{"id":211764,"date":"2011-01-05T00:00:00","date_gmt":"2011-01-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011"},"modified":"2017-10-14T02:58:31","modified_gmt":"2017-10-13T21:28:31","slug":"mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011","title":{"rendered":"Mr. S.K. Agrawal vs Mrs. Varsha A. Maheshwari on 5 January, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Mr. S.K. Agrawal vs Mrs. Varsha A. Maheshwari on 5 January, 2011<\/div>\n
Bench: B. P. Dharmadhikari<\/div>\n
                                       1\n\n\n\n\n                                                                       \n                                               \n            IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                      NAGPUR BENCH, NAGPUR.\n\n\n\n\n                                              \n                WRIT PETITION  Nos. 5664 & 5364 OF 2010.\n                                .........\n\n\n\n\n                                    \n                     \n    WRIT PETITION No. 5664 OF 2010.\n\n    M\/s. Bhushan Steel Limited,\n                    \n    having its Registered Office at F-Block,\n    1st Floor,  International Trade Tower\n    Nehru Place, New Delhi - 110019\n    through its Power of Attorney Holder\n      \n\n    Mr. S.K. Agrawal.                                   ....PETITIONER.\n   \n\n\n\n                                   VERSUS\n\n    Mrs. Varsha A. Maheshwari,\n\n\n\n\n\n    Proprietor of M\/s. Parijat Enterprises\n    through her Power of Attorney\n    Mr. Ajay Maheshwari, Aged abut 42 years,\n    Occupation - Business, r\/o. A-2\/41, \n    Vrindavan Apartment, New Hislop College,\n\n\n\n\n\n    Civil Lines, Nagpur.                              ....RESPONDENT\n                                                                    . \n\n                             ---------------------- \n                  Mr.  S. Dewani, Advocate for Petitioner.\n      Mr.  Ajay Maheshwari, Power of Attorney Holder for Respondent.\n                             -----------------------\n\n                                     WITH\n\n\n\n\n                                               ::: Downloaded on - 09\/06\/2013 16:44:18 :::\n                                            2\n\n\n\n\n                                                                             \n    WRIT PETITION No. 5364 OF 2010.\n\n\n\n\n                                                     \n    Mrs. Varsha A. Maheshwari,\n    Prop\/o M\/s. Parijat Enterprises\n\n\n\n\n                                                    \n    through her Power of Attorney\n    Mr. Ajay Maheshwari, Aged abut 42 years,\n    Occupation - Business, r\/o. A-2\/41, \n    Vrindavan Apartment, New Hislop College,\n    Civil Lines, Nagpur.                             ....PETITIONER.\n\n\n\n\n                                        \n                         ig            VERSUS\n                       \n    1. M\/s. Bhushan Steel Limited,\n    having its Registered Office at F-Block,\n    1st Floor,  International Trade Tower\n    Nehru Place, New Delhi - 110019\n      \n\n    through its M.D. Shri Neeraj Singhal\n   \n\n\n\n    2. Mr. B.K. Sinha, G.M. Purchase Department,\n    Bhushan Steel Limited, r\/o. Bhushan Steel Ltd,\n    at Narendrapur, P.O. Kusupanga, \n\n\n\n\n\n    Via Meramandali, District Dhenkanal, Orissa,\n    New Address :\n    To Mr. B.K. Sinha, General Manager,\n    C\/o. Ispat Industries Ltd.,\n    6th Floor, \"Nirmal\" Building,\n\n\n\n\n\n    Nariman Point, Mumbai - 400 021.\n    Phone  022 6654222                                         ....RESPONDENTS\n                                                                              . \n\n                              ---------------------- \n       Mr.  Ajay Maheshwari, Power of Attorney Holder for Petitioner.\n               Mr.  S. Dewani, Advocate for Respondent No.1.\n                              -----------------------\n\n\n\n\n                                                     ::: Downloaded on - 09\/06\/2013 16:44:18 :::\n                                             3\n\n\n\n\n                                                                               \n                                                       \n                             CORAM :  B.P. DHARMADHIKARI,  J. \n<\/pre>\n
     Date of reserving the Judgment. -                  23.12.2010\n\n\n\n\n                                                      \n     Date of Pronouncement.          -                  05.01.2011\n\n      \n\n     JUDGEMENT.    \n\n\n\n\n                                        \n                       \n                Challenge   in     both   these   Writ   Petitions   filed   by   rival \n                      \n<\/pre>\n
    parties against eachother is to orders dated 30.09.2010 passed by the <\/p>\n
    4th  Joint   Civil   Judge,   Senior   Division,   Nagpur   in     Civil   Suit <\/p>\n
    No.70\/2009.  The said suit is filed by the petitioner in Writ Petition <\/p>\n
    No.   5364\/2010   as   Summary   Suit   for   recovery   of   amount   of   Rs.\n<\/p>\n
    38,89,674.14 along with interest @ 18% jointly and severally against <\/p>\n
    the   defendants   therein.     The   dues   claimed   are   on   account   of <\/p>\n
    Magnetite   Powder     supplied   by   the   plaintiff   to   defendant   no.1 <\/p>\n
    Company on the strength of purchase orders placed by the defendant <\/p>\n
    no.1 Company with the plaintiff.   The defendant no.2 is the General <\/p>\n
    Manager in purchase department of defendant no.1 Company.  By the <\/p>\n
    impugned   order   passed   below   Exh.16   the   trial   Court   has   granted <\/p>\n
    leave to defend under Sub-rule [5] of Rule 3 of Order 37 of Code of <\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                                4<\/span><\/p>\n
    Civil Procedure Code, subject to defendants depositing a sum of Rs.\n<\/p>\n
    34, 24,895\/- in Court or then furnishing a bank guarantee for that <\/p>\n
    sum   within   a   period   of   one   month.       The   plaintiff   claims   in   Writ <\/p>\n
    Petition that such a relief could not have been granted and a decree <\/p>\n
    for   amount   claimed   with   interest   ought   to   have   been   awarded.\n<\/p>\n
    Defendant no.1 has filed Writ Petition No. 5664\/2010, and very same <\/p>\n
    order   to   the   extent   it   calls   upon   defendant   no.1   to   deposit   the <\/p>\n
