Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: SJ 23/2019 SUM.SUIT 440/2018 1
IN THE CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT NO.23 OF 2019
SUMMARY SUIT NO. 440 OF 2018
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
( CNR NO.: MHCC01-000621-2019)
Mr.Subhash Yelappa Kutade,
Age: 34 years,
Occupation: Money Lender,
Having his office and residence
address at Room No.14,
Navjivan Seva Society,
Shivneri Nagar, Shingrewadi,
Bailbazar, Kurla West,
Mumbai-400 070.
(Mobile No.9967155818) ....Plaintiff
Versus
Mr. Arvind Vithoba Sawant,
Age: Adult
Occupation: Service
Having his office address at
Employee Name DPSAVSM 6601,
Designation : Binder Government,
Central Press, Mumbai-GPF/DCPS AC.
STY/MAH/7331, Charni Road,
Mumbai-400004. And also having
his residence address B-155/08,
Government Quarters, BHD
Jogers Park, Bandra East,
Mumbai-400051. ...Defendant
Appearances:-
Advocate Mr.B.S. Patil for the Plaintiff.
Defendants Ex-parte.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 4th March, 2020
-- 1 of 5 --
SJ 23/2019 SUM.SUIT 440/2018 2
J U D G M E N T
1. This is Summons for judgment for recovery of amount of
Rs.4,54,000/- (Rupees Four Lakhs Fifty Four Thousand Only) with
interest at the rate of 18% p.a..
2. According to the plaintiff, he is a money lender carrying on the
business of money lending under License No.RBE995 in his name. The
defendant is in service of the government. In consideration of
Rs.4,00,000/- obtained by the defendant from the plaintiff, the
defendant executed promissory note dtd.07.05.2017 of same amount in
favour of the plaintiff. By same promissory note the defendant promised
to pay interest at the rate of 18% p.a. on the said sum of Rs.4,00,000/-.
However, the defendant neglected to pay the said amount. Despite
service of legal notice of demand dated 20.02.2018, the defendant
failed to pay the said amount. At the institution of the suit, the amount
due and payable by the defendant was Rs.4,54,000/-. Therefore, the
plaintiff claimed decree for recovery of said amount with the interest.
3. The defendant filed reply to the Summons for Judgment. The
defendant denied that the plaintiff paid him loan of Rs.4,00,000/-.
According to him, the plaintiff was introduced to him by one Deepak
Desai on 07.05.2017 and at that time the plaintiff introduced himself as
Subhash Ghadge. At the behest of Deepak Desai, the plaintiff advanced
personal loan of Rs.50,000/- to the defendant on the interest at the rate
of 10% p.m.. The plaintiff immediately deducted the amount of
Rs.5000/-. The plaintiff obtained defendants thumb impression and
signature on blank promissory note and told that he will fill the details
later on. The plaintiff also procured 3 post dated cheques of Axis bank
-- 2 of 5 --
SJ 23/2019 SUM.SUIT 440/2018 3
from the defendant. The plaintiff also obtained ATM card of the
defendant and used to take the defendant to the Axis bank and would
ask him to withdraw the cash by using ATM card. The plaintiff thus used
to collect his interest amount of Rs.5,000/- every month from the
defendant and keep the defendant's ATM card with himself. The plaintiff
has collected total amount of Rs.85,000/- from the defendant towards
the interest for the loan advance. After paying interest for 17 months,
on some pretext the defendant took back his card from the plaintiff and
never paid any interest thereafter. Though the plaintiff obtained 3
cheques from the defendant he did not deposit the same. The defendant
admits that he received the notice dtd.20.02.2018. However, according
to him he was not aware as to who is Subhash Kutade and he was not
aware that Subhash Gadge and Subhash Kutade are the same person.
The plaintiff by same modus operandi defrauds people. On these
grounds the defendant requested to reject the summons for judgment
and grant him unconditional leave to defend.
4. Considering the material on record and submissions made on
behalf of the parties points arise for determination along with my
findings thereon for the reasons recorded are as under:-
POINTS FINDINGS
1. Whether the plaintiff is entitled
to Summons for Judgment?
Negative
2. Whether the defendant is
entitled to Leave to defend?
If yes, whether conditional/
unconditional?
Unconditional leave to defend is
granted.
3. What order? As per final order
-- 3 of 5 --
SJ 23/2019 SUM.SUIT 440/2018 4
REASONS
AS TO POINTS NO.1 to 3:-
5. The Ld advocate on behalf of the plaintiff argued that the
promissory note produced on record shows the liability of the
defendant. The defendant admitted execution of the same promissory
note. Thus, liability of the defendant is proved. Therefore, he requested
to allow the summons for judgment.
6. Neither the defendant nor his advocate appeared to advance
arguments. Therefore, the matter proceeded without arguments on
behalf of the defendant.
7. The contention of the plaintiff is that by obtaining loan of
Rs.4,00,000/- from him, the defendant executed promissory note of
same amount. However, the defendant has come with complete
different contention. Although execution of the promissory note is
admitted by the defendant, the specific contention of the defendant is
that he never obtained loan of Rs.4,00,000/- from the plaintiff. He had
obtained amount of Rs.50,000/- only which he has repaid by way of
payment of Rs.85,000/- as Rs.5000/- per month. Thus, whether the
defendant executed the promissory note for Rs.4,00,000/- is a triable
issue. The defendant has taken specific plea that the plaintiff
mischievously obtained his thumb impression and signature on blank
promissory note, he entered the details later. Thus, whether the
promissory note was genuinely executed is also a triable issue. As the
defendant raised triable issues the plaintiff is not entitled to Summons
for judgment. On the other hand the defendant is entitled to
Unconditional leave to defend. Hence, point No.1 is answered in the
negative. Whereas point No.2 is answered as that the defendant is
-- 4 of 5 --
SJ 23/2019 SUM.SUIT 440/2018 5
entitle to Unconditional leave to defend. In answer to Point No.3 order
as follows is passed:
ORDER
1. The summons for judgment 23/2019 is rejected.
2. Unconditional leave to defend is granted to the defendant.
3. The defendant shall file the written statement on or before
27-04-2020.
4. The Register shall cause conversion of the suit to appropriate
category and shall cause assignment of the same to appropriate court by
completing requisite process.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date: 04/03/2020 City Civil Court, Gr. Mumbai
Dictated on : 04/03/2020
Signed on : 06/03/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
07/03/2020 at 3.00p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 04/03/2020
Judgment/Order signed by P.O. on 06/03/2020
Judgment/Order uploaded on 07/03/2020
-- 5 of 5 --