Final Order 1

Order Details: Other
Pdf Text: 1 SJ No.1518 in SU No.290113
Presented on 28.05.2013
Registered on 16.07.2013
Decided on 27.11.2018
Duration Yrs. M. Days
05 04 11
CNR No. MHCC010027032013
Exh.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.15 OF 2018
IN
SUMMARY SUIT NO.2901 OF 2013
(UNDER ORDER XXXVII OF THE CODE OF CIVIL PROCEDURE 1908)
Naveen Kumar Hazari, ]
An adult, Indian Inhabitant, Having Office ]
at Shop No.B1, Halima Apartment CHS, ]
S.M.D. Road, Antop Hill, Wadala, ]
Mumbai 400 037. ]...Plaintiff
V/s.
1. Mahendra Mangilal Choraria, ]
An adult, Indian Inhabitant. ]
2. Vanita Mahendra Choraria, ]
An adult, Indian Inhabitant. ]
Both are residing at C/711, Dosti Lilly, ]
Antop Hill, Mumbai 400 037. ]...Defendants
Advocate Ranawat for the plaintiff.
Advocate Shaikh for the defendants.
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 27th NOVEMBER, 2018.
ORDER
1. The plaintiff has taken out this summons for judgment against the
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defendants. Plaintiff filed suit for recovery of Rs.5,42,800/ with future
interest.
In short, facts of the suit are as under:
2. Plaintiff's contention is that defendant nos.1 and 2 are related to
each other as defendant no.1 is father of defendant no.2. The
defendant no.1 represented the plaintiff to be the directors of M/s.
Suketu Finvest Private Ltd., being a Company registered under the
provisions of the Companies Act, 1956. Defendant no.1 further
represented to the plaintiff that M/s. Suketu Finvest Private Ltd., is the
owner of the Flat no.201, situated on 2nd Floor, AWing, Halima
Apartment Cooperative Housing Ltd., S.M.D. Road, Antop Hill, Wadala,
Mumbai (hereinafter referred as the said flat).
3. Plaintiff's further contention is that defendant no.1 represented to
the plaintiff that M/s. Suketu Finvest Private Ltd., being the owner of
the said flat and being one of the directors of M/s. Suketu Finvest
Private Ltd., intended to sell the said flat. The plaintiff being interested
in acquiring the said flat. Accordingly, both the parties entered into
Agreement for Sale dated 30.10.2009. Plaintiff's further contention is
that as per the terms of the Agreement for Sale in respect of the said
flat, the consideration value of the said flat agreed was Rs.64,00,000/.
The plaintiff as per the agreed terms of the payment of the
consideration amount, the plaintiff made payment of amount of
Rs.14,00,000/ vide cheque no.464932 drawn on Dena Bank, Wadala
Branch dated 12.08.2009, for which the defendant no.1 issued a receipt
for the same, for and on behalf of M/s. Suketu Finvest Private Ltd.
Plaintiff's further contention is that for the balance consideration
amount of Rs.50,00,000/, the plaintiff sought to raise the said amount
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by seeking assistance from financial institution. The plaintiff applied to
a bank to get financial assistance for an amount of Rs.50,00,000/.
Plaintiff's further contention is that defendant no.1 in the intervening
period approached the plaintiff, before the balance consideration
amount of Rs.50,00,000/ is paid and requested the plaintiff to release
an amount of Rs.5,00,000/, which the defendant no.1 undertook to
repay the plaintiff as and when the financial institution release the loan
amount in favour of defendant no.1, in the balance consideration
amount of the said flat.
4. Plaintiff's further contention is that on the request made by the
defendant no.1, the plaintiff released an amount of Rs.5,00,000/ in
favour of the defendant no.1 by cash which was duly received by the
defendant no.1 and accordingly, the defendant no.1 gave
acknowledgement in writing by issuing receipt dated 19.03.2010.
Plaintiff's further contention is that plaintiff sought the financial
assistance and financial institution released an amount of
Rs.50,00,000/ in favour of defendant no.1. The defendant no.1 on
receipt of the amount of Rs.50,00,000/ in discharge of his liability
towards repayment an amount of Rs.5,00,000/ made payment an
amount of Rs.40,000/ in cash and balance amount of Rs.4,60,000/ by
issuing cheque bearing no.066813 dated 29.06.2010 issued from the
joint account of both the defendants, which cheque was jointly executed
by both the defendants. The said cheque was dishonoured for the
reason that payment stopped by the drawer hence, the plaintiff filed the
suit for recovery of Rs.5,42,800/ with future interest an amount of
Rs.4,60,000/.
5. After receipt of summons, the defendant appeared then, plaintiff
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has taken summons for judgment. Defendant filed affidavit to leave to
defend. Defendants contention is that plaintiff in order to extract
money from the defendants have taken various contrary grounds from
time to time. Plaintiff has been a habitual borrower from banks and
financial institutions for personal loans, housing loans and credit card
loans and persistently defaulted in his financial commitment to repay
the equated monthly installments.