    amount or to furnish Bank guarantee has been assailed in it claiming <\/p>\n
    unconditional leave.   In that Writ Petition on 23.11.2010 this Court <\/p>\n
    extended   time   to   furnish   bank   guarantee   till   30.11.2010   and <\/p>\n
    thereafter     on   01.12.2010   the   petitioner   \/defendant   no.1   has <\/p>\n
    accordingly furnished the Bank guarantee in that amount to the Trial <\/p>\n
    Court.\n<\/p>\n
    2.           Plaintiff   through   her   Power   of   Attorney   Holder   while <\/p>\n
    assailing   the   order   in   writ   Petition   No.   5364\/2010   has   invited <\/p>\n
    attention to the purchase orders to show that the quality of  powder <\/p>\n
    supplied   was   to   be   inspected   by   the   defendants   at   their   end   and <\/p>\n
    thereafter, payment was to be released within 7 days.   The material <\/p>\n
    if found inferior was to be returned within 7 days.     Various terms <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                             5<\/span><\/p>\n
    and conditions of the purchase order are indicated to urge that time <\/p>\n
    has always been the essence of the contract.     In view   of this the <\/p>\n
    defence of defendants  that material supplied was  of inferior quality <\/p>\n
    is, stated to be by way of after thought and for that purpose attention <\/p>\n
    is invited to the quantity of powder asked for in each purchase orders <\/p>\n
    and how it has steadily increased.    The details of bills and payments <\/p>\n
    released are also shown to this Court pointing out that except for the <\/p>\n
    entries at Sr. Nos. 37 to 44 in chart there has been no delay at all and <\/p>\n
    all payments have been released duly after inspection.   It is urged <\/p>\n
    that the payments released were not in accordance with supply or <\/p>\n
    could not be co-related and hence plaintiff was required to send a <\/p>\n
    special   representative   to   understand   the   accounts.     For   amounts <\/p>\n
    remaining  outstanding  e-mails   were  required to  be  forwarded,  but <\/p>\n
    then it did not receive any response.   When legal notice was sent on <\/p>\n
    03.03.2009,   immediately   within   two   hours   reply   notice   was <\/p>\n
    forwarded   by   defendants   taking   a   stand   that   the   material   was   of <\/p>\n
    inferior quality.\n<\/p>\n
    3.           Attention has also been invited to the alleged third party <\/p>\n
    test reports and also  to the test reports conducted by the defendants <\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                               6<\/span><\/p>\n
    as   alleged   to   show   how   plea   as   raised   about     inferior   quality   of <\/p>\n
    material  do not match with the said story.  The  Attorney of plaintiff <\/p>\n
    contends  that first grievance of  poor quality has been made almost <\/p>\n
    after nine months and then on the basis of the so called independent <\/p>\n
    test reports, pro-rata  deductions have been effected from all supplies.\n<\/p>\n
    Out of total 77 trucks supplied, payments have been released for 55 <\/p>\n
    trucks and there was never any complaint about remaining 22 trucks.\n<\/p>\n
    The  establishment of defendants  is  stated to be  very big  and with <\/p>\n
    facility for stringent quality check.   It is urged that in reply to the <\/p>\n
    legal notice for the first time on 03.03.2009 story of frequent break <\/p>\n
    downs in preceding one year and of alleged loss of several Crores has <\/p>\n
    been revealed & pressed into service.  The letter dated 28.02.2009 is <\/p>\n
    stated to be fabricated, as plaintiff got it on 26.03.2009 after receipt <\/p>\n
    of   the   e-mail     reply   of   defendants.     This   communication   dated <\/p>\n
    28.02.2009 is also urged to be exact replica of e-mail reply, except for <\/p>\n
    addition of figure of loss therein.     The test   certificates placed on <\/p>\n
    record by the defendants   and   test certificates filed by the plaintiff <\/p>\n
    are   also   pointed   with   contention   that   the     test     certificates   of <\/p>\n
    defendants  are  of  same  date   i.e. of  date  of  delivery.    The  learned <\/p>\n
    Attorney states that thus on the basis of immediate tests, no grievance <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                              7<\/span><\/p>\n
    was made about the inferior qualify and material was appropriated <\/p>\n
    and used for production by the defendants. After the stock supplied <\/p>\n
    was appropriated, there is no question of its rejection.  It is also urged <\/p>\n
    that when the  defendants allegedly  felt need of impartial\/ 3rd party <\/p>\n
    test, why the plaintiff was not taken into confidence by arranging for <\/p>\n
    joint sampling.  It is urged that leave to defend has been sought for <\/p>\n
    without any material and service of letters upon plaintiff is alleged <\/p>\n
    through   TCI   Express   Courier.       The   plaintiff   states   that   these <\/p>\n
    documents are fabricated and when plaintiff sought information from <\/p>\n
    TCI Express Couriers, the said Courier has denied service of any such <\/p>\n
    letters on plaintiff.   Effort has also been made to show that records <\/p>\n
    have   been   interpolated   and   fabricated   by   inviting   attention   to   the <\/p>\n
    counter   submissions   filed   before   this   Court   vide   Stamp   No. <\/p>\n
    12432\/2010.     The particulars used as Courier numbers\/details are <\/p>\n
    stated  to be  also manipulated.     The effort of  defendant    to force <\/p>\n
    plaintiff to lift 300 M.T. Of alleged inferior quality material is also <\/p>\n
    stated to be again false in this background.  It is contended that in the <\/p>\n
    face   of   these   complaints   (alleged)   about   quality,   the   contract   was <\/p>\n
    never terminated and later supplies were accepted by the defendants.\n<\/p>\n
    Plaintiff   states   that   denial   of   signature   of   Arvind   Srivatava   by <\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                                8<\/span><\/p>\n
    defendant is false & an application moved by her under  Section 340 <\/p>\n
    of Criminal Procedure Code is very much pending.\n<\/p>\n
    4.            Shri   Dewani,   learned   Counsel   appearing   for   defendants <\/p>\n
