Final Order 1

Order Details: Other
Pdf Text: Summons for Judgment No. 38/2019 in 1 Order.
Sum.Suit No. 1153/18.
MHCC010010202019
Presented on : 28-01-2019
Registered on : 28-01-2019
Decided on : 31-01-2024
Duration : 5 years, 0 months, 3 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
SUMMONS FOR JUDGMENT NO. 38 OF 2019
IN
SUMMARY SUIT NO. 1153 OF 2018
Dhiraj K. Khemlani )
24, New Blue Gardenia, )
7th Floor, Peddar Road, )
Mumbai 400 026 )...Plaintiff
Versus
1) Gimmicks Global )
A Proprietor firm having its office )
At Asha Colony, Juhu Tara Road, )
Opposite Sea Princess Hotel, )
Juhu, Mumbai 400 049 )
2) Pradeep Hirani, Proprietor )
Residing at Asha Colony, Juhu Tara )
Road, Opp. Sea Princess Hotel, )
Juhu, Mumbai 400 049 )...Defendants
Snehal Mishra alongwith Ansul Bhuta, Advocate for the plaintiff.
Smita Sawant, Advocate for the defendants.
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Summons for Judgment No. 38/2019 in 2 Order.
Sum.Suit No. 1153/18.
CORAM : HIS HONOUR JUDGE SHRI S.D.KULKARNI.
(COURT ROOM NO.66).
DATE : 31st JANUARY, 2024.
ORDER
1. The plaintiff has filed the suit for recovery of Rs.7,28,288/-
alongwith interest at the rate of 15% p.a. with cost of the suit.
2. It is case of the plaintiff that the defendant approached the
plaintiff for an amount of Rs.5,00,000/- against the Bill of Exchange in
November, 2014. At the relevant time, defendant agreed to pay the
interest at the rate of 15% p.a. The plaintiff due to acquiring interest by
the defendant draw a Bill of Exchange dated 13/11/2014 to the
defendant, it was duly accepted by them. The defendant also issued a
cheque drawn on HDFC Bank dated 10/08/2015. The plaintiff called
the defendant for several times for return of amount, but defendant
every time postponed the payment under one pretext or the other. The
plaintiff has deposited the cheque given by the defendant but it was
dishonoured with remark that ‘Funds Insufficient’. The defendant failed
to repay the amount, therefore plaintiff issued notice to him and also
filed suit for recovery of amount alongwith 15% rate of interest. The
contention of the plaintiff that he has filed on record Bill of Exchange,
cheque given by the defendant, bank memos. The bank statement
specifically shows that amount directly transferred in the account of
defendant. Therefore plaintiff sufficiently made out the case for issuing
summons for judgment absolute. If summons for judgment is not
allowed, plaintiff will suffer irreparable loss.
3. The defendant opposed the summons for judgment by filing
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Summons for Judgment No. 38/2019 in 3 Order.
Sum.Suit No. 1153/18.
affidavit in reply on record. The defendant also prayed for
unconditional leave to defend. The contention of defendant that the suit
is not maintainable as it is not filed upon any Bill of Exchange. Further
contention of the defendant that the purported cheque was misused by
the plaintiff as defendant has handed over the same bill to one
Parasram Deepchand (broker). The said Parasram is used to arrange the
loan for defendant and other person. Plaintiff directly took the custody
of the said blank cheque, it is materially altered without the knowledge
and consent of the defendant. Therefore, plaintiff is not entitled for the
relief prayed. It is further alleged by the defendant that the plaintiff is
carrying business of money lending without any valid licence. When
defendant took the inspection of the document of the plaintiff, at that
time, the passbook of Eco Bank of plaintiff shows various interest
entries from various persons. Therefore, the contention of the defendant
that plaintiff is running money lending business without licence. The
contention of the defendant that plaintiff has misused the cheque
handed over by the defendant to his broker. Defendant never gave any
cheque to the plaintiff. Nothing filed on record to show that plaintiff
and defendant are known to each other and they have any
correspondence in between them. Hence, prayed for rejection of
summons for judgment.
4. Perused summons for judgment, affidavit in reply filed by
the defendant. Heard both advocates at length. I have also gone
through the written notes of arguments.
5. The advocate for the defendant submitted that if the
defendant raises any triable issue, if defendant indicates that he has a
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Summons for Judgment No. 38/2019 in 4 Order.
