Final Order 1

Order Details: Other
Pdf Text: SJ 33/19 SUM.SUIT 964/2016 1
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT NO.33 OF 2019
IN
SUMMARY SUIT NO. 964 OF 2016
(CNR.NO.MHCC010008452019)
1. Madhukar s/o Ramaji Raut age 65
2. Shila w/o Madhukar Raut age 57
3. Amar s/o Madhukar Raut
All adult R/o Satguru Niwas,
Bungalow No.26, near Bungalow No.1,
Mhada Colony, Mulund(W),Mumbai400 081. ...Plaintiffs.
V/s.
1. Piyush N Mehta, age 45 years
2. Mr.Dharmendra N Mehta, age 42 year
Residing at 176/4898, Happy Home,
CHS Ltd.,Pantnagar, Ghatkopar(E),
Mumbai400 075.
3. M/s.Prime Enterprises
Through its partner and Director
Office at 303, Nainkrupa Building,
118/112, Kazisayyed Street, Masjid,
Mumbai400 03. ...Defendants.
Appearances:
Advocate Mr.Nishigandh N Patil for the Plaintiffs.
Advocate Mr.Rajesh Naik for the Defendants.
CORAM : HIS HONOUR JUDGE
M.S.LONE
(C.R.NO.28)
DATED : 2ND AUGUST 2019
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ORAL O R D E R
This is summons for judgment for decree of Rs. 15,00,000/.
2. The plaintiffs case in nutshell is that plaintiff No.1 is a practicing
advocate, plaintiff No.2 is his wife and plaintiff No.3 is his son.
Through one Bhupendra Rawal plaintiff No.1 was introduced to
defendants. The defendants represented themselves as a manufacturer
in plastic goods conducting business under name and style of M/s.Prime
Enterprises. The manufacturing unit of defendants is at MIDC, Tarapore
Bhoisar, District Thane. Defendant No.1 and 2 visited the residence of
plaintiff no.1 and requested plaintiff to visit their manufacturing unit at
Tarapur. Plaintiff No.1 visited the manufacturing unit and at that time
defendant No.1 & 2 requested plaintiff for a hand loan of Rs.
10,00,000/ for repairing the machines to manufacture goods.
Thereafter,plaintiff no.1 took defendants to his residence and in the
presence of other plaintiffs agreed to give hand loan of Rs. 10,00,000/
and accordingly on 15/10/2010 plaintiff No.1 issued a cheque of
Rs.10,00,000/ and handed over to defendant No.2. The said cheque
was encashed by defendants. Defendants gave assurance to repay the
said amount by 15/10/2013. Defendants also promised to plaintiff that
if they do not repay the said amount till 15/10/2013 they would be
liable for compensation of Rs.20,00,000/. Defendants also executed the
loan agreement on 15/10/2010 in favour of plaintiffs. Thereafter, again
defendants approached the plaintiff for hand loan of Rs. 10,00,000/
and by two cheques plaintiffs gave Rs. 10,00,000/ to defendants. To
gain the faith of plaintiff, defendants have returned Rs. 5,00,000/ by
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SJ 33/19 SUM.SUIT 964/2016 3
cheque to plaintiff.
3. It is further case of plaintiff that on 04/10/2013 defendant No.1
requested plaintiffs to extend time for repayment and agreed to pay
compensation of Rs.1,00,000/ in addition to due amount of
Rs.14,00,000/. Defendants have acknowledged and admitted to repay
the amount of Rs.15,00,000/ to plaintiff. As defendants were reluctant
to pay the loan amount, plaintiffs filed criminal complaint against
defendants and on the basis of written agreement has filed this
summary suit.
4. After appearance of defendants , plaintiff has taken out this
summons for judgment.
5. The defendants resisted the summons for judgment and has
prayed for permission to file unconditional leave to defend the
defendants and challenged the maintainability of this suit as it is not
based on any negotiable instrument. Further, the defendants have taken
the defence of limitation. It is further stated that plaintiff No.1 was legal
advisor of defendants company. In the year 2010 defendants have
experienced several financial crunches hence, on 14/10/2010 plaintiff
offered to deposit a loan of Rs.10,00,000/ with defendant company on
condition of interest @ 18% p.a.. The defendants have paid interest to
plaintiff. As defendants were regularly paying interest to plaintiff on
17/01/2012 plaintiff No.1 offered to give loan of Rs. 10,00,000/ that
has been accepted by defendants in the year 2012. Plaintiff No.1
suffered heart attack and therefore Rs. 5,00,000/ was refunded by
defendants from time to time defendants had repaid the loan amount.
Therefore, no amount is due on defendants.