    has   urged   that   the   plaint   as   filed   does   not   carry   verification   as <\/p>\n
    required by Order VI Rule 15(1) of Code of Civil Procedure.   It is <\/p>\n
    further urged that the suit also suffers from mis-joinder, in as much <\/p>\n
    as   there   is   no   cause   or   contract   for   filing   such   suit   against   the <\/p>\n
    defendant   no.2-   Shri   B.K.   Sinha,   General   Manager.     Specific <\/p>\n
    statement, that suit does not ask for any relief, not compatible with <\/p>\n
    Order 37 Rule 2 of Code of Civil Procedure   is not contained in the <\/p>\n
    plaint, and there is also prayer to release interest @ 18%, which is <\/p>\n
    not supported by any  statute or by any document.  In view of these <\/p>\n
    defects, unconditional leave to defend ought to have been granted.  It <\/p>\n
    is urged that as per purchase order only Court at Cuttack in State of <\/p>\n
    Orissa   has   territorial   jurisdiction   and   hence,   the   suit   as   filed   at <\/p>\n
    Nagpur could not have been looked into.     The original documents <\/p>\n
    were not filed along with the plaint and were tendered on record on <\/p>\n
    last date behind the back of the defendants.  Hence, no cognizance of <\/p>\n
    those documents could have been taken and suit could not have been <\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                                9<\/span><\/p>\n
    treated as summary suit.   It is urged that the application moved by <\/p>\n
    the defendant no.1 for directing plaintiff to take back 300 M.T. of <\/p>\n
    powder is still pending and has not been decided.     Earlier orders <\/p>\n
    passed by this Court on 22.07.2010 in Writ Petition No. 1534\/2010 <\/p>\n
    are pressed into service to show how   the aspect of jurisdiction and <\/p>\n
    mis-joinder of parties needed to be looked into first by the trial Court.\n<\/p>\n
    The learned Counsel states that in the impugned order the trial Court <\/p>\n
    has overlooked this direction and has decided all points together.\n<\/p>\n
    5.            The balance confirmation letter on which the plaintiff has <\/p>\n
    placed   reliance   is   stated   to   be   false   and     attention   is   invited   to <\/p>\n
    affidavit of Shri Arvind Shrivastava, alleged to be signatory to that <\/p>\n
    balance   confirmation   disclosing   that   he   has   not   placed   any   such <\/p>\n
    signature.     The   defendant   has   also  filed   application   under   Section <\/p>\n
    340 of Criminal Procedure Code against the plaintiff and the same is <\/p>\n
    stated to be pending.     It is urged that the plaintiff cannot chose to <\/p>\n
    rely only upon one clause of the contract and entire contract needs to <\/p>\n
    be   construed   together.     Various   judgments   are   relied   upon     to <\/p>\n
    substantiate   all   these   aspects.     The   certificates   of   inferior   quality <\/p>\n
    produced on record and   also correspondence are stated to require <\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                                10<\/span><\/p>\n
    trial and hence it is contended that grant of unconditional leave was <\/p>\n
    essential.\n<\/p>\n
    6.            The attorney for plaintiff in reply has argued that there is <\/p>\n
    no defect in verification and in any case that defect is curable.   He <\/p>\n
    further states that Mr. Sinha was the General Manager of defendant <\/p>\n
    no.1 Company and he has been rightly sued in that capacity.   It is <\/p>\n
    further urged that the  defendant no.1 has got no establishment at <\/p>\n
    Cuttack  and no  cause  of action  has  accrued at Cuttack,  hence  the <\/p>\n
    parties by their consent cannot confer jurisdiction on that Court.  It is <\/p>\n
    submited   that   the   purchase   orders   are   signed   by   defendant   no.2 <\/p>\n
    General Manager Shri Sinha.  He has  done some wrong things and <\/p>\n
    he is also party to forgery of letters, hence he has been rightly  joined <\/p>\n
    as   defendant   no.2.     Attention   is   invited   to   plaint   to   urge   that   it <\/p>\n
    contains all necessary averments.   Original documents are stated to <\/p>\n
    be     filed   at   the   time   of   hearing   and   passing   of   the   orders   below <\/p>\n
    Exh.16   only   to   protect   them   and   it   is   further   argued   that   no <\/p>\n
    prejudice is caused to the defendants thereby.\n<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                                 11<\/span><\/p>\n
    7.            It   is   also   argued   that   the   defendant   has   not   made   any <\/p>\n
    reference to either Sale of Goods Act or to the Contract Act and the <\/p>\n
    plaintiff  has  also relied upon  various  judgments  to show how said <\/p>\n
    provisions   clinch   the   controversy   and   an   inference   of   deemed <\/p>\n
    acceptance of material supplied  needs to be drawn.\n<\/p>\n
    8.            After   hearing   the   respective   parties,   I   find   it   first <\/p>\n
    appropriate to consider the aspect of territorial jurisdiction.\n<\/p>\n
                  The Summary Suit is based upon purchase orders and the <\/p>\n
    said   orders   specifically   incorporate   a   condition   that   the   dispute <\/p>\n
    between   the   parties   shall   always   to   be   deemed   to   have   arisen   at <\/p>\n
    Cuttack and only Cuttack Court will have the jurisdiction to entertain <\/p>\n
    the claims.     The defendant no.1 has relied upon the judgments in <\/p>\n
    this respect to urge that the Court at Cuttack therefore would have <\/p>\n
    only   jurisdiction.     I   do   not   find   it   necessary   to   refer   to   all   those <\/p>\n
    rulings   cited   by     both   the   sides   as   judgment   of   Hon’ble   Supreme <\/p>\n
    Court   reported   at   1971   (1)   SCC   286  (Hakam   Singh   .vs.   M\/s.\n<\/p>\n
    Gammon   (India)   Ltd.)  clearly   covers   this   controversy.       The   said <\/p>\n
    judgment states that it is not open to the parties to confer by their <\/p>\n
    agreement, jurisdiction on a court which it does not possess.  When <\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                              12<\/span><\/p>\n
    there   are   two   courts     possessing   jurisdiction   to   try   the   suit,   by <\/p>\n
    agreement between the parties that dispute may be tried in one of <\/p>\n
