 Kamlesh Ganatra
Sum.S.No. 3614/10 Judgment 12
viz.Ms.Payal Ganatra was Architect and was working with PW 2 Milind
Pai. There is no positive and convincing evidence on record to show
that plaintiff, PW 2 Milind Pai with Ms.Payal Ganatra bagged contract
work worth Rs.1,70,00,000/ for interior and fit outs for a hospital in
Goa under Milind Pai arrangements. There is no positive evidence even
to demonstrate that Ms.Payal Ganatra was entitled to receive
commission on alleged work for a hospital in Goa. There is nothing on
record to show that Ms.Payal Ganatra was entitled to adjust a sum of
Rs.20,00,000/ out of the amount payable by Shreyance Motors Pvt.Ltd.
at Worli, Mumbai, and pay the balance amount to the plaintiff Chetan
Senane. Therefore, the defence raised by the defendant in the written
statement appears not probable.
1) Contract Amount Rs.24,00,000/
2) Extra Work done by
Plaintiff on the site Rs. 6,40,847/
Rs. 30,40,847/
3) Defendant paid Rs.19,97,200/
Rs.10,43,647/
4) Adjustment of Security
deposit amount Rs. 3,80,000/ out of balance amount of
Rs.10,43,200/
Outstanding amount Rs. 6,63,647/
=========
Hence, in view of the matter, I answer to issue no. 1 & 2 accordingly.
As To Issue No.3
20. In view of the aforesaid discussion I reached to the conclusion
that the plaintiff has proved the suit claim as above. Therefore, the suit
is liable to be decreed. In the result, following order:
: ORDER :
1. The Summary Suit No.3614/10 is partly decreed with costs.
2. Defendants shall pay an amount of Rs.6,63,643/ to the plaintiff
alongwith interest at the rate of 9% p.a. from the date of filing of the
suit i.e. 22/2/2010 till its realisation.
3. Decree shall be drawn up accordingly.
(M.M.UMAR)
Judge,
Date : 23/10/2018 City Civil Court, Gr. Bombay
Dictated on : 23/10/2018
Transcribed on : 23/10/2018
Signed on : 31/10/2018
Sum.S.No. 3614/10 Judgment 14