Final Order 1

Order Details: Other
Pdf Text: SJ 27/19 IN SUM.649/18 ORDER 1
Received on : 24.09.2018
Registered on : 19.01.2019
Decided on : 21.02.2022
Duration : 03Y 01M 03D
EXHIBIT
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.27 OF 2018
( CNR No.MHCC01-015166-2018)
IN
SUMMARY SUIT NO. 649 OF 2018
Mr.Nirav Ashwin Mange,
An adult aged 31 years,
Occupation:Business,
Residing at : 802, Sai Vaibhav CHS,
R.B.Mehta Road, Julelal Chowk,
Opp. Vikrant Circle, Ghatkopar (E),
Mumbai 400077
… Plaintiffs
Vs.
Mr.Binaykumar B. Shrivastava
Prop.Of Shiva Rubber
An Adult Aged about 45 years
Occupation: Business
Having Office Address At: A55,
M.I.D.C. Nangaon Path, NH6,
Amravati – 444901, Maharashtra. … Defendant
Advocate Mr.M.K.Dubey for the plaintiff.
Advocate Mr.W.R.Khan for the Defendant.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 21st February 2022
JUDGMENT
1. Plaintiff has filed Summons for Judgment and requested to direct
the defendant to pay an amount as claimed by plaintiff alongwith 24%
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SJ 27/19 IN SUM.649/18 ORDER 2
p.a. interest. It is the submission of plaintiff that he is doing business
with his father. Their office of business is at Bhat Bazar Mumbai.
Defendant is proprietor of Shiva Rubber carrying business of
manufacturing of Rubber. The defendant is having business at Nangaon
Path, Amravati. The defendant is close friend of the father of plaintiff
by name Mr.Ashwin Mange. Therefore, defendant approached to
plaintiff for financial help for growth of his business and requested
Rs.15,00,000/ to defendant on 30/4/2015. At the same time the
defendant has agreed to pay interest at the rate of 24%p.a. and also
confirmed the loan amount. But thereafter the defendant tried to avoid
the plaintiff on phone call and failed to pay the amount . Accordingly
the plaintiff has issued first letter on 4/10/2017 and thereafter legal
notice on 7/3/2018. The defendant has given false reply to the notice.
There was letter communication between the parties but till today the
defendant failed to pay the amount of plaintiff. Now, as per calculation
of plaintiff due amount is Rs.25,80,000/. Accordingly, plaintiff has
filed suit for Rs.25,80,000/ alongwith 24%p.a. interest, thereon from
the date of suit. Therefore, this Summons for Judgment.
2. The defendant appeared on record and filed reply to the
Summons for Judgment. It is the submission of defendant that he has
received separate notice from Ashwin Mange, K.Mange and Nirav
Mange. In the present suit Nirav Mange is the plaintiff. But it is the
submission of defendant that all the three have issued three separate
notices for separate demand in the name of firm as well as in their
personal capacity. They have also shown different amount in the notice
the defendant submitted that the plaintiff is doing illegal moneylending.
The defendant further submitted that there is no any legal enforcible
liability against defendant. The defendant is carrying business of raw
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SJ 27/19 IN SUM.649/18 ORDER 3
material. Therefore, he is having good relation with the father of
plaintiff. The defendant is having unit of manufacturing of rubber and
tyre in Five Star Store, MIDC, Nangaon Path, NH 6, Amaravati444901.
He is also planner of industrial unit. The father of plaintiff willing to
establish rubber and tyre manufacturing company unit for the plaintiff
at Mumbai. Defendant is having well experience in the said business.
Therefore, in the month of January 2015 the father of plaintiff
approached defendant for establishing of Tyre unit for plaintiff at
Mumbai. Accordingly, he asked the help of defendant. Thereafter the
father of plaintiff and defendant approached to Michigin Rubber
Industry. But said company is also engaged in the business of
manufacturing of spare parts. The father of plaintiff placed order for
purchase of spare parts with Michigin Rubber industry worth
Rs.1,25,00,000/ . The defendant was mediator and guarantor in the
said transaction. The defendant was mediator at the relevant time. At
the same time it was agreed between the parties that plaintiff will
forward amount of order in the account of defendant and thereafter the
defendant will forward the said amount to Michigin Rubber Company.
