Final Order 1

Order Details: Notice of Motion
Pdf Text: NM In SC 678/17 Oral Order 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 244 OF 2019
(CNR NO.MHCC010006272019)
IN
SUMMARY SUIT NO.678 OF 2017
Joel Juliano D'souza & Anr. ...Plaintiff
V/s
Mr.Nurullah Kamruddin Veljee ...Defendants
Coram : His Honour Judge Shri M.M.Umar
(C.R. No.28)
Dated : 18/02/2019
Adv. Mr.Desai for plaintiff.
Adv. Mr.Lakhmani a/w. Rai for defendant.
ORDER BELOW NOTICE OF MOTION NO.244/19
1. This Notice of Motion is taken out by the defendant for
rejecting the plaint and dismissing the Summary Suit. The plaintiff has
resisted to the said application by filing reply on record.
2. Read the Notice of motion and reply.
3. The learned advocate for the defendant has submitted that
the plaint is liable to be rejected in view of Order VII Rule 11 of the
Code of Civil Procedure. It is submitted that the suit of plaintiff is based
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NM In SC 678/17 Oral Order 2
on handwritten promissory note dated 3/2/2015. It is submitted that
the defendant has denied the execution of said documents and the said
promissory note is manufactured fraudulently with dishonest intention,
so also, the said promissory note is unstamped. Therefore, it is
requested to reject the plaint
4. Per contra, the advocate for plaintiff has submitted that the
defendant has filed the reply to the leave to defend and he has
admitted that he repaid part loan amount of Rs. 5,00,000/ each on
16/6/2016 and 6/7/2016. So also, he has admitted that Rs.25,00,000/
is still outstanding and to be paid to the plaintiff no.2 alongwith agreed
7% p.a.interest. It is submitted that since the defendant has admitted
his liability to pay the amount to the plaintiff, the suit cannot be thrown
out merely because the promissory note is unstamped. It is submitted
that as per the facts of the case the defendant has failed to make out
the case for the rejection of the plaint under Order 7 Rule 11 of CPC, it
is requested to dismiss the notice of Motion.
5. I have duly considered the above submissions of both the
sides so also, I have gone carefully through the case record. It appears
that there is no dispute between the parties that the plaintiff gave
Rs.35,00,000/ to the defendant and the defendant has paid an amount
of Rs.10,00,000/ to the plaintiff and Rs.25,00,000/ are yet to be paid.
In these circumstances, by no stretch of imagination it can be said that
the plaint is liable to be rejected under the provisions of Order 6 Rule
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NM In SC 678/17 Oral Order 3
11 of the Civil Procedure Code, merely, on the ground that the said
Demand Promissory Note is unstamped. Now, it is well settled law that
the trial court vested with a discretion which has result in justice being
done on the face of each case. The discretion that a Judge exercises
under Order 37 of Civil Procedure Code to refuse leave to defend or to
grant conditional or unconditional leave to defend is a discretion akin
to the Joseph's multicoloured coat – a large number of baffling
alternatives present themselves. Thus, considering the facts and
circumstances on record in my opinion, the defendant has utterly failed
to demonstrate that the plaint is liable to be rejected under Order VII
Rule 11 of CPC. Hence, in view of the matter it appears to me that the
notice of motion is devoid of substance and needs to be dismissed. In
the result, following order:
: ORDER :
1. Notice of Motion no.244/19 is hereby dismissed.
2. No order as to costs.
(M.M.UMAR)
Judge,
16/2/2019 City Civil Court, Gr. Mumbai
Date of Dictation : 16/2/19.
Date of Transcription : 16/2/19.
Date of signature : 22/2/19
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NM In SC 678/17 Oral Order 4
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
22/2/2019 1.30p.m. Mrs.Jyoti R.Mane
Name of the Judge HHJ Shri M.M.Umar(CR No.28)
Date of Pronouncement of
Judgment/Order.
18/2/2019
Judgment/order signed by P.O on 22/2/2019
Judgment/order uploaded on 22/2/2019
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