Final Order 3

Order Details: Other
Pdf Text: Summons for Judgment No. 235/19 in [ 1 ] Order.
Summary Suit No. 383/19.
MHCC010098822019
Presented on : 26-09-2019
Registered on : 26-09-2019
Decided on : 06-03-2025
Duration : 5 years, 5 months, 10 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
SUMMONS FOR JUDGMENT NO. 235 OF 2019
IN
SUMMARY SUIT NO. 383 OF 2019
Ashish Rajnikant Vibhakar, )
age 60 years, Occupation: Retired, )
adult, residing at 2002, Blue Ridge, )
Tower 8, Hinjewadi, Phase I, )
Pune 411057 )...Plaintiff
Versus
Kamlesh Hakumatrai Thakur, )
adult, Occupation: business, residing )
at Flat 7-B, Harbour Heights A, )
N. A. Sawant Road, Opp. Colaba )
Fire Brigade, Mumbai 400 005 )...Defendant
Panthi Desai i/b M.P.Vashi and Associates, Advocate for the plaintiff.
Shri Carl Patel, Advocate for the defendant.
CORAM : HIS HONOUR JUDGE SHRI U.C.DESHMUKH.
(COURT ROOM NO.66).
DATE : 6th MARCH, 2025.
-- 1 of 14 --
Summons for Judgment No. 235/19 in [ 2 ] Order.
Summary Suit No. 383/19.
ORDER
This is suit for recovery of an amount of Rs.63,20,000/-
with interest at the rate of 2% per month from 01/02/2019 till
realization thereof.
2. The plaintiff has come with case that the defendant is his
friend since school days. In April, 2015 the defendant and his wife met
the plaintiff at his farm house at Pune alongwith defendant’s client one
Mr. Jayant Bakshi and his son Mr. Arjun Bakshi. The defendant
informed the plaintiff that he was retained for a feeby he has to raise a
sum of United States Dollar [In short, ‘USD’] 25 million as a debt for
working capital for a project in Africa through Bakshis’s company called
“LETCI”. Therefore the defendant asked the plaintiff for a loan of USD 5
million to be used as seed money to raise the loan of USD 25 million.
Initially plaintiff refused, however thereafter in June, 2015 the
defendant again approached the plaintiff for friendly loan of
Rs.64,00,000/-. The defendant assured that he would repay said loan
amount with interest within three months. The defendant pursued the
plaintiff for loan persistently. The defendant represented the plaintiff
that he has found investor who agreed to provide loan of USD 25
million towards project known as LETCI subject to condition that
defendant shall show he possesses USD 2,00,000 as earnest money.
3. The plaintiff further pleads that relying upon assurance of
the defendant, the plaintiff transferred USD 1,00,000 to the bank
account of the defendant in Dubai i.e. USD 50,000. The said amount
was transferred through the nephew of the plaintiff. The plaintiff also
-- 2 of 14 --
Summons for Judgment No. 235/19 in [ 3 ] Order.
Summary Suit No. 383/19.
transferred Rs.64,00,000/- to the bank account of the defendant in
Mumbai on his request on 25/06/2015 through RTGS.
4. The plaintiff further specifically pleads that in month of
February, 2016 the defendant repaid USD 1,16,000. Thus, the defendant
was outstanding of Rs.64,00,000/-. Thereafter the defendant repaid
total amount of Rs.24,00,000/- on different dates i.e. 10/03/2016,
14/03/2016, 28/03/2016 and 20/05/2016. The defendant failed to
make any progress in his commitment to the Bakshis and thus Bakshis
deserted further action to raise the money through the defendant.
Therefore defendant decided to dishonestly retain outstanding loan of
Rs.40,00,000/- due and payable to the plaintiff. The plaintiff requested
the defendant to repay the said loan amount repeatedly but the
defendant failed.
5. The plaintiff further pleads that in August, 2016 the
plaintiff confronted the defendant in presence of two common friends
namely Mr. Panti Kumar and Mr. Jairam Jashnani. At that time,
defendant admitted his liability and promised to repay the balance of
loan. After many requests the defendant issued four post-dated cheques
for sum of Rs.10,00,000/- each which bears date 01/06/2016,
01/07/2016, 01/08/2016 and 01/09/2016. The plaintiff deposited first
cheque dated 01/06/2016 on 29/08/2016 in the plaintiff’s account
with State Bank of India. The said cheque was returned unpaid with
remark ‘Payment stopped by the drawer’. Similarly when the plaintiff
deposited other three cheques were also returned with remark ‘Funds
Insufficient’. Therefore the plaintiff addressed demand notice on
04/10/2016 and 28/10/2016. The defendant failed to honour his
-- 3 of 14 --
Summons for Judgment No. 235/19 in [ 4 ] Order.