    such courts and such agreement is not contrary to public policy.  Such <\/p>\n
    an   agreement   therefore   does   not   contravene     Section   28   of   the <\/p>\n
    Contract Act.  Here the defendant no.1 has got its registered Office at <\/p>\n
    New Delhi and plant at Narendrapur, Meramandli, District Dhenkanal <\/p>\n
    in   Orissa    State.     There   is   nothing   on   record   to   show   that   the <\/p>\n
    defendant no.1 has got any establishment in Cuttack distict of Orissa.\n<\/p>\n
    Though the defendant no.1 has urged that correspondence was made <\/p>\n
    from   Cuttack,   again   there   is   absolutely   nothing   to   support   this <\/p>\n
    contention.   In any case when plant is not in Cuttack  District and <\/p>\n
    Registered Officer is at New Delhi, it is apparent that for filing such a <\/p>\n
    suit against the defendant no.1 Company, Cuttack Court will never <\/p>\n
    have jurisdiction.  I, therefore, find that  the trial Court has correctly <\/p>\n
    appreciated   this   controversy   and   there   is   nothing   wrong   with   the <\/p>\n
    same.   The contention that this raises a disputed question of fact, is <\/p>\n
    again without any merit.\n<\/p>\n
    9.             To   urge   that   suit   does   not   contain   statement   and <\/p>\n
    declaration as required by Order 37,  and to support the argument of <\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                              13<\/span><\/p>\n
    mis-joinder, defendant no.1 has relied upon the judgment of learned <\/p>\n
    Single Judge of this Court reported at 1999 [3] Mh.L.J. 64 (Mafatlal <\/p>\n
    Finance   Limited   Mumbai   .vrs.   Express   Industrial   Services   Pvt.   Ltd.\n<\/p>\n
    Mumbai).   To   point   out   that   the   affidavit   in   support   of   plaint   is <\/p>\n
    defective,   reliance   is   being   placed   upon   the   judgment   reported   at <\/p>\n
    (2007)   1   SCC   341   (Baldev   Singh   .vrs.   Shinder   Pal   Singh   and <\/p>\n
    another).    Plaintiff   has   urged   that   these   defects   are   curable   and <\/p>\n
    reliance is being  placed upon the judgment of Delhi High Court in <\/p>\n
    case   of  Khemchand   and   others   .vrs.   State   and   others      in <\/p>\n
    F.A.O.No.241-43\/2005 decided on 17.05.2010 by the learned Single <\/p>\n
    Judge.  Decision in case of  Kailash Singh .vrs. Hiralal Dey of Gauhati <\/p>\n
    High Court (learned Single Judge) decided on 30.03.1993 and the <\/p>\n
    judgment   of   Hon’ble   Apex   Court   in   case   of  Vidyawati   Gupta   and <\/p>\n
    others .vrs. Bhakti Hari Nayak and others   dated 03.02.2006 where <\/p>\n
    the Hon’ble Apex Court has found that  amendment to Order VI Rule <\/p>\n
    15   being procedural in nature, is directory and non-compliance with <\/p>\n
    it does not automatically render the plaint nonest are also pressed <\/p>\n
    into   service..       View   of   Calcutta   High   Court   to   the   contrary   was <\/p>\n
    therefore,   set   aside     by   the   Apex   Court.   The   judgment   of   Hon’ble <\/p>\n
    Apex   Court   in   Baldev   Singh   .vrs.   Shinder   Pal   Singh   and   another <\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                              14<\/span><\/p>\n
    (supra) reveals that a factual averment made cannot be both, true to <\/p>\n
    the knowledge and belief of deponent.   When the plaint as filed is <\/p>\n
    perused, in this respect, after prayer clause it is directly supported by <\/p>\n
    affirmation   as   required   by   Order   VI   Rule   15[4]   of   Code   of   Civil <\/p>\n
    Procedure.   Between prayer clause and this affirmation, verification <\/p>\n
    as   contemplated   by   Order   VI   Rule   15[c]   is   missing.     During <\/p>\n
    arguments it became clear that the representative for plaintiff did not <\/p>\n
    understand this position.  But, then the affirmation filed is only with <\/p>\n
    intention   to   support   the  statement   of   facts   made   in   plaint.     The <\/p>\n
    affirmation   does   not   specify   separately,   the   facts   true   to   personal <\/p>\n
    knowledge of the deponent and true to his belief. But these defects <\/p>\n
    are   only   procedural   in   nature   and   plaintiff   needs   to   be   given   an <\/p>\n
    opportunity   to   rectify   it.     Accordingly,   the   learned   Trial   Court   is <\/p>\n
    directed to give plaintiff before it, necessary reasonable opportunity <\/p>\n
    to rectify these defects.\n<\/p>\n
    10.          At   this   stage,   I   find   it   appropriate   to   consider   the <\/p>\n
    contentions about form of summary suit.    Mafatlal Finance Limited <\/p>\n
    Mumbai .vrs. Express Industrial Services Pvt. Ltd. Mumbai (supra)  is <\/p>\n
    the judgment of learned Single Judge of this Court which holds that <\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                              15<\/span><\/p>\n
    when claim for interest made in summary suit is not based on any <\/p>\n
    agreement or any enactment, suit cannot be entertained as summary <\/p>\n
    suit   and   hence   unconditional   leave   to   defend   was   given   to   that <\/p>\n
    defendant.  The observations at the end of paragraph no.4 show that <\/p>\n
    the plaintiff has to aver in plaint that no relief not falling within the <\/p>\n
    ambit of Order 37 Rule 2 is claimed by him, the learned Single Judge <\/p>\n
    found that the claim for interest in that suit was not based on any <\/p>\n
    agreement and  not supported by any enactment.  It is further found <\/p>\n
    that contention of plaintiff there, that provisions of  Interest Act bring <\/p>\n
    the   claim   made   therein   within   the   four   corners   of   Order   37  was <\/p>\n
    matter of investigation.   The learned Single Judge has relied upon <\/p>\n
    Division  Bench judgment reported     at M\/s Randerian & Singh vs. <\/p>\n
    Indian   Overseas   Bank   and   later   Full   Bench   of   this   Court   has   not <\/p>\n
    followed this view. As the plaintiff has not touched this aspect at all & <\/p>\n
    as   defendant   1   has   not   pointed   out   the   Full   Bench   view,   I   am <\/p>\n
    reproducing   essential   observations   therein.   Said   Full   Bench   also <\/p>\n
    refers to two other Division Bench views which have bearing on the <\/p>\n
