Order 3

Order Details: Other
Pdf Text: SJ No.100084 / 2022,
Anand - Mangamma
Order (Exh.18) 1 of 5
City Civil and Sessions Court, Greater Mumbai
Court Room No. 31
(District Judge : Vijay S. Hingne, LL. M.)
SJ Filed : 11.03.2022
Arguments Heard : 08.08.2023
Decided on : 30.08.2023
Duration : 01 Y, 05 M, 20 D
MHCC01-002664-2022
Exhibit No. 18
Summons for Judgment No. 100084 / 2022
in
Commercial Suit No. 100834 / 2021
Plaintiff : Anand Umakant Shethna
VERSUS
Defendants 1 Smt Mangamma Shankaraiah Girgani
2 Shankaraiah Girgani
Appearances
Plaintiff
: Adv. Shri Jitendra Ahuja
Defendants
: Adv. Shri S. A. Varhadkar
Summons for Judgment
******************************************************************
ORDER
(Pronounced on this 30th Day of August, 2023)
Plaintiff has preferred Summons for Judgment.
Defendant is seeking leave to defend.
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Anand - Mangamma
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Points for determination :
2) Perused record. Heard Adv. Shri Jitendra Ahuja for
plaintiff and Adv. Shri S. A. Varhadkar for defendants. Points for
determination, findings and reasons are as follows :
Points
Findings
1. Whether by Summons for
Judgment, the plaintiff is entitled
for Decree?.................................. In the Negative.
2. Whether defendants satisfy that
they have substantial case for
leave to defend?.....................….. As per final order.
3. What order? …………………… As per final order.
R E A S O N S
Reasons as to Point No. 1 to No. 3 :
3) All points being interconnected, are taken for common
discussion.
Case of plaintiff :
4) Anand Umakant Shethna is proprietor of Paramount
Construction Company, Fort, Mumbai (hereinafter,
Plaintiff).
Defendant No. 1 Smt Mangamma Shankaraiah Girgani
is carrying on business as developer and builder as Shreeniwas
Enterprises, Mumbai. Defendant No. 2 Shankaraiah Girgani is
husband of defendant No. 1 Smt Mangamma (hereinafter,
defendants).
5) Defendants wanted to carry construction activities.
Hence, they requested for friendly business loan of
.	₹ 30,00,000/-
to plaintiff. Accordingly, plaintiff provided the loan. Parties
executed Memorandum of Understanding (MOU) on 07.02.2013
to that effect. Thereafter, defendant failed to repay the loan.
6) On 26.09.2019, defendant No. 1 executed Debit Note-
cum-letter of acknowledgment and confirmation, admitting
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Anand - Mangamma
Order (Exh.18) 3 of 5
liability of .73,32,309/-. In said transaction, defendant No. 2	₹
acted as guarantor. However, again defendants failed to pay the
amount. Hence, defendants are liable to pay . 77,72,247/- with	₹
agreed interest @ 18 % per annum. Therefore, the Suit.
Summons for Judgment No. 100084 / 2022 (Exh. 14) :
7) As per plaintiff, documents filed by him are sufficient to
prove his case. Against it, defendants do not have any triable
issue. Hence, Summons for Judgment, be allowed and Suit be
decreed.
Reply by defendants (Exh. 16) :
8) Defendants opposed the Summons for Judgment and
sought permission for leave to defend, on following grounds :
i. Plaintiff had initially filed Summary Suit and
subsequently converted it into Commercial Suit. Said
conversion is not maintainable.
ii. Plaintiff had not disclosed, as to when alleged loan was
paid. It is also not disclosed as to whom and in whose
account said loan is paid.
iii. Defendant has not executed any documents in favour of
plaintiff.
iv. No such business of friendly transactions have ever
taken place between the parties.
v. Alleged Agreement / MOU is Dt. 07.02.2013.
Therefore, Suit is barred by limitation.
vi. Plaintiff has preferred two Commercial Suits bearing
No. 100834 / 2021 and No. 100905 / 2021 against same
defendants. However, in both Suits, plaintiff has
narrated totally different stories.
Defense : Limitation :
9) Plaintiff is claiming that, he provided loan of .	₹
30,00,000/- to defendants, which has been acknowledged by the
defendant vide MOU Dt. 07.02.2013. Defendants are denying
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Anand - Mangamma
Order (Exh.18) 4 of 5
execution of MOU.
Against loan advanced and subsequent MOU executed
on
07.02.2013, Suit is preferred by plaintiff on
16.01.2020. It
means, Suit for recovery of money is filed after 3 years.
Thereby, defendants have successfully raised issue
relating to limitation.
10) Plaintiff is claiming execution of MOU Dt. 07.02.2013
and subsequent acknowledgment of confirmation Dt. 26.09.2019.
Both these documents are under specific denial by defendants.
So, plaintiff will have to prove the execution of these documents.
Thereby, defendants had raised another issue of due
execution.
Conclusion :
11) Above aspects points that, there are material
propositions, which are alleged and denied by the rival parties,
giving rise to issues, which will require evidence for proper
adjudication. If such dispute is adjudicated merely on the face of
application, without framing issues and without evidence and
without giving the defendants an opportunity to conduct cross-
examination of the plaintiff, then it may cause serious prejudice
to the defendants.
Further, it may also give rise to multiplicity of the
litigation. If that happens, it will cause prejudice to the parties
themselves. Hence, facts and circumstances of the Suit warrants
that, the dispute should be adjudicated, by framing proper issues
and thereafter on the strength of evidence and cross-examination
of the parties. Thereby, defendants have made out case for leave
to defend.
Regarding conditional leave to defend :
12) Plaintiff has claimed that, loan of . 30,00,000/- was	₹
advanced. He has preferred present recovery Suit for .	₹
77,72,247/-. So conditional leave to defend can be granted,
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Order (Exh.18) 5 of 5
subject to payment of . 30,00,000/-.	₹
Documents filed by the plaintiff includes, letter of
acknowledgment and confirmation Dt. 26.09.2019. Plaintiff has
not filed MOU Dt. 07.02.2013. No reasons are forthcoming, as to
why said document is not filed by the plaintiff. In that
circumstances, defendants can be granted conditional leave to
defend, subject to payment of . 5,00,000/-.	₹
13) In view of above discussion, the Points are so answered
and Summons for Judgment is disposed off, by following Order :
ORDER
1. Summons for Judgment No. 100084 / 2022 is
dismissed.
2. Leave is granted to defendants to defend the Suit,
subject to payment of . 5,00,000/- ( .Five Lakhs
₹
	₹
Only).
3. The defendants shall jointly and severally deposit said
amount and shall also file their Written Statement,
within 60 days from the date of this Order.
4. After payment of said amount, same be deposited in the
Nationalized Bank, as per rules.
5. If defendants fails to deposit said amount within
stipulated 60 days, then plaintiff will be entitled to take
appropriate steps against the defendants, as per rules.
6. Proceeding of Summons for Judgment No. 100084 of
2022 is closed.
7. Order dictated and pronounced in Open Court.
8. Both sides be informed about their right to challenge
this Order and period of limitation for the same.
9. The record of Summons for Judgment shall be part and
parcel of the main Commercial Suit No. 100834 / 2021.
Mumbai
Dated : 30.08.2023 (Vijay S. Hingne)
District Judge, Court Room No.31
City Civil & Sessions Court,
Greater Mumbai
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