Final Order 1

Order Details: Other
Pdf Text: MHCC010004912019 Presented on 14/01/2019
Registered on 14/01/2019
Decided on 10/07/2026
Duration 07Y: 05M: 27D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 19 OF 2019
IN
SUMMARY SUIT NO. 163 OF 2021
Mr. Kiran Haribhau Kuchekar
Age: 41 years, Occ: Service,
Indian Inhabitant, residing at
5/41, B.I.T. Chawl, 2nd Floor,
Baburao More Marg (Belasis Road),
Mumbai Central, Mumbai – 400008. ...Plaintiff
VERSUS
1) Mrs. Anjana Suresh Kosambia
wd/o. Suresh Khushalbhai Kosambia,
Age: 48 years, Occ. Service, Indian Inhabitant.
2) Mr. Mehul Suresh Kosambia
s/o. Late Suresh Khushalbhai
Kosambia, aged about 25 years,
Occ.: Student, Indian Inhabitant.
3) Ms. Shivani Suresh Kosambia
s/o. Late Suresh Khushalbhai
Kosambia, aged about 22 years,
Occ.Student, Indian Inhabitant.
Above 1 to 3 residing at 202, 2nd Floor,
Ramdarshan C.H.S. Ltd., Keshavrao Kadam
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Marg, Mumbai Central, Mumbai – 400008.
Mob: 9619897818/8879018537 ...Defendants
Appearance:
Adv. Mahesh N. Devlekar for plaintiff.
Adv. G. A. Patil for defendants.
CORAM : SMT. VIDYA G. UPADHYE
C. R. NO. : 81
DATE : 10/07/2026
O R D E R
This Summons for Judgment is filed on 10/01/2019 for a
claim of a sum of 6,00,000/- plus interest of 2,29,060/- calculated at	₹ ₹
the rate of 18% per annum on the principal amount from the date
01/07/2016 till 14/08/2018 and future interest at the same rate from
the date of the suit till realization of the amount. The defendant has
filed affidavit-in-reply/application for leave to defend on 28/01/2019 to
the summons for judgment upon its service on her within stipulated
period of 10 days and resisted it and prayed for granting unconditional
leave to defend the suit.
2] Bereft of unnecessary details, the claim of the plaintiff in
the suit as well as Summons for Judgment is that, defendant No.1 is the
widow of late Suresh Khushalbhai Kosambia and defendant Nos. 2 and
3 are his children. Mr. Suresh Kosambia had executed an Agreement of
Leave and License in respect of Room No.203, on the 2nd Floor of
Ramdarshan C.H.S. Ltd., Keshvrao Kadam Marg, Mumbai Central,
Mumbai – 400008 in favour of the plaintiff on 01/02/2013. At that
time, Mr. Suresh Kosambia had accepted an amount of 8,00,000/-	₹
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towards interest free security deposit for the use and occupation of the
demised premises for residential purpose of plaintiff’s brother. The
premises were given on license for the period of 11 months starting
from 01/02/2013 to 31/012/2013 without any compensation/ license
fees. Mr. Suresh had agreed to return the security deposit amount of
8,00,000/- after expiry of term of the license. The plaintiff had made	₹
the payment of 8,00,000/- in cash to Mr. Suresh Kosambia on the date	₹
of agreement itself. In the last week of May 2013, the plaintiff came to
know that Mr. Suresh Kosambia had rented the same room premises to
another licensee on leave and license basis with effect from
01/06/2013. On confrontation with him, Mr. Suresh had assured
plaintiff of return of the deposit amount of 8,00,000/- together with	₹
1,10,000/- more. In February, 2014 Mr. Suresh Kosambia passed away	₹
and the amount of security deposit remained unpaid. Thereafter, the
plaintiff asked defendant No.1 to return the amount whereupon she
paid only 1,20,000/- in cash. She assured to return the balance	₹
amount by the next year. In April, 2015, defendant No.1 handed over a
cheque of 1,00,000/- and assured the payment of balance amount.	₹
Then in June 2016, defendant No.1 sent a cheque of 1,00,000/- dated	₹
27/06/2016 towards the part payment of balance security deposit
amount. Thereafter, defendants failed to refund the balance amount
payable. Thus, an amount of 6,00,000/- is due and payable by the	₹
defendants along with interest.
