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Judgment
Anoop V. Mohta, J.—The plaintiffs have filed the Suit against the defendants for the recovery of the sum of Rs. 14,81,654/together with interest on the principal sum of Rs. 11,80,601/from the date of filing of the Suit till payment and/or realisation.
On 01.03.1997, one Package weighing approximately 79 tons consigned to M/s. Tata Chemicals Ltd., arrived at the Port of Mumbai per m.v. `IONIAN EXPRESS". The said consignment was manifested under item No. 197 of IGM No. 576. The defendant was appointed by Tata Chemicals Ltd., as their Customs House Agents for clearance of the cargo from the Docks. In terms thereof the Defendant represented to the plaintiffs that the cargo would be received by them/their nominated transporters directly from the Vessels hook onto trailers.
On 04.03.1997 the said package was discharged onto trainer No. NL05A1585 provided by the Defendants'' transporters M/s. Transmove Freight Services Pvt. Ltd. On 04.03.1997 the said trailer after moving about 100 meters away caused the said package to slide down from the trailer and damage Port property i.e. Two Mumbai Port Trust Shore Cranes. On 04.03.1997, plaintiffs addressed a facsimile to the Consignees of the cargo putting them on Notice of the fact that the accident was caused as a result of the default and/or negligence on the part of the defendant/their nominated transporters. On 04.03.1997, Surveyors M/s. Ericson & Richards appointed to ascertain, interalia, the cause of the accident. Accordingly, Surveyors attended at site from 1430 hours to 2230 hours on 4th March, 1997.
Thereafter from 13.02.1998 till 01.12.1998 the plaintiffs forwarded to the defendants, their debit note towards the interest from time to time.
On 11.08.1999, Notice served upon the defendant by the plaintiff''s Advocate requiring the defendant to make payment of the amount of Rs. 11,80,601/along with interest thereon at the rate of 18% from 21.11.1997 within three weeks there from. Defendant however failed and/or neglected to respond to the said Notice within the Notice period of three weeks or to make payment of its admitted liability in the sum of Rs. 11,80,601/.
On 22.10.1999, defendant, through their Advocates, belatedly i.e. after the expiry of the period of three weeks from service of Notice u/s 433, 434 of the Companies Act, 1956, addressed a letter in reply and reverted with wholly irrelevant and immaterial contentions.
On 01.03.2000, reply of the plaintiffs'' Advocates to letter dated 22.10.1999 addressed by the defendants'' Advocate, Gagrat & Co.
On 06.03.2000, the plaintiffs instituted against the defendant a company petition in this Court being Company Petition No. 423 of 2000, which was dismissed and also the Appeal.
On 14.08.2000, the defendant filed their Affidavit in reply.
On 20.11.2000, the present Suit is filed by the plaintiff.
The plaint was admitted on 27.02.2001. The writ of summons was served upon the defendants to file appearance on 31.03.2001. The Summons for Judgment registered on 8.2.2008. Therefore, admittedly, there is a delay of 7 years.
Under the provisions of Order 37, Rule 3 and Rule 4 of Code of Civil Procedure, 1908 (CPC) read with Rule 227 of Bombay High Court (Original Side) Rules, the plaintiffs were required to apply for a decree within six months from the date of the filing of the plaint. The explanation was that the plaintiffs have filed this Summons for Judgment after the decision of Division Bench Order dated 27.08.2007 whereby in the Company Appeal, the defendants were directed to deposit an amount of Rs. 11,00,000/- (Rupees eleven lacs only) within six weeks which they did. It was observed that in the event of the defendants depositing the said amount, the same would stand to the credit of the present Summary Suit. Therefore, admittedly, pending the Appeal, inspite of filing of present Summary Suit and above mandatory requirements, no steps were taken within six months. The Division Bench of this Court in Bankay Bihari G. Agrawal v. Bhagwanji Meghiji and Ors. 2001 103 (1) Bom. L. R. 823 has expressed that the Court has discretion to consider to condone the delay in the interest of justice. However, considering the admitted position on record, in my view, mere filing of the Appeal/Company Petition is no ground not to take steps within six months as prescribed by Rule 227. There is nothing mentioned and/or provided that pendency of any other proceedings debars the parties from moving Summons for Judgment within six months as per the Rules. Having once filed the Summary Suit on 21.11.2002, the Summons for Judgment ought to have filed within six months and/or within the reasonable time. The company proceedings so initiated and the deposit of Rs. 11,00,000/- so made by the defendants that itself, in my view, cannot be said to be sufficient reason to condone the delay in the present facts and circumstances of the case.
Even on merit, the alleged acknowledgement/undertaking itself cannot be said to be acknowledgment of liability of the amount so claimed in the Suit. A Full Bench of this Court in Jyotsna K. Valia Vs. T.S. Parekh and Co., while considering the maintainability of a Summary Suit under Order 37, Rule 2 of CPC, based upon written contract observed that; (a) there must be a concluded contract; (b) the contract must be in writing; (c) the contract must contain an express or implied promise to pay and; also that an essential requirements of a "debt" are an ascertained or readily calculable amount; an absolute unqualified and present liability; a "contingent liability or contingency debt is neither a liability nor a debt." Therefore, in the present case, when undertaking was given, the amount was not ascertained. The undertaking was only to pay the amount towards the cost of repairs to the damaged property. It was finalised, as alleged, later on. Thereafter bill dated 21.11.1997 was sent alleging to be the actual cost of repairs by letter dated 12.12.1997.
The defendants, however, resisted the same in writing. Though, from time to time, debit notes towards interest were sent, that itself, in my view, cannot be said to be acknowledgment of the liability and/or settlement of account signed by both the parties as contemplated in Jyotsna (supra) referred above for filing the Summary Suit. The said undertaking, therefore, in my view, cannot be treated as a written contract between the parties. The present Suit, therefore, cannot be treated as a Suit for recovery of a debt or a liquidated amount, basically arising out of a contract note, specially when the said undertaking itself expressed "without prejudice to defendants rights and contentions".
The said undertaking nowhere provides any payment of any interest by the defendants. The Summary Suit is for Rs. 11,80,601/- and Rs. 3,01,053.25 is claimed towards interest at 9% per annum from 19.01.1998 till the date of the filing of the Suit. The said issue was raised for the first time in the letter dated 19.01.1998 and thereafter as alleged, debited through the purported debit note as referred above. The defendants has objected the basic amount/damages, based upon the bill, so raised and also the undertaking to consider the merit of the charges so claimed, as paid by the plaintiffs stated to be the cost of repairs. The defendants have also raised various defences on the merits of the matter including their liability to make the payment towards damages based upon the alleged negligence/obligation.
In view of the above, I am of the view that the defence so raised needs detail inquiry and trial. The issues so raised are triable issues as the defendants have good defence to the claims on merits. I am not inclined to accept that the defence is illusory or sham.
Resultantly, the defendants are granted unconditional leave to defend the Suit. The Suit stands transferred to the list of commercial causes. The defendants to file written statement within a period of eight weeks.
The Summons for Judgment is accordingly dismissed. No order as to costs.