Order 1

Order Details: Copy of Judgment
Pdf Text: Com. Suit No.498/2021 1 Judgement
MHCC010014622018
Presented on : 25012018
Registered on : 28012020
Decided on : 08.01.2024
Duration : YY: MM: DD
06: 06: 07
Exhibit34
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
MAZGAON BRANCH
COMMERCIAL SUIT NO. 498 Of 2021
Mr. Tilak Premji Dehia
Age: 64 years, Occu: Business
Address: 26 Khimji Maharaj Bldg.
M. G. Road, Mulund (W),
Mumbai400080 ... Plaintiff.
V/s.
Mr. Kaushik N. Maru
Adult. Age is not known.
Director Polo Hotel Ltd.,
19 Siddhivinayak Plaza,
Chikoowadi, BorivaliWest,
Mumbai400092 ... Defendant.
CORAM : HIS HONOUR JUDGE
SHRI. VIRENDRA. D. KEDAR
(COURT ROOM NO.14)
DATE : 08th DAY OF JANUARY 2024
: Appearances:
Plaintiff in person.
Defendant Exparte.
JUDGMENT
1. The plaintiff has filed the present suit for recovery of sum
of Rs.47,73,250/ together with interest @ 18 % per annum from
14.11.2017 till its full realization or return of 586394 shares of
Polo hotel with all kinds of rights till its full realization or value of
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Com. Suit No.498/2021 2 Judgement
586394 shares of Polo Hotel at highest rate with its full realization
alongwith costs.
2. Briefly stated facts of the case are as under:
The defendant approached to the plaintiff and represented
that soon he becomes a Director of Public Limited Company
namely 'Polo Hotel Limited' and requested to invest in his
company. Accordingly, as per terms agreed through email dated
24.07.2014, and relying upon representation of the defendant, the
plaintiff invested huge fund for the transactions of purchase of
Polo Hotel shares. The defendant transferred 10,000 shares of Polo
Hotel Ltd., to Demat Account of the plaintiff. The defendant had
also issued cheque bearing No.145511 dated 24.10.2014 for Rs.11
Lakhs drawn on ICICI Bank, Bhayander branch, Thane in favour of
the plaintiff.
3. It is further submitted that when the defendant was not
able to repay M to M payment, telephonic settlement arrived on
15.12.2014 in between the plaintiff and the defendant.
Accordingly, the defendant issued cheque No.6446 of Rs.15 Lakhs
dated 20.12.2014 in favour of the plaintiff drawn on ICICI Bank,
Borivali (West) Branch, Mumbai, out of balance due amount of
Rs.20,30,000/. The defendant further agreed to pay remaining
balance of Rs.5,30,000/ within short time.
4. The plaintiff on the request of the defendant has sent Email
Dated 15.01.2015 regarding acknowledgement of receipt of
cheques. As per settlement/Statement of Account dated
15.12.2014, the defendant has to pay a sum of Rs.40,80,000/ to
the plaintiff towards discharged of his liability. However, the
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Com. Suit No.498/2021 3 Judgement
defendant had issued cheque No.145511 of Rs.11 Lakhs and
10,000 shares of Polo Hotel Ltd. (Worth @ 1.5 Lakhs); Cheque of
Rs.15 Lakhs bearing No.6446 and Rs.8 Lakhs (as value of 52,600
shares) totalling to Rs.35.50 Lakhs with assurance to clear balance
payment of Rs.5,30,000/.
5. It is submitted that as per request of the defendant, the
plaintiff presented both the cheques for its realization on
19.01.2015 with his banker i.e., IDBI Bank, Mulund (West)
Branch, Mumbai. But surprisingly said cheques were dishonoured
with remark, “Fund insufficient” on 20.01.2015. The plaintiff
received its memo on 26.01.2015. Thereafter, the plaintiff
contacted to the defendant and requested to make the payment.
Again on 05.02.2015, the plaintiff presented Cheque No.6446 of
Rs. 15 Lakhs with his banker. However, it was dishonoured for the
reason “Fund Insufficient”. The plaintiff received Bank Memo on
13.02.2015. Thus, the plaintiff issued notice through his advocate
on 18.02.2015, which was received by the defendant on
19.02.2015. But the defendant neither replied nor complied the
same. Hence, the plaintiff has filed complaint under section 138 of
the Negotiable Instrument Act, before the Metropolitan Magistrate,
Mulund, Mumbai.
