Final Order 1

Order Details: Other
Pdf Text: MHCC010013632020
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
SUMMONS FOR JUDGMENT NO.17 OF 2020
IN
SUMMARY SUIT NO. 57 OF 2020
Ayub Mohammed Rafique Shaikh,
Adult, Indian Inhabitant of Mumbai,
Having his address at : 246/5, Ground Floor,
Gulam Hussain Building, Opp. Kurla Police,
Station, S. M. Marg, Kurla (West)
Mumbai-400070 ….Plaintiff
Versus
Uttam Thanmal Bhansali,
Adult, Indian Inhabitant of Mumbai
Having his address at: D/602, Jyoti Arch,
S.V. Road, Behind Om Sai Tata Showroom
Kandivali (West), Mumbai-400067 ....Defendant
SUIT FOR RECOVERY OF Rs.35,00,000/-
Appearance:-
Adv. Mr. Hussain for the Plaintiff.
Adv. Ms. Neeta Jain for the defendant.
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CORAM : HER HONOUR JUDGE
SMT. S.G. SHAIKH.
CITY CIVIL COURT, GR.MUMBAI
(C.R. NO.59).
DATE : 17/03/2021
ORDER
(Dictated and pronounced in Open Court.)
1. The plaintiff has brought this Summons for Judgment and
thereby directing the defendant to pay amount of Rs.35,00,000/- from
the date of the suit till its realization.
2. Perused the documents on record. Heard advocates of the
parties at the length. Perused the written notes of argument of the
parties.
3. The defendants appeared on Summons for Judgment and
filed reply/ leave to defend within limitation on the principal reason
that:-
i) That he and plaintiff were having business relations since
long time and defendant had issued several undated and
blank cheques and papers for the purpose of business and
plaintiff is misusing the same.
ii) That the transactions between them is different. According
to the defendant plaintiff has invested the amount in the
business of the defendant and both were going to share
profit in the same.
iii) The alleged promissory note is not issued by the defendant
as the signature on the same is different.
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4. There is no dispute as to passing of amount of
Rs.35,00,000/- from the plaintiff to the defendant. The defendant has
not denied the receipt of Rs.35,00,000/- from the plaintiff. The
question as to whether the said amount has been invested by the
plaintiff with the defendant for business, as to whether defendant has
issued blank cheques and signed documents in his favour during the
course of their business transactions and as to whether the alleged
promissory note is issued by the defendant or not, leads inference that
the defendant has probable defence. On going through the record of the
suit, it is necessary to interpret the actual transaction between the
parties and purpose of giving Rs.35,00,000/- to the defendant by the
plaintiff.
5. This Court neither intend to comment on the merits of the
case as this is not the stage of appreciation of evidence. But this case
being a case based on contract, it becomes necessary to generally assess
the strength of defences on the basis of documents and on the test of
base laws. It is also necessary to adjudicate the case on the basis of
evidence as to find out as to whether defendant is liable to pay amount
of Rs.35,00,000/- to the plaintiff or not.
6. In the opinion of this court, whether the plaintiff is entitled
to recovery of amount as claimed is the triable issue in this suit and this
issue can not be brushed aside on the procedure of summary suit.
7. In this background, it is held that defendant have made out
a case to allow them to leave to defend this suit. Defendant has
plausible defence. Therefore, the defendant should be allowed leave to
defend. However, if the defendant fails to prove the defence, it will
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have to pay the amount claimed to the plaintiff. Therefore, in order to
curtail the possibility of any relief from defendant's side, this court
desire to put the condition on the defendant to deposit 50% of principal
amount of Rs.35,00,000/- which comes around Rs.17,50,000/-. The
said amount shall be deposited by the defendant within four weeks In
consequence the Summons for Judgment is liable to be dismissed.
Hence, the following order is passed.
ORDER
1. Summons for Judgment No.17/2020 is dismissed.
2. Defendant is allowed to defend the suit on the condition that he
shall deposit amount of Rs.17,50,000/- within four weeks
from today and file his written statement.
3. Costs in cause.
4. Summons for Judgment No.17/2020 is disposed off accordingly.
(S.G. Shaikh)
Date : 17/03/2021 Judge, City Civil Court
Gr. Mumbai
Dictated on :17/03/2021
Typed on : 17/03/2021
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17/03/2021 05.00 p.m. ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.59)
Date of Pronouncement of
JUDGMENT/ORDER
17/03/2021
JUDGMENT/ORDER signed by
P.O.on
17/03/2021
JUDGMENT/ORDER uploaded on 17/03/2021
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