3] The defendant No.1 resisted the Summons for Judgment by
filing reply and an application for leave to defend as aforesaid. It is
contended in her reply that the document of leave and license
agreement dated 01/02/2013 is bogus and fabricated. She denied all
the averments of the plaint. She specified that no amount of any nature
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whatsoever was paid to her husband by the plaintiff and present suit is
filed after demise of her husband to snatch money from her. Moreover,
the suit is barred by law of limitation.
4] Considering rival contentions of parties following points
arise for my determination and I have recorded my findings against
them for the reasons stated thereunder:
Sr. No. Points Findings
1. Whether Summons for Judgment is
required to be made absolute ? No
2. Whether there are triable issues to be
adjudicated between the parties ? Yes
3. Whether the defendant is entitled for
conditional/unconditional leave to
defend ?
Yes. The defendant
is entitled for
unconditional
leave to defend.
REASONS
As to Point Nos. 1 to 3:
5] In order to buttress his case, the plaintiff has placed
reliance on the documents such as, original Leave and License
Agreement dated 01/02/2013 executed by Mr. Suresh Kosambia in his
favour, xerox copy of Leave and License Agreement executed by Mr.
Kosambia in favour of Jitendra Jogilal Jain, xerox copies of cheques
drawn on Bank of India by defendant No.1 dated 23/04/2015 and
27/06/2016, carbon copy of N.C. complaint lodged by plaintiff against
defendant No.1 dated 21/07/2016, copy of police report dated
28/03/2017.
6] I have gone through the original documents i.e. Leave and
License Agreement of plaintiff and copy of NC complaint which are
marked as Exh.4 and 5 respectively. On going through the documents
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filed by the plaintiff, it appears that by virtue of Agreement dated
01/02/2013, late Mr. Suresh Kosambia had accepted an amount of
8,00,000/- from the plaintiff for giving on license the demised	₹
premises without charging any compensation or license fees. The said
amount of 8,00,000/- was supposed to be returned by the licensor on	₹
expiry of the license i.e. on expiry of 31/12/2013. Thus, the amount of
security deposit as alleged by the plaintiff was due and payable on
31/12/2013.
7] It is pertinent to note that, according to the plaintiff the
defendant No.1 has repaid 2,00,000/- by way of two different cheques	₹
out of that amount on his follow up. There is no documentary evidence
to show that he has in fact paid the amount of 8,00,000/- to Mr.	₹
Kosambia and 2,00,000/- are returned by defendant No.1 against that	₹
amount. There is no evidence that he has encashed the cheques drawn
up by the defendant No.1. The defendant No.1 has alleged in her reply
that the said two cheques were forcibly taken from her by the plaintiff
in her house. Upon such incident she had filed police complaint against
the plaintiff.
8] The present suit is filed on 16/08/2018 i.e. after about 7
years when the amount became due and payable to the plaintiff. As
aforesaid, the plaintiff has not filed original documents to show that he
has actually paid an amount of 8,00,000/- to the deceased husband of	₹
defendant No.1. He has to establish that the suit filed by him is within
limitation. Obviously, these are triable issues which are required to be
adjudicated upon on merits by holding the trial. The defendant No.1
has denied her liability to toto. In the circumstances, I hold that the
defendant No.1 is entitled for an unconditional leave to defend.
Hence, I record “
affirmative” findings as to Point Nos.2 and 3 and
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“negative” finding as to Point No.1.
O R D E R
1) Summons for Judgment No.19/2019 in Summary Suit
No. 163 of 2021 is disposed of as follows:
(a) Defendant No.1 is granted unconditional leave to defend
the suit and she is at liberty to file written statement on or
before the next date.
2] Summons for Judgment No.19/2019 is disposed of accordingly.
Sd/-
(Vidya G. Upadhye)
Ad-hoc Judge,
City Civil Court, Mazgaon, Mumbai.
C.R.No.81
Date : 10/07/2026
Dictated on : 10/07/2026
Corrected & signed on: 10/07/2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
10/07/2026 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Smt. Vidya G. Upadhye
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
10/07/2026
JUDGMENT/ORDER signed by P. O. on 10/07/2026
JUDGMENT/ORDER uploaded on 10/07/2026
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