Sum.Suit No. 1153/18.
fair or reasonable defence, then defendant is entitled to unconditional
leave to defend unless there be any strong reason to deny the same. The
advocate for the defendant relied on the ratio laid down in the case of
B.L.Kashyap And Sons Limited V/s. JMS Steel And Power Corporation
And Another (2022) 3 Supreme Court Cases 294, therein it is held that -
“Therefore, while dealing with an application seeking leave
to defend, it would not be a correct approach to proceed as if
denying the leave is the rule or that the leave to defend is to
be granted only in exceptional cases or only in cases where
the defence would appear to be a meritorious one. Even in
the case of raising of triable issues, with the defendant
indicating his having a fair or reasonable defence, he is
ordinarily entitled to unconditional leave to defend unless
there be any strong reason to deny the leave.”
6. The advocate for the defendant further relied on the ratio
laid down in the case of Parekh Aluminex Limited V/s. Ashok
Commercial Enterprises and Anr. (Appeal No. 252/2014 - Hon’ble
Bombay High Court), therein it is held that -
“B. Civil Procedure Code, 1908, Order 37 – Bombay Money-
Lenders Act, 1946, Sections 2(9)(f), 2(17), 10 – Bombay
Money-Lenders Act was intended to do away with a very
serious evil in our society – It was intended to keep control
over money-lending transactions and to see that excessive
rate of interest was not charged by money-lenders – If a loan
falls within the ambit of the expression “suit to which this
Act applies’ in Section 2(17), a suit or proceeding to recover
the same would have to be dismissed in view of Section 10
unless the money-lender holds a licence at the relevant
time.”
7. So while deciding the summons for judgment, it is
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Summons for Judgment No. 38/2019 in 5 Order.
Sum.Suit No. 1153/18.
necessary to see whether the suit is maintainable under Order 37 of the
Code of Civil Procedure, whether the defendant has raised triable
issues, the theory put forth by the defendant is seems to be fair and
reasonable. The plaintiff has filed on record the copy of Bill of
Exchange, cheque issued by the defendant. So the contention of the
plaintiff that the amount is due and payable by the defendant.
8. The defendant come out with the case that there is no
written contract in between the parties. The contention of the
defendant that he had given a blank cheque to the broker who assist
defendant to raise loan. The plaintiff behind the back of defendant and
without his consent took the said cheque from the broker and by
misusing it filed the present suit. Defendant also raised the point that
plaintiff is doing the business of money-lending. Admittedly, it is
nowhere come on record that plaintiff and defendants are known to
each other. There is no agreement of any sale or purchase of any goods
etc. The contention of the defendant that plaintiff doing the business of
money-lending without license. The defendant never gave cheque to the
plaintiff. On the other hand, he stated the name of the broker to whom
he has handed over the alleged cheque. Therefore, in my opinion,
defendant have raised substantial defence and triable issue. Therefore,
certainly the defendant is entitled to leave to defend.
9. I have gone through the documents filed alongwith the
plaint. Then it reveals that the Bill of Exchange on demand was issued
by the plaintiff in favour of the defendant. The plaintiff has issued
notice to the defendant. Notice was duly served on the defendant. The
plaintiff has also filed the copy of bank statement which prima facie
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Summons for Judgment No. 38/2019 in 6 Order.
Sum.Suit No. 1153/18.
shows that amount of Rs.5,00,000/- paid by the plaintiff to the
defendant and it was duly accepted. Therefore, in my opinion,
defendant is entitled for the conditional leave to defend. The defendant
can be directed to deposit Rs.2,50,000/-in the court within 8 weeks and
on that condition leave to defend can be granted to the defendant.
Considering this, I pass the following order :
- ORDER -
1. Summons for Judgment No. 38/2019 stands rejected.
2. The conditional leave to defend granted to the defendant subject
to deposit of Rs.2,50,000/- in the court within the period of 8 weeks
from today.
3. Depositing abovesaid amount within time is a condition
precedent.
(S.D.KULKARNI)
Judge,
City Civil Court,
(Court Room No.66)
Date : 31/01/2024. Mumbai.
1. Dictated online on : 31/01/2024.
2. Placed for correction on : 05/02/2024.
3. Checked on : 12/02/2024.
4. Correction carried on : 13/02/2024.
5. Signed on : 13/02/2024.
6. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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Summons for Judgment No. 38/2019 in 7 Order.
Sum.Suit No. 1153/18.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
13/02/2024. 3.36 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri S.D.Kulkarni.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 31/01/2024.
Judgment/Order signed by P.O. on 13/02/2024.
Judgment/Order uploaded on 13/02/2024.
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