6. It is further submitted that, thereafter again as a last
chance, the plaintiff had issued notice on 27.11.2017, demanding
due amount of Rs.47,73,250/ with interest @ 18% per annum
from the defendant. But the defendant neither replied nor paid any
amount. Hence, the suit.
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Com. Suit No.498/2021 4 Judgement
7. Inspite of service, the defendant failed to appear. Hence,
suit proceeded without appearance of the defendant vide order
dated 10.03.2022.
It is to be noted that initially the suit was registered as
Summary Suit No.146 of 2020, but lateron, on dated 26.07.2021
it was converted into Commercial Suit.
8. In support of his claim, the plaintiff has filed claim affidavit
(Exh.5). The plaintiff relied upon the documents such as, Email
dated 24.07.2014 (Exh.7); Memorandum of Understanding dated
23.07.2014 (Exh.8); Certificate under section 65B of Evidence Act
(Exh.9); Affidavit in support of said certificate (Exh.10); Email
dated 24.07.2014 (Exh.11); Certificate under section 65B of
Evidence Act (Exh.12); Affidavit in support of said certificate
(Exh.13); Cheque No.145511 dated 24.10.2014 (Exh.14);
Statement of Account dated 15.12.2014 (Exh.15); Email dated
15.17.2015 (Exh.16); Certificate under section 65B of Evidence
Act (Exh.17); Affidavit in support of said certificate (Exh.18);
Cheque No.6446 dated 20.12.2014 (Exh.19); Bank Deposit Slip
dated 09.01.2015 (Exh.20); Bankers returns Memo dated
20.01.2015 (Exh.21); Bank Deposit Slip dated 05.02.2015
(Exh.22); Bankers returns Memo dated 06.02.2015 (Exh.23);
Legal Noticed dated 17.02.2015 (Exh.24); Speed Post receipt
(Exh.25); Postal Track Report dated 03.02.2015 (Exh.26);
Statement of Account dated 31.03.2015 (Exh.27); Notice cum
demand letter dated 15.11.2017 (Exh.28); Postal receipt (Exh.29);
Postal Track Report (Exh.30) and Reply by Department of Post
dated 30.01.2018 (Exh.31).
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Com. Suit No.498/2021 5 Judgement
9. Heard, the plaintiff in person. He also filed written notes of
arguments (Exh.33). Perused the record.
10. Following points arise for my determination, to which I
have given my findings with reasons as follows:
Sr.
No.
Points Findings
1. Whether the plaintiff proved that
the defendant had issued cheques of
Rs.11 Lakhs and 15 Lakhs towards
discharged of his liability?
Yes.
2. Whether the plaintiff is entitled for
recovery of amount of
Rs.47,73,250/ alongwith interest
@ 18% as claimed?
Partly Yes.
3. Whether the suit is within
limitation?
Yes
4. What Order and Decree? As per final order.
REASONS
As to point no.1:
11. The plaintiff deposes that on the request and representation
made by the defendant he had invested huge amount for the
transactions of purchase of Polo Hotel Shares. As per the agreed
terms dated 24.07.2014, the defendant transferred/gave 10,000
shares of Polo Hotel Ltd., to his Demat Account. The defendant
had issued cheque of Rs.11 Lakhs bearing Cheque No.145511
dated 24.10.2014 and 10,000 shares of Polo Hotel, as well as,
cheque of Rs.15 Lakhs bearing cheque No.6446 and 52,600 shares
worth Rs.8 Lakhs, towards part payment of Rs.40,80,000/ with
assurance to clear balance amount of Rs.5,30,000/ at earliest.
However, when the plaintiff had presented both cheques on
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Com. Suit No.498/2021 6 Judgement
19.01.2015, they were dishonoured for the reason “Fund
Insufficient”, in the account of the defendant. The plaintiff again
presented cheque no.6446 on 05.02.2015, however, it was also
dishonoured for the said reason. The plaintiff received bank memo
on 20.01.2015 and 13.02.2015 respectively.
