Final Order 1

Order Details: Other
Pdf Text: MHCC010000112018 Presented on 01/01/2018
Registered on 01/01/2018
Decided on 30/01/2025
Duration 7 years 29 days
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 1 OF 2018
IN
SUMMARY SUIT NO. 594 of 2017
Mrs. Taraben Juharmal Shah (Jain) ]
an adult, aged 68 years ]
residing at 22/24, 2nd Floor, ]
Singapore Building, Vithalwadi, ]
Champa Gali X Lane, Mumbai-400 002 ]
through her constituted attorney ]
Shru Dilipkumar Juharmal Shah ]
aged 46 years. ]...Plaintiff
Versus
Mrs. Sushilaben Sureshkumar Shah ]
an adult aged 66 years ]
residing at 408, 4th Floor, Saraf Mansion ]
Building No.32, Princess Street, ]
Princess Co-op Housing Society, ]
Mumbai-400 002. ]...Defendant
Appearance:-
Ld. advocate Mr. Ramesh Jain for plaintiff.
Ld. advocate Mr. Roshan Bamane for defendant.
-- 1 of 5 --
2 SJ No.01/2018 in
Sum Su No.594/2017
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 30/01/2025.
ORDER
( Dictated and pronounced in open Court)
01] Plaintiff has filed summons for judgment against
defendant. Defendant has filed affidavit in reply to the summons for
judgment and resisted it and prayed for dismissal of summons for
judgment.
02] As per the plaintiff, he has filed present suit as a Power of
Attorney of Mrs. Taraben Juharmal Shah (Jain). Plaintiff advanced an
amount of Rs. 2,00,000/- each on 02/04/2014 and 03/04/2014 total
amounting to Rs.4,00,000/- by cheques to defendant. Further,
defendant agreed to repay said amount with interest at the rate of 12%
p.a. Plaintiff to support his contention has filed photocopy of Bank
Passbook. It is his further contention that defendant failed and
neglected to repay the said amount. Therefore, he issued legal notice
dated 18/11/2016 which is received by the defendant, however, she
failed to repay the said amount. Therefore, plaintiff is entitled for
principal amount with interest from defendant. It is further submitted
that defendant has not raised any substantial defence or triable issue.
Therefore defendant is not entitled for leave to defend the suit. Hence,
summons for judgment may be allowed.
03] On the other hand, it is submitted on behalf of defendant
that present suit is not maintainable under Order 37, Rule 2 of Civil
Procedure Code as there is no written contract between the plaintiff and
defendant. The plaintiff has filed suit merely on the basis of photocopy
of his Bank Passbook. There is no agreement in respect to repayment of
-- 2 of 5 --
3 SJ No.01/2018 in
Sum Su No.594/2017
alleged amount with interest at the rate of 12% p.a. Even, POA filed by
the plaintiff is not properly executed. The plaintiff is a Money Lender
however, he has not filed any documents in support of said contention.
Defendant has neither approached the plaintiff nor plaintiff has
advanced an amount of Rs. 4,00,000/- by cheques as contended. The
defendant has not admitted any liability. Hence, defendant is entitled
for unconditional leave to defend the suit. Hence, summons for
judgment may be dismissed with costs.
04] Perused summons for judgment, reply by defendant and
documents filed by the plaintiff. Heard both the parties. It is the
contention of the plaintiff that he has advanced total amount of
Rs. 4,00,000/- by cheque to the defendant on 02/04/2014 and
03/04/2014. Further, in order to support his contention, he has filed
photocopy of his Bank Pass Book vide List Exh. 6/2. It is pertinent to
note that plaintiff has not filed original Pass Book on record. In view of
settled position as laid down in Neebha Kapoor Vs. Jayantilal
Khandwala and others, AIR 2008 SC 1117 wherein, Hon'ble Apex Court
has observed that, '
at the time of hearing summons for judgment,
plaintiff has to file original documents.' Therefore, the photocopy of
passbook cannot be considered at this stage.
05] Further, it is the contention of plaintiff that as defendant
has failed to repay the said amount he has issued notice dated
18/11/2016 to defendant by RPAD. The plaintiff to support his
contention has filed office copy of notice along with original postal
receipt and original Acknowledged card on record vide list Exh. 6/3 and
6/4. On perusing said documents, it appears that said notice is received
by defendant however, there is nothing on record to show that
defendant has replied to said notice.
-- 3 of 5 --
4 SJ No.01/2018 in
Sum Su No.594/2017
06] It is pertinent to note that plaintiff has not filed any written
agreement executed between plaintiff and defendant to show that
defendant has borrowed an total amount of Rs.4,00,000/- from plaintiff
and agreed to repay with interest @ 12% p.a. Therefore, the plaintiff
has to prove whether present suit is maintainable under Order 37, Rule
2 of C.P.C. The defendant has raised issue that plaintiff is a Money
Lender. The defendant has to prove the said fact by adducing evidence
on record. Defendant has not admitted any liability. Thus, it appears
that defendant has raised substantial defence that suit is not
maintainable as there is no written agreement and triable issues that
plaintiff is money lender. It needs adjudication and party has to lead
evidence. Even, plaintiff has not filed all original documents on record.
Therefore, I am of the view that defendant is entitled to unconditional
leave to defend the suit. Hence, I proceed to pass following order :-
ORDER
1) Summons for judgment No.1/2018 in Summary Suit No.
594/2017 is disposed off as follows:
(a) Defendant is granted unconditional Leave to defend the suit
and directed to file written statement on or before next date.
2) No order to costs.
3) Summons for judgment No.1/2018 is disposed off accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date: 30/01/2025 Court Room No.81
Dictated on : 30/01/2025.
Corrected & signed on :31/01/2025.
-- 4 of 5 --
5 SJ No.01/2018 in
Sum Su No.594/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
31/01/2025 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 30/01/2025
JUDGMENT/ORDER signed by P. O. on 31/01/2025
JUDGMENT/ORDER uploaded on 31/01/2025
-- 5 of 5 --