Order 2

Order Details: Notice of Motion
Pdf Text: Draft N/m in Summons for Judgment No. 235/19 1 Order.
in Summary Suit No. 383/19.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
DRAFT NOTICE OF MOTION
IN
SUMMONS FOR JUDGMENT NO. 235 OF 2019
IN
SUMMARY SUIT NO. 383 OF 2019
Ashish Rajnikant Vibhakar )...Plaintiff
Versus
Kamlesh Hakumatrai Thakur )...Defendant
Shri Gauraj Shah alongwith Panthi Desai i/b M.P.Vashi, Advocate for the
plaintiff.
Shri Ranjan Mishra h/f Shri Rajesh Singh, Advocate for the defendant.
CORAM : HIS HONOUR JUDGE SHRI U.C.DESHMUKH.
(COURT ROOM NO.66).
DATE : 24th OCTOBER, 2024.
ORDER
This draft notice of motion is filed by the defendant to stay
the further proceeding of this suit in view of pendency of C.C.No.
6903/SS/2016 and C.C.No. 6904/SS/2016 filed under Section 138 of
Negotiable Instruments Act [In short, ‘the N.I.Act’] before learned
Metropolitan Magistrate, 63rd Court at Andheri.
2. The defendant has come with case that the suit and
criminal complaints are based upon one and the same transaction vide
negotiable instrument. Therefore it is necessary to stay the proceeding
of this suit. Considering his submission the Court felt it necessary to
hear the defendant whether this application is maintainable before
leave is granted to register it. Consequently learned advocate for the
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in Summary Suit No. 383/19.
defendant and also plaintiff heard at length.
3. It is specific contention of the defendant that he is a
business consultant and the plaintiff has expressed his desire to assist
him in promoting his concept of Evolved Living on a parcel of land at
Pune city. There was discussion in between the plaintiff and defendant
regarding payment of professional fees of the defendant. Accordingly
the plaintiff on 26/06/2015 transferred an amount of Rs.96,86,845.18
to the account of the defendant. There was also another transaction in
between the plaintiff and the defendant. After the project of Ivory Coast
was aborted, defendant at the request of plaintiff has refunded amount
of Rs.24,00,000/- during February, 2016 to June, 2016. In end of April,
2016 the plaintiff approached the defendant to reconcile the accounts.
It was found that Rs.40,00,000/- was payable by the defendant to the
plaintiff and amount of Rs.44,10,722.52 was refundable by the plaintiff
to M/s. Turako Trading FZC. The plaintiff told the defendant if he
receives the amount of Rs.40,00,000/- from the defendant he would be
in position to repay amount to Turako Trading FZC. Therefore on his
request defendant had issued post-dated cheques which are subject
matter of the suit and subject matter of the complaints.
4. It is further contention of the defendant that the
proceeding before the criminal court vide aforesaid criminal complaint
has been completed and it has reached to the stage of recording
statement under Section 313 of the Code of Criminal Procedure. In such
circumstances, without going into the merit of the plaintiff’s claim vide
this suit, it would be just and proper to stay the proceeding of this Court
till the criminal court decides aforesaid complaints. Hence this notice of
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Draft N/m in Summons for Judgment No. 235/19 3 Order.
in Summary Suit No. 383/19.
motion.
5. In reply, it is contention of the plaintiff that it was friendly
loan and the pleading of the defendant that the transaction in question
is commercial transaction is negated by this Court vide order in Notice
of Motion No. 3275/2021. There is sufficient material on record to
allow the summons for judgment taken out by the plaintiff. Hence
prayed to reject the notice of motion.
6. Apart from controversial factual aspect, it is necessary to
note that it has to see whether the proceeding pending vide this suit can
be stayed because the criminal complaints are pending involving similar
subject of dispute. The defendant has relied upon decision of
Honourable Supreme Court in Prem Raj V/s. Poonamma Menon & Anr.
[Criminal Appeal (Arising out of Special Leave Petition (Crl.) No.
9778/2018)]. He also placed reliance upon decision of Honourable
Supreme Court in M. S. Sheriff and another V/s. State of Madras, and
others (A.I.R. 1954 Supreme Court 397) and decision in R. K. Roja V/s.
U. S. Rayudu and Anr. (AIR 2016 Supreme Court 3282). Relying upon
these decisions of the Honourable Supreme Court, it is specific
submission of learned advocate for the defendant that the decision of
the criminal court will hit the decision of this Court in this suit.
Therefore to avoid the controvery it is essential to stay the proceeding
of this Court till the criminal court decides aforesaid criminal
complaints.
