Final Order 1

Order Details: Copy of Judgment
Pdf Text: :1: Summons for Judgt. 52/2019
Presented on : 16022019
Registered on : 16022019
Decided on : 18122021
Duration : 2 years, 10 months, 1 day
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.52 OF 2019
(MHCC010017412019)
Atulya Aravindan
Age: 27 years.
Of Mumbai, An adult,
Indian Inhabitant, having
address at D905, Pearle Drop,
Great Eastern Gardens, Kanurmarg,
Mumbai 400078. ...Plaintiff
VERSUS
1. Regal Shipping and Marine Services Private Limited
A Company Registered under the Companies Act, 1956,
having its address at 711, Vindya Commercial Premises,
Sector No.11, Plot No.1, CBD Belapur,
Navi Mumbai – 400 614.
2. VIVEK KUMAR BHAGAT
-- 1 of 9 --
:2: Summons for Judgt. 52/2019
Age not known. An adult Indian Inhabitant.
Having his address at Regal Shipping and Marine
Services Private Limited, its address at 711, Vindya
Commercial Premises, Sector No.11, Plot No.1,
CBD Belapur, Navi Mumbai – 400 614.
3. VARGHESE ANTHONY
Age not known an adult Indian Inhabitant
Having his address at Varghese Anthony
and Associates, D46162, Green Field
Rocks End CHS Limited, J.V. Link Road,
Andheri(East), Mumbai – 400 093. ...Defendants.
CORAM : HER HONOUR ADHOC JUDGE SMT. C.V. PATIL
(Court Room No.15)
DATED : 18th day of December 2021.
Advocate Shri. Ramesh Jain, for plaintiff.
Advocate Shri. R.R. Mishra for defendants No.1 and 2.
J U D G M E N T
(Delivered on 18th day of December 2021)
1. The plaintiff has filed summons for judgment against defendants.
It is the case of plaintiff that the plaintiff and defendants are the
resident of Mumbai. The defendant No.1 is Company duly registered
under the Indian Companies Act, 1956. The plaintiff is acquainted with
defendants. On 15/11/2013, defendants approached to plaintiff and
requested for financial assistance for business loan. The plaintiff was
-- 2 of 9 --
:3: Summons for Judgt. 52/2019
acquainted with defendants. Therefore, he accepted their request and
extended financial assistance of Rs.4 lakhs. The defendants have duly
encashed the said cheque and the same is reflects from the bank record.
For the security of that amount, defendants have executed bill of
exchange. The said bill of exchange was payable after 360 days. The
defendants were agreed to pay interest at the rate of 11% per annum
on the said amount. Defendant 3 is Tax Practitioner in the name of
title cited in the plaint The defendant No.3 has introduced defendant
No.1 and 2 to plaintiff and therefore, defendant No.3 stood as
Guarantor for the said loan. Accordingly, he has given in writing on
15/11/2013 and confirmed about financial assistance extended by
plaintiff. Therefore, the defendants were paying interest for a couple of
quarter on the amount of Rs.4 lakhs. On 15/11/2014, plaintiff
presented bill of exchange for encashment but the same is dishonoured
by 'Non payment'. Immediately, plaintiff has brought this fact to the
notice of the defendants, but they were neglected. The defendant No.3
thereupon requested for extension of time because of financial crisis. At
that time, he requested the plaintiff to return the original bill of
exchange and cheque dated 15/11/2014. In reply, the defendant No.3
has issued two cheques bearing No.005173 and 005174 of Rs. 2 lakhs
each on 20/07/2015.
2. In July 2015, the defendants approached the plaintiff and made
request that the plaintiff should not deposit two cheques of Rs.2 lakhs
because the defendants are going to close the bank account and will
issue the cheques of new account. The plaintiff believed the words of
defendants and therefore, he has not deposited those two cheques for
encashment. Accordingly, time to deposit was expired. Again, time to
-- 3 of 9 --
:4: Summons for Judgt. 52/2019
time, the plaintiff has demanded his amount. The defendants were
avoiding to repay the same and again and again, they were pleaded
financial difficulties and requested the plaintiff to wait for sometime.
