Final Order 1

Order Details: Other
Pdf Text: MHCC010018742020 Presented on 13/02/2020
Registered on 13/02/2020
Decided on 27/11/2025
Duration 05Y: 09M: 14D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 29 OF 2020
IN
SUMMARY SUIT NO. 565 OF 2017
State Bank of India ]
a Bank established under the State Bank ]
of India Act, 1955, having its branch ]
office at 2nd Floor, Mumbai Main Branch ]
Building, Mumbai Samachar Marg ]
Horniman Circle Mumbai – 400023. ]
through its authorized officer ]
Mr. Mahendra M. Asrani, age 56 years. ]...Plaintiff
VERSUS ]
1.Bank of Maharashtra ]
having address at Central Office, ]
Lokamangal, Pune-411005. ]
2. Mr. Visat Dayal Singh ]
having address at Shahsikant B Bhagat ]
Bhagatwarda, Canacona Goa-403702. ]
3. Mr. Pio Cotta (Abated) ]
having address at Cool Breeze Restaurant, ]
Palolem Beach, Canacona Goa – 403702. ]...Defendants
Appearance :-
Ld. Adv. Abhayjeet Khairwar for plaintiff.
Defendants absent.
-- 1 of 8 --
2 SJ No.29/20 In
Sum Su No.565/2017
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO.: 81
DATE : 27/11/2025.
ORDER
( Dictated and pronounced in open Court)
01] The plaintiff has filed this summons for judgment against
defendants No.1 and 3 on 13/02/2020. Defendant No.1 failed to file
reply to summons for judgment therefore, order was passed on
26/06/2023 to proceed summons for judgment without reply against
defendant No.1. Further, defendant No.3 filed reply to summons for
judgment however, he is expired during pendency of suit therefore,
matter is abated against him vide order dated 26/06/2023.
02] As per the plaintiff, it is a corporation established under
the State Bank of India, 1955. Dy. Manager Mr. Mahendra M. Asrani is
authorized vide Authority Letter dated 29/06/2015 to file the present
suit. The plaintiff bank is engaged in the banking business. Defendant
No. 1 is a bank and defendants No.2 and 3 are its individuals. Further,
on account of commission and omission on the part of defendant No.1
a wrongful gain is gained by defendants No. 2 and 3. On 26/02/2014,
the Centralized Clearing Process Centre branch of the plaintiff had
received various cheques for clearing from defendant No. 1. The list of
the cheques included a cheque bearing No. 592672 dated 14/12/2013
for Rs. 50,000/- and cheque bearing No.592673 dated 28/12/2013 for
sum of Rs. 50,000/- i.e. disputed cheques. The said cheques were
issued by defendant No. 2 in favour of defendant No. 3. However, said
cheques could not be debited to the account of defendant No. 2 due to
insufficient funds. However, due to some technical issue the said
cheques could not be returned to the presenting bank in time.
Therefore, defendant No. 3 received the credit against the said cheques
-- 2 of 8 --
3 SJ No.29/20 In
Sum Su No.565/2017
and Rs. 1,00,000/- was credited in the account of defendant No. 3.
This is a case of unjust enrichment by which defendants No. 2 and 3
unduly have benefited due to system error which was beyond the
control of the plaintiff bank. The plaintiff bank has lost amount of
Rs. 1,00,000/- as said amount is credited in the account of defendant
No. 3 however, said amount could not be debited to the account of
defendant No. 2 on account of funds insufficient. Therefore, plaintiff
repeatedly took the said issue with defendants to recover the said
amount of Rs. 1,00,000/-. However, defendants did not respond for the
same. Therefore, plaintiff bank issued letter dated 26/02/2014 to
defendant No. 1 and brought to their notice that due to some technical
reasons plaintiff could not return the cheques on time and even mail to
that effect was sent to defendant No. 1. Thereafter, plaintiff bank
issued letter dated 02/04/2014 to defendant No.1 to issue pay order of
said amount. However, defendant No.1 did not respond to the same.
Therefore, plaintiff bank issued letter dated 15/04/2014 to defendant
No. 1 to seek details of defendants No. 2 and 3 to initiate legal actions
against them. However, defendant No.1 neglected and therefore,
plaintiff bank issued another letter dated 13/05/2014 and called upon
defendant No. 1 to pay an amount of Rs. 10,68,008/-.