    issue.\n<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                              16<\/span><\/p>\n
    11.     In AIR 2004 Bom 186 “SICOM Ltd. v. Prashant S. Tanna<\/a>” ,   <\/p>\n
    ( Full Bench )  controversy was :-\n<\/p>\n
               “2. The earlier Full Bench on 25th November, 2003, <\/p>\n
               framed,   for   convenience,   the   following   four
\n               questions of law:-\n<\/p><\/blockquote>\n
               (i) Whether the provisions of Order XXIII, Rule 1 of  <\/p>\n
               the Code of Civil Procedure, 1908 can be invoked  <\/p>\n
               while exercising powers under Order XXXVII of the
\n               Code of Civil Procedure and deciding a summons for  <\/p>\n
               judgment\/application   for   leave   to   defend   a
\n               summary suit instituted under Order XXXVII, Rule
\n               1(2) thereof?\n<\/p><\/blockquote>\n
               (ii) Whether third option of abandoning a part of  <\/p>\n
               the   claim   in   a   summary   suit   is   available   to   a
\n               plaintiff   at   the   hearing   of   the   summons   for
\n               judgment   or   the   options   set   out   in   two   Division <\/p>\n
               Bench judgments of this Court in M\/s. Randerian
\n               and Singh v. Indian Overseas Bank and Hydraulic
\n               and General Engineering v. UCO Bank (1998 (1) LJ  <\/p>\n<\/blockquote>\n
               793) are exhaustive?\n<\/p><\/blockquote>\n
               (iii) Whether the Division Bench decision in Ajcon
\n               Capital Markets Limited v. Maya Rasayan Limited<\/a>
\n               granting   a   third   option   as   aforesaid   is   in   accord  <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                               17<\/span><\/p>\n
               with   the   summary   procedure   prescribed   by   Order
\n               XXXVII of Code of Civil Procedure?\n<\/p><\/blockquote>\n
               (iv)   When   at   the   hearing   of   a   summons   for
\n               judgment, the Court finds that a part of the claim in  <\/p>\n
               the summary suit, falls outside the scope of Order
\n               XXXVII of the Code of Civil Procedure, 1908, what
\n               are the options available to the plaintiff and what  <\/p>\n
               powers can the Court exercise?”\n<\/p><\/blockquote>\n
    And the Hon’ble  Full Bench of this Court has held :–\n<\/p>\n
              “12. In other words, a distinction must be drawn  <\/p>\n
              between   the   sustainability   of   a   claim   and   the  <\/p>\n
              maintainability   of   the   action   as   a   summary   suit.
\n              The   negation   of   the   former   does   not   entail   the
\n              negation   of   the   latter.   A   suit   can   be   said   to   fall  <\/p>\n
              outside the ambit of Order XXXVII only if the relief
\n              claimed therein is based on an action the nature of
\n              which  does not fall  within  the classes  specified  in <\/p>\n
              Order XXXVII, Rule 1(2). A relief cannot be said to
\n              fall   outside   the   ambit   of   Order   XXXVII,   Rule   2
\n              merely because the quantum thereof is excessive, so
\n              long   as   the   nature   of   the   relief   falls   within   the
\n              clauses specified in Order XXXVII, Rule 1(2).\n<\/p><\/blockquote>\n
                                                            ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                      18<\/span><\/p>\n
      13.   If   the   quantum   of   the   claim   in   suit   is   not
\n      sustainable it is but a factor to be considered by the  <\/p>\n
      Judge while deciding and passing an order on, the
\n      summons for judgment. The tests for the exercise of  <\/p>\n
      jurisdiction while passing an order on a summons
\n      for judgment have been settled in a plethora of cases
\n      including of the Apex Court. In this reference, we are  <\/p>\n
      not concerned with the same.\n<\/p>\n
      14. We will now assume that when a part of the  <\/p>\n
      claim is not warranted by a statutory provision or
\n      by the contractual  document on which the suit is  <\/p>\n
      based,   the   suit   must   be   one   which   cannot   be
\n      accepted as a summary suit as held in Randerian’s  <\/p>\n
      case. Even so, we are also unable to agree with the
\n      ratio in Randerian’s case that in such an eventuality  <\/p>\n
      only one of two consequences must follow viz. either
\n      to grant unconditional leave to defend or to permit  <\/p>\n
      the plaintiff to withdraw the summons for judgment
\n      with   leave   to   file   a   fresh   summons   for   judgment
\n      after amending the plaint. Nor are we able to agree
\n      with the further ratio that “Recording of a statement  <\/p>\n
      to give up or accept reduced interest is not sufficient.\n<\/p>\n
      21.  We  are  also  in  respectful   agreement  with  the
\n      judgment in Ajcon’s case which holds that in such a
\n       case   there   are   not   merely  two
\n                                              options   as   held   in
\n      Randerian’s case. We are unable to see any purpose  <\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                      19<\/span><\/p>\n
      in driving a plaintiff to first withdraw the summons
\n      or judgment, thereafter amend his plaint and finally  <\/p>\n
      take   out   a   fresh   summons   for   judgment.   Such   a
\n      course   serves   no   useful   purpose   whatsoever.   The  <\/p>\n
      same result can be achieved by the plaintiff merely
\n      making   a   statement   at   the   bar.   To   amend   the
\n      plaint,   the   plaintiff   would   be   required   under   the  <\/p>\n
      rules to take out a chamber summons which itself
\n      would take a few years to be decided. Thereafter, the  <\/p>\n
      plaintiff would necessarily have to go through the
\n      procedure   of   taking   not   a   fresh   summons   for <\/p>\n
      judgment.   Such   a   cumbersome   course   is   not
\n      mandated by any of the provisions of the C.P.C. The <\/p>\n
      defendant   cannot   possibly   be   prejudiced   if   the
\n      plaintiff   is   not   made   to   suffer   such   a   labourious,  <\/p>\n
      time-consuming   and   cumbersome   procedure.   Mr.
