Final Order 1

Order Details: Other
Pdf Text: ..1.. Summons for Judgment No.9/2020
MHCC010008482020 Presented on : 22/01/2020
Registered on : 22/01/2020
Decided on : 16/10/2024
Duration : 04Y 08M 26D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
SUMMONS FOR JUDGMENT NO.9 OF 2020
(CNR NO.MHCC01-000848-2020)
IN
SUMMARY SUIT NO.935 OF 2018
Mr. Samir M. Jhaveri )
An adult, Indian Inhabitant, Occupation : )
Business, residing at Flat No.2, Roshni )
Building, Motibai Street, Grant Road (W), )
Mumbai – 400 007. )...Plaintiff
VERSUS
1. Mr Pramod Shankar Tambe )
An adult, Indian Inhabitant, residing )
at 601 A, Om Sundaram, Keshav Park, )
Uttan Road, Opposite Datta Mandir, )
Bhayander West, Pin : 401101. )
2. M/s Sareeta Infrastructure and )
Housing Development Corporation, )
having its address at, 601 A, Om )
Sundaram, Keshav Park, Uttan Road, )
Opposite Datta Mandir, Bhayandar )
West, Pin : 401101. )
3. Mrs Sareeta Pramod Tambe, )
An adult, Indian Inhabitant, residing )
at 601 A, Om Sundaram, Keshav Park, )
Uttan Road, Opposite Datta Mandir, )
Bhayander West, Pin : 401101. )...Defendants
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..2.. Summons for Judgment No.9/2020
Appearance :-
Learned Advocate Vineet Saraf for plaintiff.
Learned Advocate Sandeep Dubey for defendants.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84
DATE : 16/10/2024.
O R D E R
1 This suit is filed by plaintiff for recovery of amount,
contending that he had advanced an amount of Rs.6,00,000/- to the
defendants. It is the contention of plaintiff that he advanced friendly
loan of Rs.3,00,000/- on 20/08/2014, defendant No.1 accepted and
executed the friendly loan receipt, confirming the receipt of
Rs.3,00,000/- and that the cheque was tendered to the plaintiff with
promise to pay within 9 months. On 07/05/2015, again plaintiff has
advanced friendly loan to the defendants. The partner of defendant
No.2 executed friendly loan receipt payable within 15 days confirming
the receipt of loan of Rs.3,00,000/- and signed the friendly loan receipt
as partner of defendant No.3. Thus, plaintiff has advanced a total of
Rs.6,00,000/- to the defendants. Having failure on the part of
defendants to repay the amount, plaintiff has issued notice to the
defendants through advocate on 06/12/2018 and after the receipt of
notice, defendants contacted plaintiff and instructed him to deposit the
cheques in the bank for encashment, however, on depositing the said
cheques, it returned dishonoured. Therefore, plaintiff again issued
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..3.. Summons for Judgment No.9/2020
notice to the defendants as per the provisions of Negotiable Instrument
Act. Having failure on the part of defendants to pay the amount of loan,
plaintiff has filed this suit for recovery of amount of Rs.6,00,000/- with
interest and calculated the claim to Rs.10,20,000/-
2 In response to the writ of summons, defendants appeared
and thereafter, plaintiff took out summons for judgment. The
defendants have filed their reply resisting the contentions contending
that plaintiff is in business of money lending without license. Therefore,
no decree can be passed against them. It is further contended that
plaintiff has caused delay in taking out summons for judgment,
therefore, they are entitled for for leave to defend. It is their contention
that the cheques were tendered to the plaintiff as security and the same
are misused by the plaintiff. It is the contention that the defendants
have paid cash to the plaintiff towards full and final settlement of loan
transaction and prayed for dismissal of summons for judgment and
unconditional leave to defend.
3 Heard learned advocates of rival parties. Plaintiff as well as
defendants tendered written notes of argument. They both have relied
on the citation. Defendants have mentioned citations in his written
notes of argument. I have gone through the cited case mentioned in the
written notes of argument. Definitely, while deciding the summons for
judgment and in the plea of defendants to grant unconditional leave,
the Court is bound to consider parameters enumerated by the Hon’ble
Supreme Court in case of IDBI Trusteeship Services Limited Vs.
Hubtown Limited reported in (2017) 1 SCC 568. Further it is the
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..4.. Summons for Judgment No.9/2020
contention of defendants that there is delay in taking out summons for
judgment, therefore, they are entitled for unconditional leave to defend.
No doubt the delay in taking out summons for judgment is a point to be
considered while deciding summons for judgment or plea of defendants
for unconditional leave, it cannot be the sole criteria for granting
unconditional leave.
4 It is another defence taken by the defendants that the
plaintiff is a money lender carrying out money lending business,
therefore, they are entitled for unconditional leave to defend. I am
enlightened by the judgment passed by the Hon'ble Bombay High Court
in the case of Mahesh P. Raheja and others Vs. Base Industries Group
and others passed in Chamber summons No.488 of 2018 in Comm
Execution Application No. 63 of 2017, wherein at paragraph No.36, the
Hon’ble Lordship has culled out the guidelines to ascertain carrying
money lending business without license. Thus, it requires parties to lead
evidence.
5 Considering the reply of defendants, it appears that
defendants have admitted the receipt of loan amount and contended in
paragraph No.2(f) of the reply that defendants have paid cash to the
plaintiff towards full and final settlement, but no proof is brought on
record, thus, the contention of defendants that they have paid cash to
the plaintiff towards full and final settlement amounts admission of
liability and until and unless the defendants deposit the amount of the
loan, the leave cannot be granted as per the guidelines of IDBI
Trusteeship Services Supra, hence, I am of the view that defendants are
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..5.. Summons for Judgment No.9/2020
required to deposit the amount of loan i.e. Rs.6,00,000/- to raise
defence. Hence, I proceed to pass following order :-
ORDER
1. Summons for Judgment No.9 of 2020 in Summary
Suit No.935 of 2018, is disposed of in terms of
following order -
p
2. Leave is granted to the defendants to defend the suit
subject to depositing in this Court a sum of
Rs.6,00,000/- within a period of one month from the
date of order and shall file written statement within
30 days, thereafter.
3. After depositing the amount, the PLA Section is
directed to invest the same into Fixed Deposit, till
disposal of the suit or till further order.
4. If this conditional order of deposit is not complied
within the stipulated period, as mentioned
hereinabove, the plaintiff shall be entitled for an
ex-parte decree against defendants after obtaining a
non-deposit certificate from the PLA Section.
5. 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: 16/10/2024. Court Room No.84
Dictated on : 16/10/2024.
Transcribed on : 17/10/2024.
Signed by HHJ on : 19/10/2024.
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..6.. Summons for Judgment No.9/2020
“Certified to be true and correct copy of the original signed order”.
21/10/2024
at about 3.45 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 : 16/10/2024
Order signed by Hon'ble Judge on : 19/10/2024
Order uploaded on : 21/10/2024
at about 3.45 p.m.
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