6. Defendants further contention is that after making deal with the
plaintiff to sell the Flat no.201, the plaintiff offered him to buy his Flat
no.C7 and accordingly, plaintiff also prepared a MOU for the same and
defendant no.1 handed over the cheque of Rs.4,60,000/ to the
plaintiff. Since the plaintiff later called off the deal of the Flat no.C7,
he made stop payment of the said cheque of Rs.4,60,000/ under
instructions of plaintiff himself. Defendants further contention is that
the plaintiff is already a debtor in the books of the defendant no.1 for
Rs.5,000/ since the year 2005 which was taken as an advance by the
plaintiff to render services but later converted to personal loan. In the
year, 2005, the plaintiff had taken Rs.95,000/ from M/s. Suketu
Finvest Private Ltd., which is still due to be paid by the plaintiff.
Defendant no.2 is nowhere concerned either with the M/s. Suketu
Finvest Private Ltd., or any of the transaction of Flat no.201 or Flat
no.C7.
7. Defendants further contention is that as per the Agreement for
Sale dated 30.10.2009 in respect of the Flat no.201 gives the right to
defendant no.1 as a director of M/s. Suketu Finvest Private Ltd., to
forfeit an amount of Rs.5,00,000/ from the part payment of
Rs.14,00,000/ made by the plaintiff if the balance is not paid on or
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before 10.11.2009. If defendant no.1 had intention to grab an amount
of Rs.5,00,000/ from the plaintiff or had he in extreme need of
Rs.5,00,000/ then why he would borrow the amount from plaintiff as
alleged while he was a director of M/s. Suketu Finvest Private Ltd., had
ample opportunity to cancel the agreement on behalf of the company
and forfeit the amount of Rs.5,00,000/ from the said amount of
Rs.14,00,000/. Defendants further contention is that all the dealings
of Flat no.201 and C7 were held in Flat no.C3 and Flat no.201 of
Halima Apartment, the plaintiff had also fabricated the Agreement for
Sale dated 30.10.2009 for which the defendant no.1 had made
necessary application before the Ld. Metropolitan Magistrate Court, in
the pending complaint under Negotiable Instrument Act.
8. Defendants further contention is that plaintiff took over months
to pay the balance amount to the said M/s. Suketu Finvest Private Ltd.
The plaintiff had taken forceful possession of the Flat no.201 and had
also taken into custody various statutory and personal documents and
article belonging to the defendant no.1, the company owning the
premises, and its clients which were lying in the Flat no.201. Defendant
denied that he had approached the plaintiff for release an amount of
Rs.5,00,000/ and plaintiff had paid an amount of Rs.5,00,000/ by way
of advance and defendant no.1 executed a receipt for the same. The
said receipt is forged and fabricated by the plaintiff. Defendants further
contention is that on 19.03.2010 on the date of alleged receipt the
defendant no.1 was in Dahanu in the factory of M/s.Ronald Mixers to
carry out physical verification of the raw materials stores and spares of
M/s. Ronald Mixers. Defendants further contention is that the said
cheque of Rs.4,60,000/ was given by defendant no.1 to the plaintiff for
the purchase of Flat no.C7, Halima Apartment which was offered by
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the plaintiff to sell. However, the said deal was called off by the
plaintiff. Plaintiff did not return the said cheque saying that his peon
might have deposited the said cheque and therefore, advised him to
give stop payment instruction on the said cheque of Rs.4,60,000/.
With this, defendants prayed for granting unconditional leave to defend
the suit by filing written statement.
9. Advocate for plaintiff submitted that defendants nowhere denied
that defendant no.1 agreed to sell his Flat no.201 to plaintiff and
towards the said consideration the plaintiff paid amount to the
defendant no.1. Advocate for plaintiff further submitted that the
defendant made payment of Rs.5,00,000/ for which he gave the
amount to the defendant no.1 and defendant no.1 acknowledged the
said amount. The defendant no.1 for repayment of Rs.5,00,000/ gave
Rs.40,000/ in cash and issued cheque of Rs.4,60,000/ which was
dishonoured. Advocate for plaintiff further submitted that according to
defendant there was Agreement to Sale defendant's flat to plaintiff and
for that plaintiff paid the amount then, the defendant has not produced
any document nor filed any legal proceedings so, defendant's theory is
not acceptable. Advocate for plaintiff further submitted that defendant
is to speak specifically what has forged and it is not specifically pleaded
about forged then, only defendant has taken defence of forged which
cannot be considered while deciding summons for judgment. He relied
upon Civil Appeal No.2656 of 2009, State of Orissa and Ors. V/s.
Harapriya Bisoi of Hon'ble Supreme Court. He also relied upon
Civil Appeal No.10860 of 2016, IDBI Trusteeship Services Ltd., V/s.
Hubtown Ltd.
