Interim Order 2

Order Details: Other
Pdf Text: SJ No.100069 / 2021,
Anand - Mangamma
Order (Exh.18) 1 of 4
City Civil and Sessions Court, Greater Mumbai
Court Room No. 31
(District Judge : Vijay S. Hingne, LL. M.)
SJ Filed : 05.08.2021
Arguments Heard : 08.08.2023
Decided on : 30.08.2023
Duration : 02 Y, 26 D
MHCC01-005510-2021
Exhibit No. 18
Summons for Judgment No. 100069 / 2021
in
Commercial Suit No. 100905 / 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.
Points for determination :
2) Perused record. Heard the Learned Counsels. Points for
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SJ No.100069 / 2021,
Anand - Mangamma
Order (Exh.18) 2 of 4
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) Points being interconnected, are commonly discussed.
Case of plaintiff :
4) Anand Umakant Shethna is proprietor of Shree Ram &
Associates, Fort, Mumbai. Plaintiff No. 2 Smt. Sheela Umakant
Shethna is mother of plaintiff No. 1 (hereinafter,
Plaintiff).
Proprietorship concern Shree Ram & Associates was
being looked after by Umakant Ichhalal Shethna (hereinafter
Umakant). He died on 22.04.2018. During pendancy of Suit,
plaintiff No. 2 Sheela died on 26.07.2022.
Defendant No. 1 Smt Mangamma Shankaraiah Girgani
is carrying on business as developer and builder as, Shreeniwas
Enterprises, Mumbai. Defendant No. 2 Shankaraiah is husband of
defendant No. 1 Smt Mangamma (hereinafter,
defendants).
5) Defendant No. 1 Smt Mangamma engaged Umakant for
construction consultancy for her Panvel and Karjat projects. For
that purpose, defendant No. 1 also requested for friendly business
loan. Accordingly, Umakant provided the loan. On 13.09.2019,
defendants executed letter of acknowledgment, confirming
liability of
.	₹ 12,70,588/- with interest @ 18 % per annum.
However, defendants failed to repay the amount. Hence, the Suit.
Summons for Judgment No. 100069 / 2021 (Exh. 16) :
6) As per plaintiff, documents filed by him are sufficient to
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SJ No.100069 / 2021,
Anand - Mangamma
Order (Exh.18) 3 of 4
prove his case. Against it, defendants do not have triable issue.
Hence, Summons for Judgment, be allowed and Suit be decreed.
Reply by defendants :
7) 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. 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.
vi. Plaintiffs are claiming that, they are legal heirs of
Umakant. However, there is no Legal Heirship
Certificate, Probate or any other document to claim
rights in proprietorship concern of Umakant.
Rejoinder :
8) Contentions raised by defendants are false. Defendant
has made out his case for Summons for Judgment.
Conclusion :
9) Plaintiff is claiming that, they have provided loan to the
defendants. However, in the Plaint, plaintiff has not disclosed the
details of loan, as to on what date the loan was provided, what
was the amount of loan and what was the mode of payment of
loan. Plaintiff is directly claiming that, defendants, on
13.09.2019, executed letter of acknowledgment and admitted the
liability. This being Suit for recovery, filed under Commercial
Courts Act, it was necessary for plaintiff to have provided details
about the date, mode and amount of the loan. Thereby,
defendants have successfully raised issue of maintainability.
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SJ No.100069 / 2021,
Anand - Mangamma
Order (Exh.18) 4 of 4
10) Above aspects points, there are material propositions
alleged and denied by rival parties, giving rise to issues, which
will require evidence for proper adjudication. If such dispute is
adjudicated merely on face of application, without framing issues,
without evidence and without cross-examination of plaintiff, then
it may cause serious prejudice to the defendants. It may also give
rise to multiplicity of litigation. If that happens, it will cause
prejudice to parties themselves. Hence, facts and circumstances
of the Suit warrants that, dispute should be adjudicated, by
framing proper issues and on the strength of evidence of parties.
Thereby, defendants have made out case for leave to defend.
Regarding unconditional leave to defend :
11) As the plaintiffs have not disclosed date, mode and
amount of loan, in that backdrop, defendants are entitled for
unconditional leave to defend. Hence, Points are so answered and
Summons for Judgment is disposed off, by following Order :
ORDER
1. Summons for Judgment No. 100069 / 2021 is
dismissed.
2. Unconditional Leave is granted to defendants to defend
the Suit.
3. Proceeding of Summons for Judgment No. 100069 of
2021 is closed.
4. Order dictated and pronounced in Open Court.
5. Both sides be informed about their right to challenge
this Order and period of limitation for the same.
6. The record of Summons for Judgment shall be part and
parcel of the main Commercial Suit No. 100905 / 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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