3. Actually, the bill of exchange is negotiable instrument, therefore
pursuant to the amendment under the provisions of Negotiable
Instrument Act, the plaintiff is entitled for interest at the rate of 18 %
per annum on due amount. On 11/07/2018, the plaintiff has issued
notice to defendants and requested that to repay his 4 lakhs @ interest
at the rate of 18% per annum. The notice is duly served but the
defendants failed to pay the amount. Therefore, the plaintiff has filed
this suit within limitation. In the said suit, the plaintiff has filed
summons for judgment and requested to direct the defendants to
deposit the amount.
4. In reply to the writ of summons, the defendant Nos.1 and 2
appears on record through advocate. Defendants no.1 and 2 have filed
an application leave to defend the suit unconditionally. Roznama dated
18/01/2020 shows that defendant No.3 served summons but failed to
appear on record. Accordingly, it is ordered to proceed the suit exparte
against him.
5. It is the case of the defendants that suit is not in the nature of
summary suit. However, the plaintiff has made out false and frivolous
statement in plaint as well as summons for judgment. The pleading of
the plaintiff is not supported by documentary proof. There is no written
contract between the parties. Further, the bill of exchange which is
produced by the plaintiff on record is time barred. With this ground,
-- 4 of 9 --
:5: Summons for Judgt. 52/2019
defendant submitted that defendants are entitled to contest the suit
unconditionally.
6. From the pleadings of the parties, following point arise for my
consideration to which I have given reasons below them.
Sr.
No.
POINTS FINDINGS
1. Does plaintiff entitle for prayer in summons for
judgment?
Partly
Affirmative.
2. Does defendant Nos.1 and 2 entitle for
unconditional leave to defend ?
In the
Negative.
3. What order? Summary for
Judgment is
made partly
absolute.
R E A S O N S
As to Points No.1 and 2 :
7. In Summons for Judgment, the plaintiff has claimed all the reliefs
which are claimed by him in the plaint. In the plaint, the plaintiff has
claimed amount of Rs.5,31,216.43 paise. The bill amount is from the
date of the suit. The plaintiff has calculated the interest as on the date
of suit and further requests to pay interest at the rate of 11% per annum
on the Principal amount of Rs. 4 lakhs. As per case of the plaintiff, he
has advanced the financial assistance to defendants. The defendant
No.3 stood as Guarantor in the said financial assistance wherein it is
confirmed that the defendants are liable to repay the amount to
plaintiff. The plaintiff has produced bill of exchange. The said
document is signed by authorized person from the defendant No.1
-- 5 of 9 --
:6: Summons for Judgt. 52/2019
Company. It is also signed by Vivek Kumar Bhagat defendant No.2,
that bill of exchange is dated 15/11/2013.
8. The suit is filed on 13/07/2018. Therefore, the defendants have
taken objection of limitation, but it is the case of the plaintiff that later
on, the defendant No.3 has taken earlier bill of exchange. He has issued
two cheques of Rs. 2 lakhs each in the year 2014. The plaintiff has
produced one letter dated 15/11/2013 issued by the defendant No.3 to
plaintiff about asking of return of earlier documents issued by
defendants No.1 and 2. Exh.B is the document signed by defendant
No.3. It appears that defendant No.3 has stood as Guarantor for the
amount of Rs.4 lakhs given by plaintiff to defendants No.1 and 2. The
main defence of the defendant is on the ground of limitation, but the
question of limitation is mixed question of law and the fact, the
question of interest will also be decided on merit, for that purpose, an
opportunity needs to be granted to both the parties. At this stage, it
cannot be said that the suit is time barred. Therefore, the defendants
are not liable to pay the amount. On the contrary, the defence raised by
the defendant is general / formal in nature. Their defence is that the
suit is not within the category of summary suit. The facts mentioned by
the plaintiff are false and that they are entitled to defend the suit
unconditionally.