10. Advocate for defendants submitted that the plaintiff agreed to sell
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his Flat no.C7 to defendant and later on he cancelled to sell his flat.
Advocate for defendants further submitted that the plaintiff issued a
cheque of Rs.4,60,000/ towards purchase of defendant's flat. Advocate
for defendants further submitted that if the plaintiff would have in need
of amount he would forfeit the amount of plaintiff which is made
towards advance for sell of Flat no.201. Advocate for defendants
further submitted that the defendant no.1 produced xerox copy of draft
Agreement for Sale of Flat no.C7 of plaintiff. Advocate for defendants
further submitted that on 19.03.2010 when allegedly the defendant
made an acknowledgement of Rs.5,00,000/, defendant no.1 was at
Dhanau for physical verification of raw materials towards and M/s.
Ronald Mixers for that he produced letter of Chartered Accountant of
M. L. Choraria i.e., defendant no.1 being the proprietor of M. L.
Choraria & Associates. Advocate for defendants further submitted that
when there are allegations of forgery unconditional leave to defend the
suit is to be granted. Advocate for defendants relied upon 2003 SCC
Online Bom. 1038, Smt. Sheel Arora V/s. Sanjay Fetah Bahadur
Sriastava. Advocate for defendants also relied upon (2015) 10
Supreme Court Cases 521, State Bank of Hyderabad V/s. Rabo
Bank.
11. I have gone through the pleadings of both the parties. There is
no much disputed that Flat no.201 belongs to M/s. Suketu Finvest
Private Ltd. Defendant no.1 is a director of M/s. Suketu Finvest Private
Ltd. Defendant no.1 agreed to sell Flat no.201 to plaintiff and received
the consideration. According to defendants, possession was taken
forcibly. I find the issue is not of purchase of Flat no.201 and
possession, issue is whether the plaintiff made advance of Rs.5,00,000/
to the defendant no.1 and for repayment of said amount the defendant
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no.1 made payment of Rs.40,000/ in cash and gave cheque of
Rs.4,60,000/ drawn on Saraswat Cooperative Bank. After cheque is
dishonoured, plaintiff issued notice dated 22.07.2010 to the defendants
mentioning Agreement for Sale of Flat no.201, Halima Apartment and
also mentioned defendant no.1 has taken an amount of Rs.5,00,000/
with promised to deduct the said amount from the balance amount of
Rs.50,00,000/.
12. Plaintiff specifically pleaded after sanctioning loan of
Rs.50,00,000/ bank issued cheque of Rs.50,00,000/ in favour of
defendant. The defendant no.1 replied by notice dated 04.08.2010 in
which he denied that there is agreement between him and plaintiff in
respect of Flat no.201, Halima Aparment. However, he pleaded that
plaintiff has agreed to sell his flat bearing no.C7, Halima Apartment to
the defendant and for that purpose he handed a cheque of
Rs.4,60,000/ drawn on Saraswat Cooperative Bank, by way of earnest
amount. He also contended that plaintiff has taken cash of Rs.40,000/
from him exclusively for the transaction of C7 flat. Defendant no.2
gave reply and denied signature on cheque and she is not liable to pay
any amount. I find that the defendant not filed any proceedings for
recovery of forceful possession of Flat no.201, nor filed suit for specific
performance of Flat no.C7. There is no written agreement about sale
of flat of C7 by plaintiff to defendant. The defendant admitted
issuance of cheque of Rs.4,60,000/ which is dishonoured. There is no
triable issues of fraud in this case. On the contrary, it shows the
plaintiff paid an amount of Rs.5,00,000/ to the defendant no.1 and for
that defendant no.1 issued cheque of Rs.4,60,000/ which was
dishonoured. There is no clause of interest nor in plaint so, plaintiff is
not entitled for full claim, plaintiff is only entitled to recover cheque
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amount, so, I find that plaintiff is entitled to recover an amount of
Rs.4,60,000/ with interest at the rate of 6% from the date of suit till
realization of amount. Accordingly, I proceed to pass the following
order :
O R D E R
Summons for Judgment No.15 of 2018 is made absolute.
1. Suit is decreed.
2. The defendant nos.1 and 2 do pay jointly and severally to the
plaintiff a sum of Rs.4,60,000/ (Rupees Four Lakhs Sixty Thousand
Only) with further interest at the rate of 6% per annum from the date of
filing of the suit till its full realization.
3. Defendant nos.1 and 2 do pay cost of the suit to the plaintiff.
4. Decree be drawn up accordingly.
( KALPANA S. HORE )
Judge,
Dated : 27/11/2018 City Civil Court, Gr. MUMBAI
Dictated on : 27/11/2018
Transcribed on : 27/11/2018
Signed on : 27/11/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
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28.11.2018 4.43 p.m. ARUN ANNAMALAI MUDALIYAR
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HHJ Smt. K. S. HORE (CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
27.11.2018
JUDGEMENT /ORDER signed by
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27.11.2018
JUDGEMENT /ORDER uploaded
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