901.1500.22 wp.doc

ISM

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL WRIT PETITION NO. 1500 OF 2022

ARDESHIR B. CURSETJI AND

….PETITIONER

SONS LIMITED

V/s.

R.R. ROADWAYS PRIVATE LIMITED

…..RESPONDENT

Mr. Sunny Shah a/w Mr. Naresh Patani i/b Ashwin Ankhad &

Associates for the Petitioner

Mr. Abhishek Venkatraman a/w Burzin Somandy i/b Tejaswita

Nalawade for Respondent

CORAM :

NITIN W. SAMBRE, J.

DATE:

FEBRUARY 17, 2022.

P.C.:

1)

By consent, matter is taken up for final disposal at admission

stage.

2)

Shri Shah learned counsel for the Petitioner would urge that

challenge in the petition is to the order dated 17/01/2022 passed by

City civil Court Mumbai on summons for Judgment in Summary Suit

No. 3914 of 2013 whereby Petitioner-Defendant is put to condition of

deposit of amount of Rs. 38,10,000/- with interest at the rate of 10%

per annum.

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IRESH SIDDHARAM

MASHAL

Digitally signed by IRESH

SIDDHARAM MASHAL

Date: 2022.04.01 15:40:48 +0530

901.1500.22 wp.doc

3)

Facts necessary for deciding the present Petition are as under.

4)

Respondent-Plaintiff alleged that they are fleet owners operating

business of cargo transport. It is alleged that as contract between the

parties to the Suit it was agreed that Rs. 2000/- per day per trailer

were payable towards detention charges in respect of cargo weight

upto 22 MT, in between weight 23 to 28 MT at the rate of Rs. 3000/-

per day per trailer and between 28 to 32 MT, at the rate of Rs. 4000/-

per day per trailer. Out of the total dues which are receivable by the

Plaintiff from the Defendant based on work order, it is claimed that

amount of Rs. 8,44,000/- remained to be paid in addition to

detention charges resulting into filing of the suit for recovery of the

amount. In response to summons for Judgment, Petitioner-Defendant

took out an Application for grant of unconditional leave to defend

which is allowed subject to deposit of amount as mentioned in the

impugned order. As such this petition.

5)

By inviting attention of this court to the pleadings in the Plaint,

counsel for the Petitioner-Defendant Shri. Shah would urge that

perusal of the pleadings in the Plaint would reveal that same is based

on implied contract. In absence of absolute, express, concluded

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contract, it is not open to the Court below to refuse the prayer for

grant of leave to defend.

6)

He would invite attention of this court to pleadings in the Plaint

to that effect particularly at para 11. He would further claim that

since from the pleadings and the documents on record, the amount

payable cannot be ascertained or readily calculable, the court below

ought not to have put the Petitioner to a condition of deposit of the

amount. He would further claim that there is strong defendable case

in favour of the Petitionar-Defendant . He would further urge that

Court below has committed an error in observing that the Petitioner

shall also deposit amount of interest at the rate of 10% per annum.

So as to substantiate the said claim, Petitioner has drawn support

from the Judgment of this court in the matter of Jyotsana K. Valia

and Ors. Vs. T.S. Parekh Co. and Ors¹ and also from the Judgment of

Apex Court in the matter of IDBI Trusteeship Services Ltd. Vs.

Hubtown Ltd.² He would specifically urge that amount which is

directed to be deposited so as to facilitate the leave to defend is not

ascertainable as nowhere it can be readily ascertainable or

1 2007 (4) Mh.L.J. 517

2 2017 (1) SCC 568

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calculable.

7)

While countering the aforesaid submissions, counsel for

Respondent has supported the order impugned. According to him,

work order which is in the form of contract in express terms provides

for payment of detention charges and there is communication on

record to infer that liability was admitted by Petitioner-Defendant.

8)

Considered rival submissions.

9)

It