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6. Heard Ld.counsel for plaintiff and Ld.counsel for defendants.
7. From the material on record following points come for my
determination and my findings with reasons are as follows:
POINTS FINDINGS
1.Whether the plaintiffs are entitled
for summons for judgment?
No
2. Whether defendants are entitled
for leave to defend, if yes whether
conditional or unconditional?
Yes
on condition as stated
in final order
3. What order ? As per final order
REASONS
AS TO POINT NOS. 1 TO 3
8. Ld.counsel for plaintiff has submitted that defendants have
admitted their liability. Defendants have never denied in their reply
about execution of loan agreement. As defendants have admitted their
liability, the summons for judgment should be made absolute.
9. To support his argument Ld.counsel has relied on copy of loan
agreement, copy of bank statement showing payments made to
defendants, copy of extension of time for payment of loan.
10. The Ld.counsel for defendants have submitted that the claim of
plaintiffs is based on unregistered documents. The suit is barred by
limitation. The defendants have already paid whole loan amount to
plaintiff and therefore, unconditional leave to defend should be granted
to defendants.
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11. To support his arguments, Ld.counsel relied on account ledger of
plaintiff No.1 maintained by defendants, Bank statement, copy of
roznama of criminal case showing the case filed by the plaintiff against
defendants is dismissed.
12. In rejoinder the plaintiffs have reiterated the claim that
defendants have taken loan of Rs.15,00,000/ from them. The plaintiffs
have denied the defence of defendants. The Ld.counsel for plaintiffs
have further submitted that the order of Criminal Court is not binding
on Civil Court.
13. This case is based on loan transaction. According to plaintiff on
15/10/2010 Rs.10,00,000/ were given as a loan to defendants. The
defendants have admitted this liability. Their only defence is that they
have repaid the whole amount. The defendants have challenged this
suit on the point of limitation. The limitation to file suit for recovery of
amount is 3 years in this case. That limitation would start from
15/10/2010. The limitation to file suit ends on 15/10/2013. This suit is
filed in the year 2016. However, the period of limitation is extended by
written documents dated 04/10/2013 which is documents executed
before the expiry of limitation period. Therefore,as per section 18 of the
Limitation Act 1963 fresh period of limitation starts from 04/10/2013
which ends on 04/10/2016. This suit is filed on 09/08/2016 which is
well within limitation. The above observations is made because
defendants have not denied the execution of either loan agreement or
of documents extending the time for repayment of loan.
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14. According to the defendants they have filed account ledger of
plaintiff No.1. If that account ledger is perused, it shows certain
payments are made but it is the triable issue that whether those
payments were made to plaintiff and no other persons this is because in
the account ledger there are entries of name of advocate and about
amount withdrawn by cash. Defendants claim the withdrawn amount is
given to plaintiffs and the entries of bank belongs to plaintiff account.
This can only be decide by a full fledge trial. There are various
transactions between plaintiffs and defendants. Therefore, the triable
issues are raised by defendants. Prima facie defendants have admitted
that they have accepted the amount from plaintiff. On the basis of
contention of both sides and after perusing the documents on record, at
this juncture, it will not be proper to made summons for judgment
absolute. On the other hand, defendants have triable issues and have
also not denied about acceptance of Rs.15,00,000/from the plaintiff.
On this background on appropriate condition, leave to defend can be
granted to defendants. Therefore, point No.1 is answered as 'No' and
point No.2 is answered as 'Yes' with condition as stated in filing order
and following order is passed.
ORDER
1. Summons for Judgment No.33/2019 stands rejected.
2. Leave is granted to defendants to defend this subject to condition
of depositing Rs.15,00,000/(Rupees Fifteen lacs only) in court within
4 weeks from the date of order.
3. After payment of amount of Rs.15,00,000/(Rupees Fifteen lacs
only) as ordered, the Registrar of the court is directed to take necessary
steps to convert the suit from summary to short cause.
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4. On depositing the aforesaid amount of Rs.15,00,000/(Rupees
Fifteen lacs only). Registrar is directed to invest the said amount in any
nationalized bank for initial period of one year and seek further
directions of the court as and when required in this respect.
5. Summons for Judgment No.33/2019 is disposed of accordingly.
(M.S.LONE)
Judge,
Date: 02/08/2019 City Civil Court,Gr. Bombay
Dictated on : 02/08/2019
Transcribed on : 14/08/2019
Signed on : 19/08/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
20/08/2019 at 11.50p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Shri.M.S.Lone
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
01/08/2019
Judgment/Order signed by P.O. on 19/08/2019
Judgment/Order uploaded on 20/08/2019
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