Summary Suit No. 383/19.
liability. Hence the plaintiff has filed complaints under Section 142(1)
of Negotiable Instruments Act, 1881 [In short, ‘Act’] and the complaints
are pending before learned Metropolitan Magistrate, 63rd Court at
Andheri. Considering interest amount the defendant is bound to pay
total amount of Rs.63,20,000/- and also liable to pay interest at the rate
of 2% per month from 01/02/2019. Hence this suit.
6. The plaintiff thereafter filed Summons for Judgment on
19/09/2019 and same is served upon the defendant on 27/09/2019.
The defendant appears and filed an application-cum-affidavit to leave to
defend on 07/10/2019.
7. The plaintiff has reiterated his case vide summons for
judgment.
8. The defendant vide his application opposed the summons
for judgment and seeks leave to defend the suit on the ground that the
plaintiff has suppressed material facts and the transaction in between
the plaintiff and defendant as alleged falls within the purview of
commercial transaction. Hence this Court has no jurisdiction to
entertain the suit. The defendant specifically states that there is no
acknowledgement of liaility at the instance of the defendant. Hence
summary suit is not maintainable. He specifically submits that he has
business of consultancy. The plaintiff expressed his desire to assist him
in his promotion of concept of Evolved Living on a parcel of land that he
proposed to develop at outskirt of Pune city. Therefore the plaintiff
invited the defendant to the site in the year 2013 and gave
demonstration of design of Holistic House that he could be constructed.
-- 4 of 14 --
Summons for Judgment No. 235/19 in [ 5 ] Order.
Summary Suit No. 383/19.
The defendant shared his thought with the plaintiff. The plaintiff after
realising that the defendant has knowledge of the concept that was
proposed, he requested the defendant to explore the possibility of using
similar technology in different markets and expressed his wish to
engage the defendant and pay his professional fees.
9. The defendant further states that he was having settled in
United Arab Emirates, he had incorporated an establishment registered
in Free Trade Zone of Ras Al Khaimah, an Emirate in United Arab
Emirates. It is known as ‘M/s. Turako Trading FZC, (TT-FZC)’. The
defendant in year 2015 was approached by M/s. Links International,
FZC domiciled in Emirate of Sharjah, UAE who was in process of
developing a mass housing project in Ivory Coast, Africa. The defendant
thought it appropriate to propose the plaintiff and offer plaintiff’s
participation in said development process. The plaintiff also requested
the defendant to introduce him to M/s. Links International, FZC. The
plaintiff was keen to pursue the project at Ivory Coast. The plaintiff
initially offered to transfer one acre of land at Pirangut, Pune to the
defendant. However, the defendant was not interested in having said
land. Hence it was agreed that the plaintiff would pay professional fees
to the defendant quantified at USD 2,50,000, out of which 20% was
non-refundable advance payable on introduction with Links Eco
Township and 80% on inking of contract. Accordingly in month of April,
2015 the defendant introduced Mr. Arjun Bakshi, Managing Director of
M/s. Links International FZC to the plaintiff. Since the process of
documentation of contract between plaintiff and M/s. Links Eco
Township would take some time, the plaintiff considered it feasible that
earnest money be kept with bank account of defendant to show
-- 5 of 14 --
Summons for Judgment No. 235/19 in [ 6 ] Order.
Summary Suit No. 383/19.
availability of funds. Accordingly the plaintiff on 26/06/2015
transferred Rs.64,00,000/- to the account of the defendant and on the
same day Rs.32,86,845.18 was transferred to the account of M/s.
Turako Trading FZC through account of plaintiff’s wife. Thereafer in last
week of June, 2015 the defendant requested the plaintiff to make
payment of 20% against his professional fees as agreed. Accordingly the
plaintiff through bank account of his relative Shri Nitin Kapadia
remitted amount of AED 1,82,650 to the account of M/s. Turako
Trading FZC on 30/06/2015.
