Final Order 1

Order Details: Other
Pdf Text: ..1.. Summons for Judgment
No.47/2019
MHCC010014882019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
SUMMONS FOR JUDGMENT NO.47 OF 2019
IN
SUMMARY CIVIL SUIT NO.1344 OF 2018
(CNR NO.MHCC01-013992-2018)
Ramesh Vardhan (HUF) )..Plaintiff
VERSUS
Mr. Sanjay Seth )..Defendant
Appearance :
Learned Adv. Preeti Gada a/w Adv. Disha Vardhan for plaintiff.
Learned Adv. Santosh Kyadigoppi for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15.
DATE : 01/07/2023
O R D E R
1 This summons for judgment is taken out for grant of
decree for recovery of amount of Rs.97,42,522/- (Rupees Ninety-Seven
Lakhs Forty-Two Thousand Five Hundred and Twenty-Two only), as set
out in the plaint with further interest at the rate of 15% per annum
from the defendant. Plaintiff has come with the case that he is
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carrying business under the name and style of “Multi Marketing”. The
defendant is also a businessman carrying business under the name and
style “Seth Metals”. The defendant approached to the plaintiff for
financial help and requested to provide friendly loan. In pursuance to
the request, plaintiff has provided friendly loan on different dates from
05/11/2015 to 12/04/2016. In the meantime, the defendant has
repaid some amount and as on 12/04/2016, the amount of
Rs.68,50,000/- (Rupees Sixty-Eight Lakhs Fifty Thousand only) is due
towards loan advanced to the defendant as friendly loan who agreed to
repay at the rate of interest of 15% per annum, but the defendant has
failed to repay the loan from April-2016 as assured and promised by
him. The defendant issued the cheque of Rs.15,00,000/- (Rupees
Fifteen Lakhs only) on 03/10/2018 and another cheque of
Rs.81,19,483/- (Rupees Eighty-One Lakhs Nineteen Thousand Four
Hundred and Eighty-Three only) on the same date, towards the
repayment of loan with interest till 30/09/2018. These cheques were
dishonoured by the bank on its presentation for encashment and it is
intimated through bank memo as remark “Account closed” and
“Payment stop by Drawer”. It is contended that the defendant being
sole proprietor “Seth Metal” is liable to discharge his liability and repay
the loan amount with interest, but he failed to repay, therefore, he filed
the instant suit for recovery of amount as stated in the prayer clause.
2 In response to the writ of summons, the defendant
appeared and thereafter, the plaintiff took out instant summons for
judgment. The defendant replied the summons for judgment, resisting
the contention of plaintiff. It is his contention that the plaintiff is a
money lender. He is doing money lending business without license. He
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did not dispute that he received the loan of Rs.68,50,000/- (Rupees
Sixty-Eight Lakhs Fifty Thousand only) from the plaintiff, but
contended that blank cheques were given to the plaintiff who assured
that he will not present these cheques for encashment. However, with
malafide intention, he filed bogus cheques in the bank and prayed for
grant of unconditional leave to defend.
3 Heard rival parties at length.
4 It appears from the record that the defendant is making
allegations that the plaintiff is carrying business of money lending
without license. However, there is no document annexed with the
reply so as to ascertain any substance in his allegations. The learned
advocate for plaintiff has relied on 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 reported in MANU/MH/2462/2018. In
the cited case, the Hon’ble Bombay High Court has clearly opined that
the allegations of carrying money lending business without license
must be supported by cogent evidence and in Para No.36 of the
Judgment, it is held that :
36. From this discussion, the following propositions
emerge:
(a) Not every loan is axiomatically a money-
lending transaction for the purposes of the 1946
or the 2014 Acts. There is no such presumption in
law.
(b) It is doing of the 'business of money-lending'
that attracts the provisions of the statute. In
interpreting the phrase, the correct emphasis is on
the word 'business', not 'money-lending'. It is the
word 'business', and not the expression 'money-
lending', that is determinative. Simply put, every
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instance of lending money is not money-lending.
Not every lender is a Shylock.
(c) To constitute 'business', a single isolated
instance does not, and even several isolated stray
instances do not, constitute 'the business of
money-lending'. To be engaged in the 'business of
money-lending', the activity must be systematic,
regular, repetitive, and continuous, and must
generate an appreciable revenue. The fact that the
borrower is a stranger to the lender does not on its
own make the latter a 'money-lender'.
(d) A loan recovery action is not barred merely
because there is a loan. It has to be shown that the
loan was part of 'the business of money-lending'.
(e) A plaintiff seeking a recovery of a loan is not
required to show that his suit is not barred by the
Money Lenders Act. It is always for the defendant
who puts up money-lending as a defence to show
that the transaction is forbidden by the Money
Lenders Act.
5 Considering the above observation, I am of the view that
the defendant is not having cogent proof to establish the allegations
that the plaintiff is carrying money lending business without license.
6 It is vehemently argued by the learned advocate for the
defendant that until and unless, he is given an opportunity to prove
how, he can be able to prove that the plaintiff is carrying his money
lending business without license. On perusal of reply, it is clearly
admitted by the defendant that he has received the loan of
Rs.68,50,000/- (Rupees Sixty-Eight Lakhs Fifty Thousand only) and he
has not paid the interest from the month of April-2016. Thus, the
payment of amount of Rs.68,50,000/- (Rupees Sixty-Eight Lakhs Fifty
Thousand only) is established on record. Therefore, the defendant is
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required to deposit the said amount, if he wants to establish his
contention and to raise the defence against the plaintiff. Thus, I am of
the view that as a fair opportunity, the defendant is entitled for leave to
defend, subject to deposit of amount of Rs.68,50,000/- (Rupees Sixty-
Eight Lakhs Fifty Thousand only). Consequently, I proceed to pass the
following order :-
ORDER
1. Summons for Judgment No.47/2019 in Summary
Civil Suit No.1344/2018, is disposed of in terms of
following order :-
2. Defendant is granted leave to defend, subject to
depositing of amount of Rs.68,50,000/- (Rupees
Sixty-Eight Lakhs Fifty Thousand only), within one
month from the date of this order, in the Court.
3. After depositing the amount, the PLA Section is
directed to invest the same into Fixed Deposit, till
disposal of the suit.
4. Defendant shall file written statement within 30 days.
5. Summons for judgment is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Gr. Bombay.
Date: 01/07/2023. C.R. No.15
Dictated on : 01/07/2023
Transcribed on : 01/07/2023
Signed by HHJ on : 03/07/2023
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“Certified to be true and correct copy of the original signed order”.
03/07/2023 (Ms.Sonali S. Sawant)
at about 5.25 p.m. Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court and
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 01/07/2023
Order signed by Hon'ble Judge on : 03/07/2023
Order uploaded on : 03/07/2023
at about 05.25 p.m.
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