\n      Zaiwalla   was   unable   to   indicate   any   reason   why <\/p>\n
      such a course should be adopted except stating that
\n      if it were not so it would encourage plaintiffs to take
\n      a chance by making unsustainable claims in the first
\n      instance.   The   reasoning   does   not   appeal   to   us   as  <\/p>\n
      justifying a conclusion in law contrary to the true
\n      construction of Order XXXVII.”\n<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                                20<\/span><\/p>\n
    It   is   also   held   that   said   Court   can   grant   unconditional   leave   to <\/p>\n
    defendant for some part of claim and conditional leave for remaining <\/p>\n
    part.   However, the Full Bench judgment no where expressly states <\/p>\n
    and does not notice the view of the learned Single Judge reported at <\/p>\n
    Mafatlal   Finance   Limited   Mumbai   .vrs.   Express   Industrial   Services <\/p>\n
    Pvt. Ltd. Mumbai (supra). Conclusions of Hon’ble Full Bench are :-\n<\/p>\n
                 “28. In the circumstances, we summarise the answer <\/p>\n
                 to the reference as follows:\n<\/p><\/blockquote>\n
                 (1) The judgments in M\/s. Randerian and Singh v.
\n                 Indian Overseas Bank and Hydraulic and General  <\/p>\n
                 Engineering   v.   UCO   Bank   (1998)   1   LJ   793   are
\n                 overruled.   The   suit   would   be   maintainable   as   a  <\/p>\n
                 summary suit if it falls within one of the classes of
\n                 suits enumerated in Order XXXVII, Rule 1(2) even if <\/p>\n
                 the claim made therein is not properly quantified or
\n                 is in excess of what the plaintiff is entitled to.
\n                 (2) In a summary suit filed under Order XXXVII of  <\/p>\n
                 the   C.P.C.   the   plaintiff   is  entitled   at  any   time  to
\n                 abandon or give up a part of the claim unilaterially.
\n                 This, the plaintiff may do by making a statement to
\n                 be recorded by the Court and without the necessity
\n                 of the plaintiff making a formal application for the
\n                 same by withdrawing the summons for judgment,  <\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                            21<\/span><\/p>\n
              amending   the   plaint   and   thereafter   taking   out   a
\n              fresh summons for judgment or otherwise.\n<\/p><\/blockquote>\n
              (3) At the hearing of the summons for judgment, it
\n              will be open to the Court to pass a decree for a part  <\/p>\n
              of   the   claim   and   grant   unconditional   leave   to
\n              defend the suit in respect of rest of the claim.
\n              (4) At the hearing of the summons for judgment, it  <\/p>\n
              is open to the Court to grant conditional leave to
\n              defend   in   respect   of   a   part   of   the   claim   and  <\/p>\n
              unconditional   leave   to   defend   for   the   remaining
\n              part of the claim. In such an order it would follow  <\/p>\n
              that in the event of the Defendant failing to comply
\n              with the condition, he would suffer the consequences  <\/p>\n
              mentioned in Order XXXVII qua only that part of
\n              the claim for which conditional leave to defend has  <\/p>\n
              been granted and not in respect of that part of the
\n              claim   for   which   unconditional   leave   has   been  <\/p>\n
              granted.”\n<\/p><\/blockquote>\n
    12.        Thus, merely because demand for interest is not supported <\/p>\n
    either by the document or by the law, Suit here does not cease to be a <\/p>\n
    summary suit. But then the plaintiff has not made any request for <\/p>\n
    amendment either before the Trial Court or before this Court and has <\/p>\n
    not expressed readiness and willingness to abandon any part of the <\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                             22<\/span><\/p>\n
    claim.  Moreover, as already pointed out above, plaint as filed seeks <\/p>\n
    joint   and   several   relief   against   defendant   no.1   Company   and <\/p>\n
    defendant  no.2  Shri   Sinha.    Shri  Sinha   is   stated  to  be   its   General <\/p>\n
    Manager.  When purchase orders are placed by company and contract <\/p>\n
    is with Company, it is clear that there cannot be any other contract or <\/p>\n
    independent   contract   with   Shri   Sinha,   General   Manager.     On   the <\/p>\n
    strength of the contract, the relief in summary suit could have been <\/p>\n
    asked for only against defendant no.1 Company. Even if Shri Sinha is <\/p>\n
    treated as General Manager, then also relief will have to be against <\/p>\n
    the Company only. However, prayer clause in plaint expressly seeks a <\/p>\n
    joint and several decree against both the defendants.  If the decree is <\/p>\n
    envisaged against only Company, it cannot be viewed as joint and <\/p>\n
    several.  The representative for plaintiff and defendant no.1 have not <\/p>\n
    raised any specific contentions about this nature of relief claimed.  It <\/p>\n
    is important to note that defendant no.1 alone has filed Writ Petition <\/p>\n
    No.5664\/2010  and  defendant  no.2  Shri  Sinha   has   not  approached <\/p>\n
    this Court in the matter.\n<\/p>\n
    13.          The defendant no.1 has relied upon judgment of learned <\/p>\n
    Single   Judge   of   Calcutta   High   Court   reported   at   AIR   1974   Cal.6 <\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                              23<\/span><\/p>\n
    (Madan Mohan Sureka .vrs. Bhavani Cinema and others) where view <\/p>\n
    taken   is,   only   person   whose   name   appears   in   Hundi   can   be   sued <\/p>\n
    under Order 37 Rule 2.  The Hundi there was by the Firm and one of <\/p>\n
    its partners was joined as party defendant though his name did not <\/p>\n
    figure   in   Hundi.     Learned   Single   Judge   found   that   whether   such <\/p>\n
    person was or was not a partner of the Firm, is a question   which <\/p>\n
    required investigation and therefore, granted unconditional leave to <\/p>\n
    defend.  Here though position of defendant no.2 as General Manager <\/p>\n
    of defendant no.1 Company is not in dispute, the prayer made for <\/p>\n
    joint   and   several   decree   creates   an   impression   that   Shri   Sinha   is <\/p>\n
    sought to be made responsible personally.  If defendant no.2 is to be <\/p>\n
    made responsible in his official capacity as General Manager, decree <\/p>\n
    could   have   been   asked   only   against   defendant   no.1   Company   and <\/p>\n
