Final Order 1

Order Details: Other
Pdf Text: :1: S.J. No.22/2019 in Summary Suit No.1343/2018
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT NO. 22 OF 2019
CNR NO.: MHCC010006202019
IN
SUMMARY SUIT NO. 1343 OF 2018
Dnyaneshwar Kondiba Shilamkar
Age 52 yrs, Hindi, adult Indian
Inhabitant, occ: Contractor and at
Present residing at Room No.46
4th floor, Jamshed building,
Shivdas Chapsi Mag, Noorbaug
Naka, Mumbai – 400 009. ...Plaintiff
V/s.
1. Mahesh Karsan Makwana
Occupation : service
2. Niru Mahesh Makwana
Occupation : housewife
Age of both above not known
Hindu, adult, Indian inhabitant
At present both are residing at
Room No.124, building No.4
BMC Vasahat , Mahul Village
MHADA Colony, Mumbai
400 074. ...Defendants.
Appearances:
Advocate Mr. Rupesh T. Padwal for the plaintiff.
Advocate Mr. Jani for the defendants.
-- 1 of 6 --
:2: S.J. No.22/2019 in Summary Suit No.1343/2018
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 24th JUNE, 2019.
O R A L O R D E R
Story of plaintiff in short is as under :
1. Plaintiff has stated that the defendant No.1 was his closed friend
and in the month of June 2016, defendant No.1 was in urgent need of
money for his personal requirements and plaintiff arranged
Rs.12,00,000/ out of his personal savings as well as by arranged the
amount from his closed relatives and friends. Plaintiff has further stated
that defendant No.1 signed an Affidavit dated 13.06.2016, whereby
defendant No.1 had acknowledging the said loan and defendant No.2
signed the said documents as a surety of the said loan. As per said
Affidavit, defendant undertook to repay the entire loan amount of Rs.
12,00,000/ within a period of two years i.e. on or before 12.06.2018.
2. Plaintiff has further stated that defendant No.1 had issued four
separate cheques in favour of plaintiff acknowledging the said loan and
to safeguard the interest of plaintiff. Plaintiff has further stated that on
depositing said cheques in Bank they were dishonoured. Plaintiff has
further stated that he filed Criminal Case No.463/SS/2017 against
defendant under Section 138 of Negotiable Instruments Act and
defendant was acquitted from the same. Plaintiff has issued Notice
calling upon defendant to repay the said loan amount of
Rs.12,00,000/, but defendant failed to give reply to said Notice.
Therefore, plaintiff filed this suit.
3. Defendant has filed reply to this Summons for Judgment and
-- 2 of 6 --
:3: S.J. No.22/2019 in Summary Suit No.1343/2018
stated that plaintiff has filed false and frivolous Criminal Case against
him. Defendant has further stated that plaintiff is doing business of
money lending and it is the practice of plaintiff to take ante dated
cheques and affidavit from the persons who approached him for loan
and thereafter to file false case. Defendant has further stated that he
had approached the plaintiff for loan amount of Rs.12,00,000/,
however, plaintiff without disbursing loan amount took his signature on
false and fabricated affidavit alongwith his wife as guarantor and also
four ante dated cheques. Defendant has further stated that in good
faith, he signed the alleged affidavit prepared by plaintiff and counter
signed by his wife an also handed over four ante dated cheques.
Defendant has further stated that however to his shock and surprise
plaintiff neither had given him cash or cheque of Rs.12,00,000/, but
threatened him of dire consequences. Defendant has further stated that
he thought plaintiff will pay him as per their understanding, but
plaintiff has shown his true colour and dragged defendant and his wife
to the Court in a false case. Defendant has further stated that it was
made clear by him that such cheques were blank obtained from him as
security and would be filled in with dates by him upon disbursement of
loan, however, plaintiff played big fraud on him and prayed for leave to
defend unconditional leave.
4. Defendant Nos. 1 and 2 have admitted that the affidavit produced
by plaintiff bears their signatures. Defendants have stated that in good
faith they signed the affidavit. It appears the affidavit is of 13th June,
2016. It appears in the affidavit it is clearly stated that defendant has
taken friendly loan amount of Rs.12,00,000/ for two years only and he
will repay the same before 12th June 2018. It appears there is reference
of cheques also. Defendant is contending that he signed this affidavit
-- 3 of 6 --
:4: S.J. No.22/2019 in Summary Suit No.1343/2018
but plaintiff did not give him Rs. 12,00,000/. Twelve Lakh is not a
small amount. If in June 2016 on signing the affidavit with contents
that defendant has received Rs.12,00,000/ and that he will repay it
within two years, if defendant has not already received Rs.12,00,000/
from plaintiff then defendant immediately would have filed a Criminal
Proceedings against plaintiff for such alleged fraud or at least
demanded Rs.12,00,000/ from plaintiff. It is quite improbable that
without receiving amount of Rs.12,00,000/ a person will sign the
affidavit that he has received such amount and also promise to repay by
signing the affidavit and remained silence and not taken any action. It
appears as per affidavit defendant was supposed to repay money upto
June 2018 and there is nothing to show that defendant has repaid Rs.
12,00,000/. According to defendant, plaintiff is in habit of filing false
case against other people by taking false affidavit and cheques.
Defendant has failed to produce any documents or any affidavit of any
people stating that plaintiff has filed false cases against them. Merely
because before the date stated i.e. 12th June, 2018 the cheques were
deposited and from the case filed under Section 138 of the Negotiable
Instruments Act, defendant was acquitted, no conclusion can be drawn
that defendant did not execute affidavit that he will pay Rs.12,00,000/
to plaintiff.
5. From all the circumstances discussed above and that till today
defendant did not file a Criminal Case against plaintiff for alleged fraud
by him nor demanded money immediately on signing the affidavit, the
defence raised by defendant appears remotely plausible. Hence to give
opportunity to defendant to prove his defence, it will be proper to give
conditional leave to defend by safeguarding interest of plaintiff. Hence,
following order:
-- 4 of 6 --
:5: S.J. No.22/2019 in Summary Suit No.1343/2018
ORDER
1. Conditional leave to defend the Suit is granted to the Defendants on
depositing amount of Rs.12,00,000/ in the Court within four weeks of
the order.
2. On depositing the aforesaid amount in the Court, the Registrar
(Civil) is directed to deposit said amount in any Nationalised Bank
initially for a period of one year and continued to renew the same for
the like period till further orders.
3. On depositing amount of Rs.12,00,000/ as directed above, the
defendants are directed to file their Written Statement within further
period of 2 weeks.
4. Summons for Judgment No. 22/2019 is disposed off accordingly.
(S.P. AGARWAL)
Judge,
Date: 24.06.2019. City Civil Court,
Gr. Bombay.
Dictated on : 24.06.2019
Transcribed on : 24.06.2019
Signed on : 24.06.2019
-- 5 of 6 --
:6: S.J. No.22/2019 in Summary Suit No.1343/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
01.07.2019 At 03:05 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Ms. S.P. Agarwal
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
24.06.2019
Judgment/Order signed by P.O. on 24.06.2019
Judgment/Order uploaded on 01.07.2019
-- 6 of 6 --