Accordingly, the defendant has forwarded the said amount to concerned
Company. Now, there is no any amount due of plaintiff by defendant.
With these submissions the defendant requested to allow him to defend
the suit unconditionally.
3. Heard learned advocate for plaintiff and defendant at length. The
plaintiff has produced the documents below Exhibit 7. That is copy of
original passbook, confirmation of account by defendant, notice of
acknowledgment and reply of defendants. The defendant has not
produced single document in support of his statement.
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4. From pleadings and documents on record following points arise
for consideration to which I have given reasons before them :
Sr.
No.
POINTS FINDINGS
1 Does plaintiff entitled for relief sought in
the summons for judgment ?
Partly Affirmative
2. Do the defendants entitled for leave to
defend the suit unconditionally ?
In the Negative
3 What Order ? Summons for
Judgment is made
partly absolute
R E A S O N S
AS TO POINT NOS.1 AND 2:
5. It is the case of plaintiff that defendant is friend of his father.
Accordingly, he has approached to plaintiff and sought financial
assistance of Rs.15,00,000/ by RTGS. Said amount is received by
defendants towards financial assistance. From the reply defendant has
not denied any relation with father of plaintiff. The plaintiff produced
passbook to show the entry regarding transfer of Rs.15,00,000/ to
Shiva Rubber that is the Company of defendant. The plaintiff has also
produced confirmation of accounts issued by defendants to plaintiff
regarding receipt of Rs.15,00,000/(Rs.Fifteen Lacs) from plaintiff. But
it is the case of defendant that father of plaintiff wanted to establish
new Company in the name of plaintiff at Mumbai. The defendant is
having knowledge of the same business, therefore, just to help the
father of plaintiff he played the role of mediator between the father of
plaintiff and the Company by name Michigin Rubber Industry. At the
same time, it was determined between the parties whatever raw
material purchase order was placed by the father of plaintiff for
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purchasing the said from Michigin company that time. First the plaintiff
will forward amount in the account of defendant and then the
defendant will forward said in the account of Michigin Rubber
Company. Plaintiff has produced account book, the said fact is admitted
by defendant. But it is the case of defendant that he has forwarded the
said amount to the company by name Michigin but except his oral
statement he has not produced any document to show further
transaction between him and that company. On the contrary, from the
admission of receipt of Rs.15,00,000/ from plaintiff to defendant
shows that plaintiff has made out prima facie prayer about demand of
principal amount.
6. The plaintiff has asked total amount of Rs.25,80,000/ with
24%p.a. interest. As per case of the plaintiff Rs.15,00,000/ is the
principal amount till filing of the suit. Plaintiff has calculated interest
and accordingly due amount is Rs.25,80,000/ in the suit. Here as per
statement of the defendant Rs.15,00,000/ amount is forwarded by him
to Michigin and therefore, there is no any due from defendant to
plaintiff. The defendant has not produced any document and prima
facie admitted receipt of Rs.15,00,000/. The question of interest will be
considered lateron. Therefore, the plaintiff is not entitled for interest on
Rs.15,00,000/. The defendant has admitted receipt of Rs.15,00,000/
from plaintiff therefore, he is liable to pay the said amount to the
plaintiff. Accordingly, the Summons for Judgment deserves to be made
absolute partly to the extent of payment of Rs.15,00,000/. Therefore,
I answer to point No.1 partly in affirmative and 2 in the negative and
Summons for Judgment is partly allowed. Hence, following order is
passed:
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O R D E R
1. Summons for Judgment no.27/19 is made partly
absolute.
2. Leave to defend the suit is granted to the
defendants subject to deposit of amount of
Rs.15,00,000/(Rs.Fifteen Lacs) within 30 days
from the date of this order.
3. If defendant fails to deposit the amount within
stipulated time the plaintiff shall proceed with
the suit as if there is no defence.
4. The Summons for Judgment No.27/2019 is
disposed of accordingly.
(C.V.Patil)
Adhoc Judge,
City Civil Court,
Date: 21.02.2022 Gr.Mumbai.
Dictated on: 21.02.2022
Typed on : 21.02.2022
Signed on : 25.02.2022
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
25/02/2022 5.50p.m. Mrs.Jyoti Mane
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
21/02/2022
JUDGEMENT /ORDER signed by P.O. on 25/02/2022
JUDGEMENT /ORDER uploaded on 25/02/2022
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