10. The defendant further states that though aforesaid amount
was transferred to show availability of funds to M/s. Links Eco
Township, the plaintiff from time to time during August, 2015 to
October, 2015 requested the defendant to transfer funds on account of
unforeseen financial contingencies into his account. Thus, an amount of
total of Rs.43,79,986/- was transferred to the plaintiff’s account from
account of M/s. Turako Trading FZC. Thereafter in the month of
December, 2015 due to difference of opinion between the plaintiff and
M/s. Links Eco Township, the project came to be aborted. Thereafter the
defendant on request of the plaintiff refunded an amount of
Rs.24,00,000/- during month of February, 2016 to June, 2016.
11. The defendant further submits that in April, 2016 the
plaintiff approached to the defendant to reconcile the accounts when it
was found that INR 50,00,000/- was payable by the defendant to the
plaintiff and AED 245,040.14 was refundable by the plaintiff to M/s.
Turako Trading FZC. During discussion between the plaintiff and the
defendant, the plaintiff suggested that he would be in position to repay
-- 6 of 14 --
Summons for Judgment No. 235/19 in [ 7 ] Order.
Summary Suit No. 383/19.
AED 2,45,040.14 to Turako Trading FZC only after receiving INR
50,00,000/- from defendant in his account. To facilitate said
arrangement the plaintiff requested the defendant to issue four post-
dated cheques which are the subject matter of the suit. The defendant
issued said four post-dated cheques in bonafide belief that the plaintiff
on realization of each cheque would proportionately refund the money
to Turako Trading FZC. Thus, the plaintiff is liable to repay AED
2,45,040.14 equivalent INR 44,10,722.52 to Turako Trading FZC. Even
if one adjusts the amount of AED 2,45,040.14 against amount of INR
40,00,000/-, the plaintiff still is liable to pay INR 4,10,722.52 to the
defendant. Therefore the plaintiff’s case vide this suit, summons for
judgment and complaints before Metropolitan Magistrate is not
maintainable. Thus, defendant denies issuance of four post-dated
cheques against the legal debt. Hence prayed to reject the summons for
judgment and permit him to defend the suit.
12. It is submission of learned advocate for the plaintiff that
the defendant does not dispute issuance of four cheques. The
application of the defendant under Order 7 Rule 11 of the Code of Civil
Procedure is rejected. The defendant’s plea of commercial transaction is
also refused by the Court. There is no dispute that the plaintiff had
transferred an amount of Rs.64,00,000/- through RTGS to the
defendant. Therefore the suit is liable to be decreed allowing summons
for judgment.
13. In reply, the learned advocate for the defendant submits
that the criminal complaints before the learned Magistrate are about to
end. If the summons for judgment is allowed, it would amount to
-- 7 of 14 --
Summons for Judgment No. 235/19 in [ 8 ] Order.
Summary Suit No. 383/19.
double jeopardy. It is specific submission of learned advocate for
defendant that if complaints before learned Metropolitan Magistrate are
allowed, the defendant would have to deposit 20% of total amount of
compensation that awarded by the learned Magistrate and if he prefers
appeal against order passed therein, he has to again deposit 20% of
compensation amount. Therefore it is just to stay the proceeding of this
suit till criminal complaints pending before learned Metropolitan
Magistrate are decided. He placed reliance upon decision of Honourable
Apex Court in IDBI Trusteeship Services Limited V/s. Hubtown Limited
[(2017) 1 Supreme Court Cases 568] wherein the Honourable Apex
Court has set out the guidelines to be followed while passing order on
summons for judgment and granting the leave to the defendant to
defend in summary suit.
14. On the contrary, learned advocate for the plaintiff has also
relied upon decision of Honourable High Court in Rajesh Laxmichand
Udeshi @ Bhatia V/s. Pravin Hiralal Shah [2012 SCC OnLine Bom
2181] wherein the Honourable High Court has observed that the Court
must scrutinize the defence strictly. This is not to state that moment a
Summary Suit is lodged based on a dishonoured cheque, it must be
decreed. The object of the summary procedure is ultimatley to see that
the defendant does not needlessly, prolong the litigation by creating
untenable, frivolous and casual defences so as to deprive the plaintiff of
the monies due to him. Thus, in the light of observation of Honourable
Apex Court and Honourable High Court in aforesaid cases, it has to see
whether it is essential to grant leave to the defendant to defend the suit.
