22-COMSS-1-21.DOC

Sayali Upasani

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

COMMERCIAL SUMMARY SUIT NO. 1 OF 2021

JTB Jupiter Express Services Pvt. Ltd.

...Plaintiff

Versus

Om International Courier Cargo Service &

Anr.

… Defendants

Mr. Darshil Thakkar i/b Argud Partners, for the Plaintiff

None for the Defendants.

CORAM:

N. J. JAMADAR, J.

DATED :

4^th August, 2022

ORDER:-

1.

This Commercial Division Summary Suit is instituted for

recovery of a sum of Rs.3,01,33,794/- along with further interest

at the rate of 21% per annum.

2.

The plaintiff is a company incorporated under the

Companies Act, 1956. The plaintiff is, inter alia, engaged in the

business of International Courier Consolidation. The plaintiff

acts as a middleman between the retail courier service providers,

who are engaged in door to door delivery of parcels, and airlines.

The defendant No.1 is a retail cargo courier service provider. The

defendant No.2 to 4 are engaged in the day to day running of the

business of defendant No.1.

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SANTOSH

SUBHASH

KULKARNI

Digitally signed by

SANTOSH

SUBHASH

KULKARNI

Date: 2022.08.06

15:30:32 +0530

22-COMSS-1-21.DOC

3.

The defendants approached the plaintiff and requested the

plaintiff to provide credit facility and courier baggage

consolidation services. An undertaking letter dated 24^th May,

2010, came to be executed in favour of the plaintiff assuring

therein that the amounts payable to the plaintiff under the

invoice raised by the plaintiff would be paid within four weeks

from the date of the invoice.

4.

Over a period of time the defendants availed the services

from the plaintiff, against which several invoices were raised.

Since September, 2016, the defendants failed to make regular

payments. For the period between September, 2016 to July, 2018,

an aggregates sum of Rs.1,81,65,028/-, against 26 invoices,

remained outstanding. As the defendant failed to pay the

outstanding amount despite repeated requests and reminders, a

legal notice dated on 8^th February, 2019, was addressed calling

upon the defendants to clear the outstanding amount.

Thereupon, the defendants assured to pay a sum of

Rs.1,25,000/- every fortnight. The defendants thus paid an

amount of Rs.8,75,000/- from March, 2019 to September, 2019.

On 2^nd March, 2020, the defendant No.1 has acknowledged the

liability to pay the sum of Rs.1,72,90,028/-.

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22-COMSS-1-21.DOC

5.

As the defendants again committed default in payment,

notice was addressed on 18^th May, 2020, calling upon the

defendants to pay the entire due amount. The said notice was

followed by another legal notice dated on 31^st July, 2020. Vide e-

mail communication dated 3^rd August, 2020, the defendant No.2

made a dishonest attempt to avoid the liability by raising false

and frivolous contentions. Hence the suit.

6.

An af昀椀davit of service is 昀椀led Mr. Rajkumar J. Tiwari, the

bailiff attached to the of昀椀ce of Sheriff of Bombay, that the writ of

summons has been served on defendant Nos.1 to 4 on 2^nd March,

2021. Postal acknowledgments evidencing the service of writ of

summons are annexed to the af昀椀davit.

7.

None appeared for the defendants.

8.

Thus, by an order dated 21^st July, 2022, the suit was

directed to be listed for ex parte decree.

9.

The plaintiff has tendered an af昀椀davit of evidence, af昀椀davit

of documents and compilation of documents.

10.

I have heard Mr.Thakkar, the learned Counsel for the

plaintiff. With the assistance of the learned Counsel, I have

perused the averments in the plaint, documents annexed with it,

af昀椀davit of evidence of plaintiff’s 昀椀rst witness Mr. Prashant

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22-COMSS-1-21.DOC

Shetty and the original documents tendered for the perusal of

the Court.

11.

As the defendants have not entered appearance despite the

service of the writ of summons, under Order XXXVII Rule 2 (3),

the allegations in the plaint are