Final Order 1

Order Details: Other
Pdf Text: SJ 09/18 IN SUM.SUIT 1082/16 1
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT NO. 09 OF 2018
IN
SUMMARY SUIT NO. 1082 OF 2016
CNR.NO.MHCC010005802018
Ganpat Babu Gaikwad
Age about Occ.: Service
Residing at Flat No.404,Dnyanvihar
Cooperative Housing Society Ltd.
Pt.Dindayal Cross Road,Thakurwadi,
Dombivali(w0,District Thane421202. ...Plaintiff
V/s.
1. Ganesh Palani Devendram
Age about 43 years, Occ.Business
2. Smt.Jayanti Ganesh Devendram
Alias Jayanti Mariappa Dendram
Age about 39 years, Occ.Business
Both residing at Room No.24, Building
No.1, 2nd floor, Mahim Machimar Nagar
Colony, Raheja Road, Opp.Mahim
Chaupati, Mahim Causeway, Mahim
Mumbai400016. ...Defendants.
Appearances:
Advocate Mr.Hegde for the Plaintiff.
Advocate Ms.Lata Shanbag for the Defendants.
CORAM : HIS HONOUR JUDGE
SHRI. M.S.LONE
(C.R.NO.28)
DATED : 17TH OCTOBER 2019
ORAL O R D E R
This is summons for judgment for decree of Rs.10,00,000/ with
future interest @ 24% p.a.
-- 1 of 7 --
SJ 09/18 IN SUM.SUIT 1082/16 2
2. The plaintiff case in nut shell is that the plaintiff was in need of
residential premises in the locality of Mahim, Mumbai. The defendants
offered to sell their room situated in Shiv Shakti Machchimar Rahivasi
Sangh opposite building No.5 and 7, Mahim, Machchimar Nagar Mahim
Mumbai60 (hereinafter referred as said room).
3. The defendants agreed to sell the said room for total
consideration of Rs.10,00,000/. The plaintiff agreed to the said offer.
The defendants requested plaintiff to show the sale consideration of Rs.
7,00,000/ due to tax difficulties and pay the remaining amount of Rs.
3,00,000/ in cash. Accordingly, on 13/12/2011 the sale transaction
was completed. The defendant No.1 executed relevant documents in
favour of plaintiff. The defendant No.2 has also executed the affidavit
giving her no objection to the said transaction. It is further case of the
plaintiff that even after the sale transaction was completed the
defendants on one pretext or other avoided to hand over the peaceful
possession of the said room to the plaintiff.
4. After various request the defendant failed hand over the
possession of said room to plaintiff. After repeated meetings and
interference of one Shri. Sachin Bhanudas Akre, local estate agent the
defendant No.2 issued a cheque of Rs. 10,00,000/ by way of refund of
the sale consideration amount in favour of plaintiff. The cheque was
issued on 10/092013. The plaintiff deposited said cheque of
12/09/2013. The cheque was dishonoured for the reason “Account
Closed”. After complying that the statutory requirements plaintiff filed
criminal complaint u/s.138 of Negotiable Instrument Act against
defendant No.2 in the Magistrate Court at Kalyan. As the amount is not
paid by defendants, plaintiff has filed this summons for judgment.
-- 2 of 7 --
SJ 09/18 IN SUM.SUIT 1082/16 3
5. The defendants have resisted this summons for judgment by filing
reply. The defendants have submitted that plaintiff have suppressed the
material facts from this court. The defendants have taken objection to
the suit as it is barred by law of limitation. According to the defendants
plaintiff had approached to purchase the said room through one Sachin
Akre, local estate agent. According to the defendants at the relevant
point of time the said broker was aware that one Public Interest
Litigation was pending with the respect to the structures on the plot
belonging to BMC. The plaintiff was also informed regarding the notice
issued by BMC in 2012.
6. After pointing out all the facts to the plaintiff, the sale transaction
was completed with respect to the said room for total consideration of
Rs. 7,00,000/. The defendants executed relevant documents and sale
agreement was also executed. According to the defendants the plaintiff
was given possession of the said room and plaintiff has given the said
room on leave and license basis to some other person. The BMC
demolished the said structure which was in possession of the plaintiff.
Thereafter in the month of August 2013 plaintiff visited the house of
defendants and demanded the amount of sale transaction of
Rs.7,00,000/. Initially defendant No.1 refused, thereafter in the first
week of September 2013, when defendant No1 was not in his house
plaintiff threatened defendant No.2 and she has issued the said cheque
in favour of the plaintiff. According to the defendants the plaintiff was
aware that litigation was pending with respect to said room. The said
room was demolished after completion of whole sale transaction. The
total consideration of the said room was Rs. 7,00,000/ but plaintiff is
wrongly stating it to be Rs.10,00,000/. According to the defendants
-- 3 of 7 --
SJ 09/18 IN SUM.SUIT 1082/16 4
they have good case of merit and therefore, unconditional leave is
required to be granted.