15. At the very outset, it is apt to note that the defendant does
-- 8 of 14 --
Summons for Judgment No. 235/19 in [ 9 ] Order.
Summary Suit No. 383/19.
not dispute issuance of four post-dated cheques in favour of the plaintiff
on which basis the present suit is instituted. The defendant also does
not dispute the relationship between himself and the plaintiff. He also
admits that he has paid USD 1,16,000 to the plaintiff. It is also admitted
fact that the plaintiff has filed two criminal complaints against the
defendant on account of dishonour of cheques in question and same
complaints are pending before learned Metropolitan Magistrate as
aforesaid.
16. The sum and substance of contention of the defendant is
that the plaintiff was keen to pursue the project at Ivory Coast and
entered into contract with M/s. Links International FZC. Therefore on
26/06/2015 the plaintiff transferred an amount of Rs.64,00,000/- to
the defendant’s account and he also transferred an amount of
Rs.32,86,845.18 through the account of his wife to the account of M/s.
Turako Trading FZC. However, thereafter there was no contract in
between the plaintiff and M/s. Link International FZC. Thus, thereafter
on request of the plaintiff, the defendant refunded amount of
Rs.24,00,000/-. On reconciliation of account it was found that amount
of Rs.50,00,000/- was payable by the defendant to the plaintiff and
Rs.44,10,722.52 was refundable by the plaintiff to M/s. Turako Trading
FZC owned by the defendant. Thus, if claim of Rs.40,00,000/- of the
plaintiff is taken into consideration, still the plaintiff is liable to pay
Rs.4,10,722.52 to the defendant.
17. The defendant has also come with case that an excess sums
were drawn by the plaintiff from the defendant’s UAE account to meet
his household expenses like payment of fees towards childrens
-- 9 of 14 --
Summons for Judgment No. 235/19 in [ 10 ] Order.
Summary Suit No. 383/19.
education etc. There was exchange of various e-mail communications
between the plaintiff and the defendant whereby the plaintiff has
repeatedly requested the defendant to pay aforesaid amount to him as
emergency expenses of family members who are residing in the United
States of America. He also submits that since amount of Rs.24,00,000/-
was excess amount than his professional fees and since project of the
plaintiff could not be materialized, he repaid said amount to the
plaintiff. Thus, the defendant admits the repayment of Rs.24,00,000/-
to the plaintiff which the plaintiff states that it is an amount refunded
by the defendant against the hand-loan of Rs.64,00,000/-.
18. The defendant also states that if claim of the plaintiff over
Rs.40,00,000/- is taken into consideration, still the plaintiff is liable to
pay Rs.4,10,722.52. It impliedly admits his liability to pay
Rs.40,00,000/- to the plaintiff. The plaintiff states that the defendant
has issued four post-dated cheques against amount of Rs.40,00,000/-.
The defendant has not come with case that those cheques are misused
by the plaintiff. It is his specific case that in month of April, 2016 the
plaintiff approached to him and while reconciling the account, the
plaintiff was found liable to pay Rs.44,10,722.52 to M/s. Turako
Trading FZC owned by the defendant and to pay said amount the
plaintiff requested to issue four post-dated cheques. It is significant to
note that M/s. Turako Trading FZC is owned by the defendant as he
claims and the defendant submits that the plaintiff was liable to pay
Rs.44,10,722.52 to M/s. Turako Trading FZC and to discharge the
liability of the plaintiff the defendant agreed on request of the plaintiff
to issue four post-dated cheques on bonafide belief that the plaintiff on
realization of cheque would proportionately refund amount to Turako
-- 10 of 14 --
Summons for Judgment No. 235/19 in [ 11 ] Order.
Summary Suit No. 383/19.
Trading FZC. If for the sake of discussion such case of the defendant is
taken into consideration, it was for the defendant to maintain amount
in his account to honour said cheques. Admittedly, all four cheques are
dishonoured. Therefore the case of the defendant that he had issued
post-dated cheques in a bonafide belief that the plaintiff on realization
of each cheque would proportionately refund money to his company
M/s. Turako Trading FZC is not conceivable.