7. In R. K. Roja (supra) the Honourable Apex Court has
observed that when application under Order 7 Rule 11 of the Code of
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in Summary Suit No. 383/19.
Civil Procedure [In short, ‘the CPC’] is filed, the Court cannot proceed
with trial without disposing of the application. It is not the case of the
defendant that the present notice of motion is filed under Order 7 Rule
11 of the CPC. Therefore rule laid down in R. K. Roja (supra) is not
helpful to the defendant. In M. S. Sheriff and another (supra) the
Honourable Apex Court has observed that as between the civil and
criminal proceeding the criminal matter should be given precedence.
There cannot be any hard and fast rule to be laid down. It is also
observed that there is no possibility of conflicting decision in the
criminal and civil decision. The law envisages such an eventuality when
it expressly refrains from making the decision of one Court binding on
the other or even relevant except for certain limited purposes. Similar
observations are made by the Honourable Apex Court in Prem Raj
(supra). It is observed by the Honourable Apex Court that no straight-
jacket formula could be laid down and conflicting decisions of civil and
criminal Courts would not be a relevant consideration except for the
limited purpose of sentence or damages.
8. The Honourable Apex Court has referred its own
observation in M/s. Karam Chand Ganga Prasad & Anr. V/s. Union of
India & Ors. [(1970) 3 SCC 694] wherein it is observed that it is a well-
established principle of law that the decisions of the civil courts are
binding on the criminal courts. The converse is not true. The cumulative
effect of the observations of the Honourable Apex Court in aforesaid
cases is that the finding of civil and criminal court will not influence or
affect the finding of either except for limited purpose of sentence or
damages. In such case the submission of the defendant that if the
criminal court pass order in favour of the plaintiff and thereby sentence
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or award damages against the defendant, it would amount to double
geopardy has no substance. This Court can take into consideration only
sentence and damages awarded by the criminal courts if such criminal
complaints are decided prior to this suit. On the contrary, if it is
presumed that the criminal complaints are ended against the plaintiff
and it is found by the criminal court that the defendant has not
committed an offence as alleged therein, even though the findings of
the criminal courts will not bind this court to give its own findings and
come to the conclusion. However, certainly findings of this court would
bind the criminal court. In this contingency if it is also presumed that
the present suit is decided in favour of the plaintiff and the defendant is
directed to pay money, then the criminal court has to take into
consideration such money while passing order of sentence or
compensation vide aforesaid complaints.
9. It is specific submission of learned advocate for the plaintiff
that the defendant has filed this draft notice of motion to prolong the
suit. On perusal of roznama of this suit, it is seen that the defendant has
sought number of adjournments for hearing. The defendant has filed an
affidavit of leave to defend on 07/10/2019. Since then the defendant
has not persuaded such affidavit. All these facts show that the
defendant has filed this draft notice of motion to prolong the suit. It is
also necessary to note that this Court has heard the plaintiff on
summons for judgment on 09/09/2024 in presence of the defendant.
On 09/09/2024 the defendant sought time for arguments and
thereafter he filed this draft notice of motion. Therefore there is
substance in submission of learned advoate for the plaintiff that this
draft notice of motion is filed by the defendant to prolong the suit.
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Draft N/m in Summons for Judgment No. 235/19 6 Order.
in Summary Suit No. 383/19.
Hence ensues the cost.
10. Before part with the order, it is necessary to note that it was
specific submission of learned advocate for the defendant that he is
heard on this draft as to limited issue to grant leave to register only.
However, learned advocate for the defendant has argued at length on
the issue raised vide this notice of motion as to why the proceeding of
this suit shall be stayed. Therefore, this draft notice of motion needs to
be disposed off finally. In the result, following order is passed :
- ORDER -
1. Draft Notice of Motion stands rejected with cost.
2. Defendants to pay cost of Rs.5,000/- to the plaintiff on or before
next date.
3. Draft notice of motion be registered for statistical purpose.
(U.C.DESHMUKH)
Judge,
City Civil Court,
(Court Room No.66)
Date : 24/10/2024. Mumbai.
1. Dictated on : 24/10/2024.
2. Transcribed on : 04/11/2024.
3. Placed for correction on : 04/11/2024.
4. Checked on : 04/11/2024.
5. Correction carried on : 05/11/2024.
6. Signed on : 05/11/2024.
7. Delivered to Certified :
Copy Section on
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Draft N/m in Summons for Judgment No. 235/19 7 Order.
in Summary Suit No. 383/19.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
05/11/2024. 3.09 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 24/10/2024.
Judgment/Order signed by P.O. on 05/11/2024.
Judgment/Order uploaded on 05/11/2024.
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