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High Court of Judicature at Bombay
R.D. DHANUKA
Florens Containers INC.
Versus
M/s.Ornate Multimodal Carriers Pvt. Ltd.
SUMMONS FOR JUDGMENT NO. 471 OF 2010 IN SUMMARY SUIT NO. 367 OF 2008
Decided on : 23-08-2012
Dismissal of summons for judgment due to technical infraction and not on merits, not barred subsequent summons for judgment. - Summons for judgment is not maintainable and is barred by principles analogous to res judicata as the earlier summons for judgment (40 of 2008) filed by the plaintiff came to be dismissed by an order dated 21st September, 2010 passed by Mr. Justice R.Y.Ganoo. On the other hand, the plaintiff had filed summary suit as well as summons for judgment on 17th January, 2008. He it is true that summons for judgment could be filed only after vakalatnama was filed by the defendant after service of Writ of Summons as required under Order XXXVII, Rule 3 of the Code of Civil Procedure, 1908, the earlier Summons for Judgment was not dismissed on merits but due to this technical infraction of procedure. This summons for judgment is therefore maintainable and is not barred by res judicata or principle analogous thereto. Earlier summons for judgment is not dismissed on merits but due to technical infraction, this summons for judgment is not barred by principles analogous to res- judicata and is maintainable.
Civil Procedure Code, 1908 - Order XXXVII, Rule 3 - Summary suit.
Since substantial triable issues raised by defendant, can be decided only at trial of suit hence unconditional leave granted to defendant to defend summary suit. - Issues as part of claim made by plaintiff is barred by limitation. If letters by defendant offering to settle dues of plaintiff ’without prejudice’ can be considered as acknowledgment of liability and would extend period of limitation?
Whether plaintiff is entitled to make claim for rentals for subsequent period? These pleas by defendant raise triable issues and go to root of matter. Unconditional leave to defend is liable to be granted to defendant.
Civil Procedure Code, 1908 - Order XXXVII, Rule 3 - Summary suit.
Where plaint was verified by constituted attorney of plaintiff and that power of attorney was signed by same person who had signed lease agreement therefore summary suit filed by plaintiff, maintainable. - After perusal of the power of attorney and the agreement between the parties and the cause title of the plaint it is clear that the suit has been filed by the same lessor who was party to the lease agreement. The plaint has been verified by one of the constituted attorney appointed by the plaintiff which power of attorney was signed by the same person who has signed the lease agreement. There is no substance in this defence raised by the defendant. The defendant has not raised any plea in the affidavit in reply that the said power of attorney was not stamped. Photocopy of the power of attorney filed by the plaintiff shows that the same is stamped.
Civil Procedure Code, 1908 - Order XXXVII, Rule 3 - Summons for judgment.
Delay in taking out summons for judgment, not automatically entitled defendant to unconditional leave to defend. - Summons for judgment has been taken out on 16th December, 2010, the defendant had filed Vakalatnama in the month of March, 2008. This summons for judgment has not been taken out within a period of six months from the date of the defendant filing Vakalatnama . Summons for is, therefore, not maintainable. In the alternative, it is submitted that the defendant is entitled to unconditional leave to defend the suit. Counsel appearing on behalf of plaintiff on the other hand submitted that for judgment No. 40 of 2008 was taken out within a period of six months from date of defendant filing Vakalatnama, the proceeding was rejected as not maintainable by an Order dated 21st September, 2010. Summons for judgment is thereafter immediately filed and thus there is no delay in taking out this summons for judgment.
The earlier summons for judgment was taken out within six months from the date of filing of Vakalantama, the same was however rejected not on merits but due to technical infraction of procedure. The earlier summons for judgment thereafter was taken out immediately after the earlier summons for judgment came to be rejected by Mr. Justice R.Y. Ganoo on 21st September, 2010. The present summons for judgment is maintainable and in view of the fact that the summons for judgment was taken out within six months from the date of filing Vakalatnama, is no substance in the submissions made by the defendant that there is any delay in taking out summons for judgment or that the same is not maintainable. Even otherwise the delay in taking out summons for judgment beyond the period of six months prescribed by Rule 227 does not automatically entitle the defendant to unconditional leave to defend the suit; but it is a relevant factor to be considered in conjunction with the nature of the defence while granting conditional or unconditional leave to defend the suit or refusing the application for leave to defend.