19. Defendant also states that in middle May of 2016 on
request of plaintiff he immediately transferred Rs.10,00,000/- which
was payable under first cheque No. 102917 dated 01/06/2016.
Therefore he gave instruction to bank to stop the payment against said
cheque. To substantiate his contention the defendant has not filed any
documentary evidence on record which could be produced. Besides said
contention, it is apt to note that if case of the defendant as to issuance
of four cheques to the plaintiff to refund amount to Turako Trading FZC
has to take into consideration, it was for the defendant to keep the
required amount to honour said cheques in his bank account. The
defendant fails to do so. The defendant also states that till today the
plaintiff is liable to pay Rs.4,10,722.52 to him. The defendant has not
come with case that since institution of this suit or filing of criminal
complaints at the instance of the plaintiff on account of dishonour of
cheques, he has made claim to recover said amount before competent
authority or Court. The defendant also does not deny the contents of
affidavits of witnesses referred by the plaintiff in whose presence the
defendant has admitted his liability towards the plaintiff.
20. The defendant has also come with case that in last week of
-- 11 of 14 --
Summons for Judgment No. 235/19 in [ 12 ] Order.
Summary Suit No. 383/19.
2015 he requested the plaintiff to make payment of 20% against his
professional fees as agreed and accordingly the plaintiff through bank
account of his relative Shri Nitin Kapadia remitted an amount of AED
1,82,650 to the account of M/s. Turako Trading FZC on 30/06/2015
and also states that he has paid an amount of Rs.24,00,000/- to the
plaintiff as it was excess amount than his professional fees since the
project of the plaintiff could not be materialized. His admission of
payment of Rs.24,00,000/- and issuance of four post-dated cheques
against amount of Rs.40,00,000/- fortifies the case of the plaintiff that
the defendant has issued four post-dated cheques for an amount of
Rs.40,00,000/- against friendly loan of Rs.64,00,000/- after deducting
amount of Rs.24,00,000/- that the defendant has repaid. In absence of
prima facie documents on record to substantiate the case of the
defendant that he has paid amount of Rs.24,00,000/- to the plaintiff
and it was an excess amount paid by the plaintiff against his
professional fees; and he paid from time to time on request made by the
plaintiff through various e-mails and he issued post-dated cheques that
to remit the amount to his own company is ridiculous and not
believable. Thus, the defendant has no case to defend. Therefore the
plaintiff is entitled to get the judgment accordingly.
21. The plaintiff claims an interest at the rate of 2% per month.
It is also alternative submission of learned advocate for the plaintiff that
plaintiff be awarded 18% interest as per provisions under Section 80 of
the Act. In such case, it would be just and proper to award interest at
the rate of 18% per annum on amount of Rs.40,00,000/- from the date
of the suit to the date of its realization. So far as civil liability of the
defendant is concerned, the Metropolitan Magistrate may consider an
-- 12 of 14 --
Summons for Judgment No. 235/19 in [ 13 ] Order.
Summary Suit No. 383/19.
amount hereinafter awarded and paid by defendant to the plaintiff
while passing order in criminal complaints if they are allowed in favour
of the plaintiff. Non-payment of amount against the cheques led the
plaintiff to institute the suit. Hence the plaintiff is entitled for the cost of
the suit. In the result, following order is passed :
- ORDER -
1. The defendant to pay Rs.40,00,000/- with interest at the rate of
18% per annum from the date of the suit till the date of its realization
within two months of the order.
2. The defendant to pay cost of the suit.
3. Decree be prepared accordingly.
4. Accordingly Summons for Judgment No. 235/2019 and Suit No.
383/2019 are disposed off.
(U.C.DESHMUKH)
Judge,
City Civil Court,
(Court Room No.66)
Date : 06/03/2025. Mumbai.
1. Dictated on : 06/03/2025.
2. Transcribed on : 17/03/2025.
3. Placed for correction on : 18/03/2025.
4. Checked on : 19/03/2025.
5. Correction carried on : 19/03/2025.
6. Signed on : 19/03/2025.
7. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
-- 13 of 14 --
Summons for Judgment No. 235/19 in [ 14 ] Order.
Summary Suit No. 383/19.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
19/03/2025. 5.42 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri U.C.Deshmukh.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 06/03/2025.
Judgment/Order signed by P.O. on 19/03/2025.
Judgment/Order uploaded on 19/03/2025.
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