7. From the material on record following points come for my
determination and my findings with reasons are as follows:
POINTS FINDINGS
1. Whether plaintiff is entitled for
summons for judgment?
No
2. Whether defendant is entitled
for leave to defend, if yes
conditional or unconditional?
Yes as per the conditions laid down
in final order.
3. What order? As per final order
REASONS
AS TO POINT NOS.1 TO 3
8. Ld. counsel for the plaintiff has reiterated contents of plaint. He
has submitted that the possession was never given to the plaintiff. The
whole transaction was for Rs.10,00,000/ The refund cheque is also of
Rs.10,00,000/. The said cheque is dishonoured therefore summons for
judgment may be made absolute and no leave to defend should be
granted to the defendants.
9. To support its contention Ld. counsel for plaintiff has relied on
copy of sale deed dated 13/12/2011, copy of cheque of Rs. 10,00,000/
issued by defendant No.2, copy of cheque return memo, Legal notice,
certified copy of affidavit in evidence filed by the plaintiff in criminal
court.
10. In the written notes of arguments filed by defendant, the Ld.
-- 4 of 7 --
SJ 09/18 IN SUM.SUIT 1082/16 5
counsel for defendant has submitted that the suit is barred by
limitation. The sale transaction was for Rs.7,00,000/. The public
interest litigation was pending in the Hon'ble High Court since 2006
with respect to the structures on the plot as owned by the BMC. The
BMC has issued notice to the occupiers in the year 2010. At the time of
transaction, the plaintiff was aware about all these facts. After the sale
transaction the plaintiff was given possession for the said room. Now
the said room is demolished then it is plaintiff who has to suffer. The
plaintiff forcibly took cheque by threatening defendant No.2.
Defendants have raised triable issues and therefore, unconditional leave
should be granted to defendants.
11. From the pleadings and documents which are forwarded in this
case some undisputed facts have come on record. It is undisputed that
the defendants were occupier of the said room when it was sold to
plaintiff. According to the plaintiff the sale transaction was for Rs.
10,00,000/ whereas, according to the defendants it was for
Rs.7,00,000/. Plaintiff has also come up with the case that possession
was never given to him of the said room. Whereas the defendants have
come up with the case that the possession was given to the plaintiff and
plaintiff had given the said room on leave and license to some other
person. According to the defendants the transaction was completed and
if thereafter the room is demolished it is no fault of defendants. In my
view all these are triable issues which cannot be decided at this stage.
12. The defendants have admitted that they have accepted the sale
amount of Rs. 7,00,000/ from plaintiff. At this stage there is nothing to
show that the plaintiff was given possession of the said room. The
issuance of cheque by defendant No.2 in favour of plaintiff goes in
-- 5 of 7 --
SJ 09/18 IN SUM.SUIT 1082/16 6
favour of plaintiff. If according to the defendants the transaction was
complete then there was no reason for defendant to issue any cheque to
refund amount. Though defendants have raised the issue that plaintiff
had forcibly taken the cheque by giving threats to defendant no. 2 but
there is no complaint filed by defendants about such threat. Defendants
have also raised issue of limitation, at this stage of proceedings, it seems
that limitation is mix question of facts for which evidence will be
required. As the defendants have admitted to have accepted the amount
of Rs. 7,00,000/, unconditional leave cannot be granted to them.
Hence, following order is passed.
ORDER
1. Summons for Judgment No.09/2018 stands rejected.
2. Defendants are granted leave to defend subject to payment of
Rs.7,00,000/ (Rupees Seven Lakhs Only) within eight weeks
from the date of this order.
3. On depositing the aforesaid amount of Rs.7,00,000/ (Rupees
Seven Lakhs Only) the Registrar is directed to invest the said
amount in any nationalize bank for initial period of one year and
seek further directions of the court as and when required.
4. Summons for Judgment No.09/2018 is disposed of accordingly.
(M.S.LONE)
Judge,
Date: 17/10/2019 City Civil Court,Gr. Bombay
Dictated on : 17/10/2019
Transcribed on : 22/10/2019
Signed on : 23/10/2019
-- 6 of 7 --
SJ 09/18 IN SUM.SUIT 1082/16 7
ERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
24/10/2019 at 3.10p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Shri.M.S.Lone
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
17/10/2019
Judgment/Order signed by P.O. on 23/10/2019
Judgment/Order uploaded on 24/10/2019
-- 7 of 7 --