    there was no need to seek joint and several decree against both.   The <\/p>\n
    addition of defendant no.2 and relief sought against him, therefore, <\/p>\n
    shows that the suit as filed is not squarely covered by Order 37 Rule 2 <\/p>\n
    of Civil Procedure Code.\n<\/p>\n
    14.          If any claim for interest was to be given up or any other <\/p>\n
    amendment in plaint was to be prayed, the request for same could <\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                               24<\/span><\/p>\n
    have   been   made   to   the   trial   Court   before   it   passed   the   impugned <\/p>\n
    order.   In any case that request could have been made to this Court <\/p>\n
    when matters were  heard on 21.12.2010 to 23.12.2010.  There is no <\/p>\n
    such request by the plaintiff.  As I have found that grant of decree in <\/p>\n
    summary suit against defendant no.2 Shri Sinha, is not possible, it is <\/p>\n
    not necessary for this court to proceed to appreciate the grievance of <\/p>\n
    plaintiff in the light of Section 55 of the Contract Act and provisions <\/p>\n
    of Sections 41 and 42 of the Sale of Goods Act.  That consideration <\/p>\n
    would   have   been   relevant   only   in   case   of   entire   grievance   in   Suit <\/p>\n
    falling under provisions of Order 37.  Various judgments are cited by <\/p>\n
    the   plaintiff   through   her   authorized   Attorney   to   substantiate   that <\/p>\n
    contention.  I, have only mentioned those judgments for the purpose <\/p>\n
    of record.  Those judgments are –\n<\/p>\n
    (1)          Caltex [India] Ltd. .vrs. Bhagwan Devi Marodia
\n                 (By Hon’ble Apex Court reported at
\n                 AIR 1969 SC 405)<\/p>\n
    (2)          Superintending Engineer .vrs. Patibandla Radhkrishna
\n                 Murthy of Andhra Pradesh High Court reported
\n                 at 1996 [3] ALT 1137.\n<\/p>\n
    (3)          Shah Mohanlal Manilal .vrs. Firm Running in the
\n                 Name and Style of Dhirubhau Bavajibhai by Gujarat
\n                 High Court, reported at AIR 1962 Guj. 56.\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                               25<\/span><\/p>\n
    (4)          Lohmann Rausher Gmbh .vrs. Medisphere Marketing <\/p>\n
                 Pvt. Ltd. by Delhi High Court reported at
\n                 117 [2004] DLT 95<\/p>\n
                 Consideration   of   these   judgments   relied   upon   by   the <\/p>\n
    plaintiff   is   not   essential   at   this   stage   because   of   finding   already <\/p>\n
    reached above and also to avoid any prejudice to cause\/defence of <\/p>\n
    defendant no. 2 Shri Sinha. .\n<\/p>\n
    15.          Defendant no.1 has relied upon judgment reported at AIR <\/p>\n
    1993 SC 352 (R.N. Gosain .vrs. Yashpal Dhir)  to urge that plaintiff <\/p>\n
    cannot be allowed to approbate or reprobate.  However, I do not find <\/p>\n
    any approbation or reprobation by plaintiff  on record at-least against <\/p>\n
    the defendant no.1.  Defendant no.1 has also relied upon the Division <\/p>\n
    Bench judgment of this Court reported at 2007 [3] Mh.L.J. 8 (Ravi <\/p>\n
    Prakash Khemka and another .vrs. Bank of India and others), wherein <\/p>\n
    Division Bench of this Court found that when defence raised was not <\/p>\n
    a   moonshine,   defendant   was   entitled   to   unconditional   leave   to <\/p>\n
    defend.   (1998) 5 SCC 354 (Sunil Enterprises and another .vrs. SBI <\/p>\n
    Commercial and  International Bank Ltd.) is the judgment of Hon’ble <\/p>\n
    Apex Court which follows the earlier judgment reported at AIR 1977 <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                               26<\/span><\/p>\n
    SC 577 (Mechelec Engineers & Manufacturers .vrs. Basic Equipment <\/p>\n
    Corp.).   The learned Single Judge of this Court in 2010 [4] Mh.L.J.\n<\/p>\n
    294 (Harilal and Co., Mumbai .vrs. Gammon India Ltd. Mumbai) has <\/p>\n
    followed this judgment of Hon’ble Apex Court.\n<\/p>\n
    16.          The defence of defendant no.1 that material supplied to it <\/p>\n
    was   of   inferior   quality   now   needs   to   be   looked   into.     While <\/p>\n
    considering this defence at this stage it is necessary to remember that <\/p>\n
    joint and several decree is asked for against defendants no.1 and 2 <\/p>\n
    together. Defendant no.2 with conditional leave to defend, has   not <\/p>\n
    filed any proceeding against the impugned order before this Court.\n<\/p>\n
      Purchase   orders   clearly   show   that   quality   of   material   was   to     be <\/p>\n
    inspected by the  defendant no.1 at it’s site at MeraMundali.   Each <\/p>\n
    supply was to be accompanied by test certificate and accordingly it is <\/p>\n
    not   in   dispute   that   supply   made   by   the   plaintiff   satisfied   these <\/p>\n
    requirements.     The   first   grievance   authentically   made   by   the <\/p>\n
    defendant no.1 about inferior quality of supply is 03.03.2009.  There <\/p>\n
    is   dispute   between   the   parties   about   the   earlier   letter   dated <\/p>\n
    28.02.2009 written in this respect by the defendant no.1 to plaintiff.\n<\/p>\n
    According to the plaintiff that letter is received after e-mail reply to <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                               27<\/span><\/p>\n
    notice dated 03.03.2009.  Perusal of this reply dated 28.02.2009 and <\/p>\n
    reply to legal notice dated 03.03.2009 does not reveal that there is <\/p>\n
    much difference between the two.   The supplies have been effected <\/p>\n
    by the plaintiff from 24.11.2007 till 09.06.2008 and that was without <\/p>\n
    any protest. First  supply order was for 50 M.T. Of magnetite powder.\n<\/p>\n
    Second was for 100 M.T., third one as for 200 M.T., fourth one was <\/p>\n
    for 400 M.T., 5th  one was for 500 M.T., while last one was of 1700 <\/p>\n
    M.T.  The details of compliance is also placed on record by showing <\/p>\n
    break   up   of   each   supply   with   bill   number,   bill   amount,   date   of <\/p>\n
    payment   etc.     In   reply   to   legal   notice   sent   by   the   defendant   no.1 <\/p>\n
    under  signature  of  defendant  no.2,  defence  taken   is  supplies   were <\/p>\n
    accepted   on   the   strength   of   test   reports   given   by   the   plaintiff.\n<\/p>\n
    Because of the mal-functioning in their factory, defendant no.1 was <\/p>\n
    advised   to   check   quality   of     Magnetite   Powder   and   hence <\/p>\n
    incorrectness of test reports given by the plaintiff came to light.   This <\/p>\n
    reply does not give any details date wise in this respect.   3 samples <\/p>\n