P.C.
By this Summons for Judgment, the Plaintiff seeks judgment be entered for the Plaintiff in this suit against the Defendant for a sum of US $ 58,677.91. The suit is based on the written contract dated 30th December, 2002 and various invoices issued by the Plaintiff.
2. On 1st November, 2002, the Plaintiff entered into a Lease Agreement (Equipment Agreement) with the Defendant and leased various containers for its business operation on the terms and conditions setout in the said Agreement. The lease period was from 1st November, 2002 to 31st October, 2003. The agreed rental payable by the Defendant was setout therein. Clause 10(a) and (b) of the Agreement reads as follows:-
“(a) If a unit of Leased Equipment is lost or destroyed, Lessee shall send a written declaration of loss to Lessor as soon as the loss is known and Lessee shall pay the Replacement Value (“RV”) or Depreciated Replacement Value (“DRV”) for the unit as stated in the applicable Lease. If a unit is returned to Lessor’s designated depot and the repair costs for Lessee’s account are higher than the applicable RV Or DRV, Lessee shall pay the applicable RV or DRV for the unit.
(b) A unit which is lost or destroyed and has not been returned to Lessor’s designated depot shall be off-hired on the date of Lessee’s declaration of loss, provided that the applicable RV or DRV is paid within forty-five (45) calender days of the date of Lessor’s invoice. Otherwise, the unit shall be off-hired on the date the invoice is paid.”
3. According to the Plaintiff except 8 containers the Defendant returned all the containers to the Plaintiff. The Plaintiff’s Agent vide its e-mail enquired with the Defendant regarding the whereabouts of the containers not returned by the Defendant and requested to return the same to the Plaintiff. By its e-mail dated 10th September, 2004 the Defendant informed the Plaintiff’s Agent that all the 8 containers were loaded for Kuwait and were being located. It was stated that said Defendant was taking legal action against its Kuwait Agent. In the meanwhile the Defendant requested the Plaintiff’s Agent to advise the cost of each of the container. By e-mail dated 16th October, 2004, Defendant reiterated that it had taken legal action against its Kuwait Agent and requested for the value of the containers.
4. By e-mail dated 19th October, 2004 to the Defendant, the Plaintiff’s Agent attached the calculations of the depreciated value of the 8 containers. By e-mail dated 26th October, 2004, the Defendant informed the Plaintiff that they had given up 8 containers as lost by their Kuwait Agent and was in the process of taking legal action. The Defendant requested the Plaintiff to discontinue billing them their rentals from 10th September, 2004. The Defendant requested the Plaintiff to deduct the cost price by 50% of the amount quoted by the Plaintiff.
5. By e-mail dated 1st November, 2004, the Plaintiff’s Agent declined to accept cost Depreciated Value (DV) of 8 containers and insisted that the Defendant shall pay DV of the containers as on 10th September, 2004, as per the terms of the Agreement. On 11th November, 2004 the Plaintiff raised invoice against the Defendant for US$ 17,090.50 towards DV of 8 containers. The Defendant, however, failed to pay the said amount. The Plaintiff’s Agent sent another e-mail to the Defendant making it clear that rentals would be continued to be billed until the DV were paid in full by the Defendant. On 23rd February, 2005, the Defendant by their e-mail informed the Plaintiff that the Defendant had initiated legal action against their Kuwait Agent for recovery/compensation for the lost containers. It is submitted that since the Defendant had not been using those containers, it would be contrary to normal business practice and not fair to pay rental for such containers so long as they were not recovered or compensated for. It is contended that the payment due from the Defendant would be only upto 10th September, 2004
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