Final Order 1

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MHCC010018752020
Presented on :13/02/2020
Registered on :13/02/2020
Decided on :22/07/2022
Duration :2Y : 5M: 9D
IN THE COURT OF CITY CIVIL AT GREATER MUMBAI
SUMMONS FOR JUDGMENT NO.30 OF 2020
IN
SUMMARY SUIT NO. 682 OF 2019
Mr. Sameer Purushottam Mhatre,
Age 36 year, Occ: Business
residing at Bldg. No.13, Flat
No.196, Kannamwar Nagar-1,
Vikhroli(E),Mumbai-400083.
...Plaintiff
V/s
Ms. Nikita Somnath Kunder
Age: 32 year, Occ: Service
Office: M/s. Ipsos Business
Consulting At Lotus Corporate
Park, Unit No. 1701, 17th floor,
F-Wing, Off western express
highway, Goregaon (E), Mumbai-
400063.
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...Defendant
Appearance :
Adv. Mr. Sanjay Shukla for Plaintiff.
Adv. S.D.Parle for defendant(absent).
CORAM : DR. S. D. TAWSHIKAR
(Court Room No.61)
DATE : 22/07/2022.
ORAL ORDER
(Dictated and pronounced in Open Court)
Plaintiff has taken out present Summons for Judgment as
per Sub rule (4) of Rule 3 of Order XXXVII of Code of Civil Procedure,
1908 (hereinafter referred to as ‘CPC’ for short) and thereby claimed
decree of recovery of sum of Rs.5,00,000/-. The defendant has objected
Summons for Judgment by filing reply and seeks leave to defend.
Plaintiffs’ case in nutshell is as under-
2. Plaintiff and defendant were husband and wife. They
parted their ways by way of decree of mutual consent passed by the
Family Court Bandra vide Judgment and Decree dated 11/12/2017 in
M. Petition F-1510 of 2017. When they were husband and wife but
residing separately, defendant had borrowed an amount of Rs.
5,00,000/- from the plaintiff for the treatment of her mother who was
suffering from Breast Cancer. Against the said borrowing, she issued a
promissory note in favour of the plaintiff on 24/06/2016. However,
after divorce, defendant did not pay the amount under promissory note
and therefore plaintiff was required to issue demand notice through
Lawyer on 12/12/2018. The said notice was replied by the defendant,
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however she denied the liability. That has led the plaintiff to file the
present suit.
3. The defendant has objected the Summons for Judgment by
filing detailed reply and thereby sought leave to defend. Defendant
contends that she has been harassed by the plaintiff while they were
leaving as husband and wife. The plaintiff had prepared a document of
mutual consent and it was signed by her under the pressure. She was
also required to sign the promissory note under the pressure of the
plaintiff. As such the defendant contended that she had never received
an amount from the defendant and therefore, she is not liable to pay
any amount as claimed by the plaintiff under Summons for Judgment.
The defendant further contends that she has raised triable issue
requiring recording of evidence by parties and therefore she claims
unconditional leave to defend.
4. Heard Ld advocate for the plaintiff. He submits that
defendant has executed a promissory note in favour of the plaintiff as
she had borrowed Rs.5,00,000/- from the plaintiff. The said fact was
also reiterated before the Family Court and the order passed by the
Family Court also directed defendant to pay Rs.5,00,000/- to the
plaintiff against the promissory note dated 24/06/2016. Ld. Adv
submits that from the promissory note as well as order of Family Court
it is clear that defendant herself admitted her liability to pay the said
amount. Defence tried to be raised by her before this Court is after
thought. Defendant is a educated lady who works on the post of Asstt.
Directorate in one MNC located in Mumbai and therefore her defence
that she was pressurized to sign the promissory note as well as the
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petition and affidavit before the Family Court, cannot be accepted. He
ultimately prays to make the Summons for Judgment absolute.