12. Upon perusal of the documents such as copy of email dated
24.07.2014 alongwith Memo it reveals that the plaintiff only
requested to confirm that when they can do transactions. He
further asks regarding mode of transactions. The Memorandum of
Understanding does not bear signature of any party. The plaintiff
has filed the copy of Cheque dated 10.01.2014 alongwith
statement of account wherein it reveals that defendant had
purchased shares of Polo Hotel Ltd., for the plaintiff. Plaintiff has
also filed copy of cheque dated 20.12.2014 of Rs.15 Lakhs. It
further reveals that upon presenting both the cheques for the
encashment they were dishonoured for the reasons “Fund
Insufficient”. The plaintiff has also filed copy of notice dated
17.02.2015 issued through his advocate to the defendant, wherein
demanding the amount of cheques. Upon perusal of same, it
revealed that as the plaintiff has invested some amount for
purchasing shares of defendant company, the defendant has issued
cheques dated 24.10.2014 and 20.12.2014 respectively. Thus,
plaintiff proved that the defendant had issued cheque dated
24.10.2014 of Rs.11 Lakhs and cheque dated 20.12.2014 of Rs.15
Lakhs toward discharged of his liability. Hence, my answer to point
no.1 is in affirmative.
As to Point No.3.
13. Prior to dealing with point No.2, I want to record my
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Com. Suit No.498/2021 7 Judgement
findings on point No.3, to see whether the suit is within limitation.
It is to be noted that this court has already observed that
the defendant had issued cheque dated 24.10.2014 of Rs.11 Lakhs
and cheque dated 20.12.2014 of Rs.15 Lakhs toward discharged of
his liability. The plaintiff has presented both the cheques for the
first time on 19.01.2015. Both the cheques were dishonoured with
remarks that “Fund Insufficient” on 20.01.2015. The plaintiff has
received memo of the same on 26.01.2015. Thereafter, the plaintiff
has presented the cheque dated 20.12.2015 of Rs.15 Lakhs again
on 05.02.2015. It was dishonoured on 06.02.2015 for the reasons
“funds insufficient”. The plaintiff had received its memo on
13.02.2015. Thereafter, the plaintiff had issued notice through his
advocate on 18.02.2015, which was received by the defendant on
19.02.2015. The plaintiff had lodged the suit on 25.01.2018. Thus,
it is well within limitation of three years. Hence, my answer to
point no.3 is in affirmative.
As to Point No.2.
14. The plaintiff claiming that there is due amount of
Rs.40,80,000/ against the defendant. However, upon perusal of
evidence, the plaintiff failed to prove that he had paid amount of
Rs.40,80,000/ to the defendant. But, as discussed supra, the
plaintiff proved that the defendant had issued cheque of Rs.11
Lakhs and 15 Lakhs respectively, which were dishonoured for the
reasons “Fund Insufficient” in the account of the defendant. Hence,
the plaintiff is entitled for the amount of both cheques i.e.,
Rs.26,00,000/ only. So far as, rate of interest is concerned,
looking to the nature of transactions, I am of the view that if the
defendant is directed to pay the due amount since the date of
issuance of cheques till its full realization @ 9 % per annum, then
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Com. Suit No.498/2021 8 Judgement
it will subserve the justice. Hence, my answer to point no.2 is
partly affirmative.
ORDER
1. Commercial Suit No.498 of 2021 is partly decreed with Costs.
2. The defendant shall pay the amount of Rs.26 Lakhs with interest @
9% per annum from the date of issuance of cheques till its full
realization.
3. Decree be drawn up accordingly.
4. Commercial Suit No.498 of 2021 disposed of accordingly.
Sd/
(Virendra D. Kedar)
Judge, City Civil & Sessions
Date:.08.01.2024 Court, Gr. Mumbai
(C.R. No.14)
Dictated on : 08.01.2024
Transcribed on : 08.01.2024
Signed on : 08.01.2024
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Com. Suit No.498/2021 9 Judgement
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 08.01.2024 NAME OF STENOGRAPHER
TIME: 04.30 p.m. Mr. Ashok Sudhakar Patil
Name of the Judge (With Court
room no.)
HHJ Shri Virendra D.Kedar
(Court Room No.14)
Date of Pronouncement of
JUDGEMENT/ORDER
08.01.2024
JUDGMENT/ORDER signed by
P.O. on
08.01.2024
JUDGEMENT/ORDER uploaded on 08.01.2024
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