    are stated to be tested and reply further shows acceptance of total bill <\/p>\n
    amount,   as   also   total   outstanding   amount.     Amount   of   Rs.\n<\/p>\n
    18,10,280\/- is then deducted on account of poor quality and balance <\/p>\n
    of   Rs.   16,17,615\/-   is   adjusted   against   loss.     Though   in   alleged <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                              28<\/span><\/p>\n
    communication   dated   28.02.2009   these   losses   are   stated   to   be <\/p>\n
    approximately 20 Crores, E-mail reply notice  dated 3\/3\/2009 does <\/p>\n
    not show any adjustment or definite quantification of claim towards <\/p>\n
    damages.  The test reports of defendant no.1 showing less percentage <\/p>\n
    of   Magnetite   and   dated   12.08.2008,   20.08.2008,   01.08.2008   and <\/p>\n
    11.09.2008. When test on quality were  agreed at end of defendants, <\/p>\n
    acceptance & use of material and then  story of malfunctioning for <\/p>\n
    fairly   long   period     all   prima   facie   appear   doubtful   and   lacking <\/p>\n
    bonafides. Deduction from all supplies on the basis of 3 such quality <\/p>\n
    checks   or   third   party   checks   also   creates   some   element   of   doubt.\n<\/p>\n
    However,   this   can   not   be   finally   concluded   here   in   present   facts <\/p>\n
    against defendant 2.\n<\/p>\n
    17.          In this situation, I find that the conditional leave to defend <\/p>\n
    granted   by   the   trial   Court   to   defendant   no.1   [petitioner     in   Writ <\/p>\n
    Petition No. 5664 of 2010] does not call for any interference.   The <\/p>\n
    said Court has looked into the necessary aspects and objections to its <\/p>\n
    jurisdiction  about mis-joinder and also about the alleged supply of <\/p>\n
    inferior quality of Magnetite Powder.  I do not find any jurisdictional <\/p>\n
    error or perversity   in that approach, in so far as the challenge by <\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span>
\n                                            29<\/span><\/p>\n
    defendant   no.1   is   concerned.       The   defendant   no.1   has   already <\/p>\n
    furnished   Bank   guarantee   as   directed   by   the   trial   Court   and   in <\/p>\n
    present   circumstances,   the   said   direction   cannot   be   viewed   as <\/p>\n
    uncalled for.   I do not find any substance  in  the  effort of learned <\/p>\n
    counsel for defendant no.1 to urge that recourse to provisions [e] as <\/p>\n
    given in paragraph no.8 of the judgment of Hon’ble Apex Court   in <\/p>\n
    case of   Mechelec Engineers & Manufacturers .vrs. Basic Equipment <\/p>\n
    Corp. (supra) is unjustified.\n<\/p>\n
    18.         In   view   of   these   observations   and   findings,   both   the <\/p>\n
    Petitions are dismissed.  No costs.\n<\/p>\n
                                                                       JUDGE<\/p>\n
    Rgd.\n<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 16:44:18 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Mr. S.K. Agrawal vs Mrs. Varsha A. Maheshwari on 5 January, 2011 Bench: B. P. Dharmadhikari 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION Nos. 5664 & 5364 OF 2010. ……… WRIT PETITION No. 5664 OF 2010. M\/s. Bhushan Steel Limited, having its Registered Office at […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-211764","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMr. S.K. Agrawal vs Mrs. Varsha A. Maheshwari on 5 January, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mr. S.K. Agrawal vs Mrs. Varsha A. Maheshwari on 5 January, 2011 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2011-01-04T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2017-10-13T21:28:31+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"28 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Mr. S.K. Agrawal vs Mrs. Varsha A. Maheshwari on 5 January, 2011\",\"datePublished\":\"2011-01-04T18:30:00+00:00\",\"dateModified\":\"2017-10-13T21:28:31+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011\"},\"wordCount\":5387,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Bombay High Court\",\"High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011\",\"name\":\"Mr. S.K. Agrawal vs Mrs. Varsha A. Maheshwari on 5 January, 2011 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\"},\"datePublished\":\"2011-01-04T18:30:00+00:00\",\"dateModified\":\"2017-10-13T21:28:31+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Mr. S.K. Agrawal vs Mrs. Varsha A. Maheshwari on 5 January, 2011\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"contentUrl\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\"},\"sameAs\":[\"https:\\\/\\\/www.facebook.com\\\/LegalindiaCom\\\/\",\"https:\\\/\\\/x.com\\\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"url\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\\\/\\\/www.legalindia.com\",\"https:\\\/\\\/x.com\\\/legaliadmin\"],\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/author\\\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Mr. S.K. Agrawal vs Mrs. Varsha A. Maheshwari on 5 January, 2011 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011","og_locale":"en_US","og_type":"article","og_title":"Mr. S.K. Agrawal vs Mrs. Varsha A. Maheshwari on 5 January, 2011 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"2011-01-04T18:30:00+00:00","article_modified_time":"2017-10-13T21:28:31+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"28 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"Mr. S.K. Agrawal vs Mrs. Varsha A. Maheshwari on 5 January, 2011","datePublished":"2011-01-04T18:30:00+00:00","dateModified":"2017-10-13T21:28:31+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011"},"wordCount":5387,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["Bombay High Court","High Court"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011","url":"https:\/\/www.legalindia.com\/judgments\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011","name":"Mr. S.K. Agrawal vs Mrs. Varsha A. Maheshwari on 5 January, 2011 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"2011-01-04T18:30:00+00:00","dateModified":"2017-10-13T21:28:31+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/mr-s-k-agrawal-vs-mrs-varsha-a-maheshwari-on-5-january-2011#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"Mr. S.K. Agrawal vs Mrs. Varsha A. Maheshwari on 5 January, 2011"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/211764","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=211764"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/211764\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=211764"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=211764"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=211764"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}