5. The defendant has filed her detailed reply as well as
separate affidavit regarding leave to defend. However, neither
defendant nor her advocate appeared before this Court for the
argument. Advocate for the plaintiff argued the Summons for Judgment
on 22/06/2022 and this Court has adjourned the matter as defendant
and her advocate were absent. Today also defendant and her advocate
are absent. As such reasonable opportunity of hearing is extended to
defendant. Hence, matter is taken up for hearing and order.
6. Perused documents placed on record by either sides.
Following points arise for my determination. I have recorded findings
thereon along with reasons, as under :-
Sr. No. Points Findings
1. Whether defendant is entitled for
leave to defend ?
If yes, conditional or unconditional?
Yes, defendant is entitled
for unconditional leave
to defend.
2. What order ? Summons for Judgment
is rejected.
REASONS
Admitted facts-
7. The matter in hand it is admitted fact that plaintiff and
defendant were husband and wife and that they got divorce by mutual
consent from the Family Court Bandra vide Judgment and order dated
11/12/2017.
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As to Point No.1-
8. The execution of promissory note dated 24/06/2016 is not
disputed by the defendant, though she submits that the said promissory
note was executed by her under pressure. She also contends that she
was under pressure even at the time of filing petition for divorce by
mutual consent as well as at the time of order dated 11/12/2017. The
said submission of the defendant
prima facie is not believable. The
defendant is a educated and employed lady. Therefore, at this stage her
contention that she was under pressure is not supported by any
document. On the contrary, it appears that she has till date, not filed
any complaint about the so called pressure and has till date not
challenged the order passed by the Family Court dated 11/12/2017.
The order passed by the Family Court is in clear terms directs the
defendant to return Rs.5,00,000/- to the plaintiff as per the promissory
note dated 24/06/2016. Further she is a employed and earning. She
has also placed on record showing that she is required to pay the
installments of home loan. It reveals that defendant is having her own
independent income. Therefore for this reason also the contention of
pressure is not acceptable at this stage.
9. The defendant in her affidavit in reply dated 13/02/2020,
in para No.4 it has been contended as under,
“Defendant Mother was suffering from Breast Cancer as
being Husband of Defendant he was help her financially
for the treatment of her Mother”.
Further the defendant has pleaded about the email dated 12/03/2018
received by her from the plaintiff and based on the said email it was
contended by the defendant that ‘the plaintiff had help the defendant
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only to overcome his guilt towards the defendant’ and as such she
denies the liability. The portion relevant for present discussion is quoted
here as under-
“
Regarding money you can take own time to return the
same, henceforth I won’t send reminder and calls or email
me when your ready for it.”
10. From the said averment of the defendant coupled with the
promissory note and order of the Family Court, it can be gathered that
the fact of advancement of Rs.5,00,000/-
prima facie appears to be true
and correct. The contention of the defendant about the harassment,
pressurized cannot be considered at this stage in absence of any
material to support the same. In matter in hand it cannot be said that
the proposed defence of the defendant is frivolous and vexatious.
However, the defence is not convincing so as to grant her leave to
defend without any condition. Therefore in view of sub rule 5 of rule 3
of Order XXXVII of CPC this Court is of the view that defendant cannot
be permitted to defend the suit uconditionally. However, so as to afford
a chance to the defendant to prove her contention, leave to defend can
be granted subject to condition of depositing principal amount i.e. Rs.
5,00,000/-. Hence, I answer to Point No.1 accordingly.
As to Point No.2-
11. In view of findings to the Point No.1, it is clear that the
Summons for Judgment deserves to be rejected and defendant is
permitted to defend the suit conditionally. Hence, the order.
ORDER
1. Summons for Judgment No.30 of 2020 is rejected.
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2. Leave to defend is granted subject to depositing Rs.5,00,000/- in
this Court by the defendant within 4 weeks from the date of this
order.
3. Needless to say that if the amount is not deposited, leave to
defend would be vacated.
Date: 22/07/2022. (Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Court Room No.61
Dictated on: 22/07/2022
Transcribed on: 26/07/2022
Signed on: 27/07/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
28/07/2022 Mrs. Vidya V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
22/07/2022
JUDGMENT/ORDER signed by P. O. on 27/07/2022
JUDGMENT/ORDER uploaded on 28/07/2022
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