Final Order 1

Order Details: Other
Pdf Text: ..1.. Summons for Judgment No.25/2019
MHCC010007012019 Presented on : 17/01/2019
Registered on : 19/01/2019
Decided on : 09/08/2024
Duration : 05Y 06M 24D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
SUMMONS FOR JUDGMENT NO.25 OF 2019
(CNR NO.MHCC01-000701-2019)
IN
SUMMARY SUIT NO.1345 OF 2018
Mrs. Neeta Ambalal Jain, )
Occupation : Business, an adult Indian )
Inhabitant of Mumbai, residing at )
Room No.50/A, Burjour Building, 4th floor, )
Wadia Street, Tardeo Road, Mumbai – 400033. )
Off Add. Jainam Fashion Jewellary, Off. No.412 )
Kalbhairav Society, 4sth Floor, Tambakanta )
Phydhonie, Mumbai – 400002. )..Plaintiff
VERSUS
Upendra Hastimal Porwal, )
Occ : Business, an adult Indian Inhabitant of )
Mumbai, carrying on business in the name and )
style of M/s. Sri Simandhar Arts, as Sole )
Proprietor having his )
Office : 28, D. Plaza, 1st floor, Shop No.111, )
1st Agiary Lane, Opp. Nasta Gali, above National )
Refinery, Zaveri Bazar, Mumbai – 400002. )
Res. At 703, Gayatri Sadan, 7th floor, K.K. Marg, )
Saat Rasta, Jacob Circle, Mumbai – 400011. )..Defendant
Appearance :-
Learned Advocate Ravindra Khillare for plaintiff.
Learned Advocate Dhanashree Pawaskar instructed by Advocate Mehul
Rathod for defendant.
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..2.. Summons for Judgment No.25/2019
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84
DATE : 09/08/2024.
ORDER
1 Plaintiff has filed this suit for recovery of amount
contending that she is carrying business of imitation of jewellery and
defendant is also engaged in the business in name and style of M/s. Sri
Simandhar Arts, as a sole proprietor. Plaintiff knows defendant since
last 25 years being cousin brother of her husband. Defendant
approached to the plaintiff for urgent loan for business of
Rs.40,00,000/- to 45,00,000/-. Defendant promised to repay the loan
back with 12% per annum interest within 12 months. Considering the
request, plaintiff has transferred the amount of Rs.35,00,000/- through
six RTGS transactions i.e. three on 27/01/2016 and remaining three on
30/01/2016. Defendant agreed to pay the loan amount with interest at
the rate of 12% per annum. He paid interest till August-2018. Having
failure on the part of defendant to repay the loan amount with interest,
the plaintiff issued notice through advocate calling upon defendant to
repay the loan amount, but in vain. Hence, plaintiff failed to repay the
loan of Rs.31,21,076/-, hence, she filed the suit for recovery of amount
with interest at the rate of 12% per annum.
2 In response to the writ of summons, defendant appeared
and tendered vakalatnama, thereafter, plaintiff took out summons for
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..3.. Summons for Judgment No.25/2019
judgment. The defendant appeared and tendered reply resisting the
contention against plaintiff, contending that plaintiff has made false
contentions on oath and he has suppressed the material fact. The
defendant had filed various complaints against plaintiff and her
husband. According to the defendant, once the plaintiff and her
husband appeared in his firm and purchased gold of Rs.18,50,000/-. It
is further contended that the defendant has paid Rs.26,00,000/- to the
plaintiff on request. It appears that the defendant has not denied the
receipt of Rs.35,00,000/- from the plaintiff, however, claiming that
transaction in question does not fall within the purview of Order XXXVII
of Code of Civil Procedure. It is further contended that the defendant
has filed a Commercial Suit against plaintiff for recovery of amount and
prayed for dismissal of Summons for judgment.
3 Heard rival parties at length.
4 It transpires from the reply to summons for judgment that
there were multiple transactions between plaintiff and defendant and
there is a dispute between them. They have complaints against each
other in the police station. The defendant is claiming purchase of gold
by the plaintiff. He also made payment of Rs.26,00,000/-, which was
required to be adjusted against the loan of Rs.35,00,000/-. Thus,
admitted fact appears that there is transaction regarding taking money
and repayment thereof. However, during the course of argument, the
learned advocate for plaintiff is unable to show on which specific
document on which basis, the plaintiff has filed the suit under Order
XXXVII of Code of Civil Procedure. It is the case of the plaintiff that she
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..4.. Summons for Judgment No.25/2019
has transferred amount of Rs.35,00,000/- through six separate RTGS
transaction which are appearing in her passbook. The copy of passbook
is tendered on record. Thus, it appears that the suit is based on
honoured transaction. The provision of Order XXXVII Rule 2 requires
that the transaction must be based on the following :-
(A) Suits upon bills of exchange, hundies and promissory notes;
(B) suit in which the plaintiff seeks only to recover a debt or
liquidated demand in money payable by the defendant,
with or without interest arising -
(a) on a written contract; or
(b) on an enactment, where the sum sought to be
recovered is a fixed sum of money or in the nature of a
debt other than a penalty; or
(c) on a guarantee, where the claim against the principal
is in respect of a debt or liquidated demand only.
(d) suit for recovery of receivables instituted by any
assignee of a receivable.
5 The honoured RTGS transaction does not fall under the
purview of Order XXXVII Rule 2 of Code of Civil Procedure, therefore,
basically suit is not maintainable as a summary suit. The learned
advocate for plaintiff has vehemently argued that the defendant has
admitted the receipt of amount, therefore, he has ample chance to
succeed in the suit, but fairly admitted that there is no agreement
between parties nor any promissory note or bill of exchange is executed
in favour of plaintiff. Plaintiff may be able to establish her case in
evidence, but same cannot be considered while deciding the summons
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..5.. Summons for Judgment No.25/2019
for judgment as the suit is not maintainable as a summary suit. The
present suit is required to be tried as a regular suit. Consequently,
defendant is entitled for unconditional leave to defend and in the result,
I proceed to pass following order :-
ORDER
1. Summons for Judgment No.25 of 2019 in Summary
Suit No.1345 of 2018, is hereby rejected.
2. Defendant is granted unconditional leave to defend.
3. Defendant is directed to file written statement within
stipulated period from the date of this order.
4. Summons for judgment is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Mazgaon
Mumbai
Date: 09/08/2024. Court Room No.84
Dictated on : 09/08/2024.
Transcribed on : 12/08/2024.
Signed by HHJ on : 13/08/2024.
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..6.. Summons for Judgment No.25/2019
“Certified to be true and correct copy of the original signed order”.
13/08/2024
at about 5.10 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge, Court
Room No.84, Mazgaon, Mumbai
Date of pronouncement of Order : 09/08/2024
Order signed by Hon'ble Judge on : 13/08/2024
Order uploaded on : 13/08/2024
at about 5.10 p.m.
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