9. One more ground raised by the defendants is that there is no
written contract between the parties. Therefore, the suit is not tenable
in the nature of summary suit. So, there is no question of considering
summons for judgment.
-- 6 of 9 --
:7: Summons for Judgt. 52/2019
10. In reply to their defence, the defendants relied upon the citations
of Hon’ble Bombay High Court in Jyotsna K. Valia Vs. T.S. Parekh
and Company, 2007 (4) Mh.L.J. 517. In the said judgment, the
Hon'ble High Court hold that “there are three requirements for Summary
Suit, that is, (1) There must be a concluded contract ; (2) The contract
must be in writing ; (3) The contract must contain an express or implied
promise to pay”.
11. The defence also relied on the ratio of the Hon’ble Bombay High
Court in Asmi Jewellery India Limited Vs. Godrej Consumer Products,
2016(1) Mh.L.J. 395 and State Bank of Hyderabad Vs. Rabo Bank
2016(3) Mh.L.J. 645. In both these two citations, the Hon’ble
Supreme Court and Hon’ble Bombay High Court said that “there must be
triable issue for unconditional leave to defend.”
12. Here, the question of limitation should be the triable issue, but
that needs to be decided on merit. Just on the ground of limitation, the
defendants are not liable to defend the suit unconditionally. However,
the question of contract as per the first citations is also material. The
plaintiff has produced the bill of exchange which is signed by defendant
No.1 and 2. The letter dated 15/11/2013 which is signed by defendant
No.3. These two documents shows that certainly the defendants have
signed these two documents in reply to the financial assistance given by
the plaintiff to the defendants and the defendants in assurance has
given bill of exchange and letter dated 15/11/2013. From these two
documents and pleadings of the plaintiff, it can be said that there was
express contract between the parties. Therefore, the suit is not bad for
want of contract. However, the facts regarding the interest and other
-- 7 of 9 --
:8: Summons for Judgt. 52/2019
points will be considered on merit, but in reply, the defendants have
put their general defence/denial. From the defence raised by
defendant, prima facie, they are liable at least to deposit principal
amount of Rs.4 lakh instead of amount with interest because the
question of interest will be decided on merit. Accordingly, this
Summons for Judgment is made partly absolute and I answer the Point
No.1 in the partly affirmative and Point No.2 in the negative and in
answer to Point No.3, I proceed to pass the following order :
ORDER
1. The Summons for Judgment No. 52 of 2019 is made partly absolute.
2. Leave to defend is granted to defendants subject to depositing the
amount of Rs.4,00,000/(Rupees Four Lakhs Only) in the Court within
the period of 60 days from the date of this order.
3. If the amount is deposited by the defendants, the Registrar is directed
to invest the same in fixed deposit in any Nationalized Bank for the
initial period of one year and thereafter, the said period may be
extended by one year every time till the order of this Court.
4. Costs will following main cause.
5. The Summons for Judgment No.52 of 2019 stands disposed of.
(C.V. PATIL)
Adhoc Judge
City Civil Court
Gr. Bombay
Dictated on : 18/12/2021.
Transcribed on : 20/12/2021.
Corrected on : 21/12/2021.
HHJ Signed on : 22/12/2021.
-- 8 of 9 --
:9: Summons for Judgt. 52/2019
“CERTIFIED TO
BE TRUE AND
CORRECT
COPY OF THE
ORIGINAL
SIGNED
JUDGMENT/OR
DER.”
Upload Date Upload Time Name of
Stenographer
22/12/2021 5.00p.m. Mrs. S.U.
MANJREKAR
Name of the
Judge (With
Court Room No.)
HHJ Smt. C.V.Patil (CR 15)
Date of
Pronouncement
of
JUDGEMENT
/ORDER
18/12/2021
JUDGEMENT
/ORDER signed
by P.O. on
22/12/2021
JUDGEMENT
/ORDER
uploaded on
22/12/2021
-- 9 of 9 --