03] Thereafter, plaintiff bank issued another letter dated
01/08/2014 by way of reminder to defendant No. 1 to bring to the
notice of defendant No. 1 that despite follow up the amount of four
cheques being amount of Rs.2,60,065/- has been received by
defendant No. 1 long back and same is not credited in the account of
the plaintiff bank. Defendant No. 1 did not reply to the said letter
therefore, plaintiff bank issued letter dated 15/12/2014 and called
upon defendant No. 1 to settle the matter. Thereafter, plaintiff bank
-- 3 of 8 --
4 SJ No.29/20 In
Sum Su No.565/2017
took matter to defendant No. 2 and requested to arrange for the funds
to enable the plaintiff bank to debit the account of defendant No. 2
vide Letter dated 27/01/2015. However, defendant No. 2 did not
reply to the said letter. Therefore, plaintiff bank issued another letter
dated 10/02/2015 to defendant No. 1 and called upon defendant to
make the payment of said two cheques. Further, plaintiff issued letters
dated 06/07/2015 and 24/07/2015 to defendant No. 1. However,
defendant No. 1 did not respond to the said letters therefore, plaintiff
bank issued letter dated 15/09/2015 to defendant No.1. Further,
defendant No. 1 failed to reply the said letter therefore, plaintiff bank
issued letters dated 16/10/2015, 19/11/2015, 14/12/2015, and
02/01/2016 and called upon defendant No. 1 to pay amount of said
disputed cheques. However, defendant No. 1 failed to reply to the said
letters. As defendants failed to pay an amount of Rs. 1,00,000/- to the
plaintiff therefore, plaintiff is entitled for interest at the rate of 18%
p.a. on amount of Rs. 1,00,000/- from 22/02/2014 to 23/01/2017.
Thus, plaintiff is entitled for an amount of Rs. 1,00,000/- towards
principal and Rs. 52,225 towards interest, total amounting to
Rs.1,52,225/-. Further, defendant No. 1 has not filed reply to summons
for judgment and it has no defence. Therefore, plaintiff bank is entitled
for Judgment under Order 37, Rule 3 (6)(a) of Civil Procedure Code.
Hence, summons for judgment may be allowed6 pt.
04] Perused summons for judgment and record of the case.
Heard counsel for the plaintiff. On perusing plaint, it appears that
plaintiff and defendant No. 1 are bank constituted under the State
Bank of India Act, 1955 and Banking Companies (Acquisition and
Transfer of Undertakings) Act 1970 and engaged in the banking
business. Further, on 26/02/2014 the Centralized Clearing Processing
Centre, branch of the plaintiff bank had received various cheques for
-- 4 of 8 --
5 SJ No.29/20 In
Sum Su No.565/2017
clearing from defendant No.1 bank. Further, in the list of the said
cheques disputed cheques bearing No. 592672 dated 14/12/2013 and
No. 592673 dated 28/12/2013 for Rs. 50,000/- each were referred.
Further, said cheques were issued by defendant No.2 in favour of
defendant No.3. There was no sufficient funds in the account of
defendant No. 2 however, due to some technical issue the said cheques
could not be returned to the presenting bank in time by plaintiff bank.
However, said cheques were credited in the account of defendant No. 3
and he received an amount of Rs.1,00,000/-. Further, it is contention
of plaintiff bank that vide letters dated 26/02/2014, 02/04/2014,
13/05/2014, 01/08/2014, 15/12/2014, 27/01/2015, 10/02/2015,
15/04/2015, 06/07/2015, 24/07/2015, 15/09/2015, 16/10/2015,
19/11/2015, 14/12/2015 and 21/12/2015 were called upon
defendant No. 1 to settle the matter. Further, defendant No. 2 was
called upon to deposit the amount of said cheques vide letter dated
27/01/2015. However, it appears that none of the defendants replied
to the letter issued by the plaintiff bank. It is pertinent to note that
plaintiff bank has filed photocopies of said letters on record vide list
Exh. 4 to support its contention. On perusing said letters, it appears
that all are photocopies therefore, same cannot be considered in the
evidence. Moreover, In view of settled position as laid down in Neebha
Kapoor Vs. Jayantilal Khandwala and others, AIR 2008 SC 1117
wherein, Hon'ble Apex Court has observed that, '
at the time of hearing
summons for judgment, plaintiff has to file original documents.' Thus,
the plaintiff has to file original documents at the time of hearing of the
summons for judgment. Further, plaintiff has not filed copy of original
authority letter vide List Exh. 4. Therefore, I am of the view that
though defendant No. 1 has not filed reply to summons for judgment,
plaintiff is not entitled for judgment in view of Order 37, Rule 3 (6)(a)
-- 5 of 8 --
6 SJ No.29/20 In
Sum Su No.565/2017
of C.P.C. The plaintiff bank has to prove its claim on the basis of oral
and documentary evidence. As defendant No. 1 has not filed reply to
summons for judgment, it is not entitled for leave to defend the suit.
Thus, it is necessary to dismiss the summons for judgment. Hence, I
proceed to pass the following order.
ORDER
1) Summons for Judgment No.29/2020 in Summary Suit
No. 565/2017 is dismissed.
2) No order as to costs.
3) Summons for Judgment No.29/2020 is disposed of
accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court, Mazgaon, Mumbai.
C.R.No.81
Date- 27/11/2025
Dictated on : 27/11/2025
Corrected & signed on : 28/11/2025
-- 6 of 8 --
7 SJ No.29/20 In
Sum Su No.565/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
29/11/2025 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri. Sangram S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
27/11/2025
JUDGMENT/ORDER signed by P. O. on 28/11/2025
JUDGMENT/ORDER uploaded on 29/11/2025
-- 7 of 8 --
8 SJ No.29/20 In
Sum Su No.565/2017
-- 8 of 8 --