Final Order 2

Order Details: Other
Pdf Text: Summons for Judgment No. 31/2020 in 1 Order.
Sum.Suit No. 12/19.
MHCC010018922020
Presented on : 13-02-2020
Registered on : 13-02-2020
Decided on : 29-08-2023
Duration : 3 years, 6 months, 16 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
SUMMONS FOR JUDGMENT NO. 31 OF 2020
IN
SUMMARY SUIT NO. 12 OF 2019
AAR CUBE ENTERPRISE LLP a )
Limited Liability Partnership firm )
Registered under the provisions of )
Limited Liability Partnership Act, )
2008 and having its office at Second )
Floor, Shreenath Bhavan, 432, )
Kalbadevi Road, Mumbai 400 002 )...Plaintiffs
Versus
Messrs NEEV REALTORS a firm )
Carrying on business at 101, Sunder )
Apartments, Nesbit Road, Mazgaon )
Mumbai 400010 )...Defendants
Smt. Kalpana Shah, Advocate for the plaintiffs.
Smt. Minal Parab, Advocate for the defendants.
CORAM : HIS HONOUR JUDGE SHRI S.D.KULKARNI.
(COURT ROOM NO.66).
DATE : 29th AUGUST, 2023.
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Summons for Judgment No. 31/2020 in 2 Order.
Sum.Suit No. 12/19.
ORDER
1. The plaintiff has filed the suit for recovery of
Rs.29,95,000/- alongwith interest on Rs.25,00,000/- at the rate of 12%
p.a. with cost of the suit.
2. It is case of the plaintiff that plaintiff has deposited a sum
of Rs.50,00,000/- by a cheque bearing No. 665825 dated 04/06/2015
drawn on Oriental Bank of Commerce, Silk Bazar, Mumbai in favour of
defendant. Said cheque was duly received by defendant and encashed
through their banker on or about 04/06/2015. The defendant has
repaid a sum of Rs.25,00,000/- on 06/06/2016 by cheque drawn by
defendant in favour of plaintiff. The defendant also made payment of
interest at the agreed rate of 12% p.a. after deducting tax at source for
the period till 31/03/2017. The defendant forwarded the confirmation
of account by stating that the principal sum of Rs.25,00,000/- and
interest at the rate of 12% p.a. from 01/04/2017 remains due and
payable by defendant to plaintiff.
3. It is further alleged by plaintiff that inpsite of repeated
demand and request, the defendant failed and neglected to pay the said
dues. The plaintiff issued notice through advocate on 28/09/2018 and
called upon defendant to make the payment of principal sum and
interest thereon at the rate of 12% p.a. from 01/04/2017. Thus,
plaintiff filed present suit for directing defendant to pay sum of
Rs.29,95,000/- and interest on Rs.25,00,000/- at the rate of 12% p.a.
till final realization and cost of suit.
4. On the other hand, defendant by filing affidavit in reply
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Summons for Judgment No. 31/2020 in 3 Order.
Sum.Suit No. 12/19.
disputed the payment of Rs.50,00,000/- by plaintiff to the defendant.
The defendant also denied that he agreed to repay the amount
alongwith interest at the rate of 12% p.a. The defendant further
disputed that they have repaid the sum of Rs.25,00,000/- by cheque to
the plaintiff. The contention of defendant that the company AAR Cube
Enterprises Pvt. Ltd. was not in existence on the date of signing the
confirmation of account. The confirmation of account signed by AAR
Cube Enterprises Pvt. Ltd. is itself null and void as on 23/12/2016 the
above company stands transferred to AAR Cube Enterprises LLP. Thus,
suit of the plaintiff is not maintainable. The contention of defendant
that plaintiff has filed the suit in order to grab amount. Therefore,
prayed for leave to defend unconditionally by dismissing summons for
judgment.
5. Perused summons for judgment, affidavit in reply filed by
the defendant. Therefore following points arose for my determination
with my findings thereon for the reasons enumerated below :
SR.NO. POINTS FINDINGS
1. Whether plaintiff is entitled for the
summons for judgment ?
In the Affirmative.
2. Whether the defendants have just and
valid ground to grant leave to defend ?
In the Negative.
3. What order ? As per final order.
REASONS
AS TO POINTS NO.1 AND 2 :-
6. The contention of the plaintiff that they have deposited the
sum of Rs.50,00,000/- by cheque in the account of defendant and the
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Summons for Judgment No. 31/2020 in 4 Order.
Sum.Suit No. 12/19.
defendant have also encashed the said amount through their bankers.
Further the contention of the plaintiff that the defendant has forwarded
letter of confirmation of account by contending that sum of
Rs.25,00,000/- alongwith interest at the rate of 12% p.a. is remains due
and payable by defendant to plaintiff. In support of the above
contention, the plaintiff has filed on record the copy of confirmation of
account issued by the defendant company in favour of plaintiff, therein
defendant admitted that principal sum Rs.25,00,000/- is due and
payable and Rs.25,00,000/- was deposited by defendant on
06/06/2016. The plaintiff has filed on record notice issued by the
plaintiff to defendant. The contention of the plaintiff that said notice
though received by defendant failed to file reply as well as sum payable
to the plaintiff. All above documents sufficiently shows that sum of
Rs.25,00,000/- is remains due and payable by defendant to plaintiff
alongwith agreed rate of interest 12% p.a.
7. The defendant taken a stand that on the day of execution of
confirmation of account plaintiff company was not in existence but in a
plaint para no.1 and 2 plaintiff sufficiently stated that the plaintiff prior
to it being registered under the provisions of Limited Liability
Partnership Act, 2008 was carrying on business in the name of AAR
Cube Enterprises Pvt. Ltd. All movable, immovable, tangible properties,
assets, interests, rights, privileges, liabilities, obligations and whole
undertaking of AAR Cube Enterprises Pvt. Ltd. stands transferred to and
vested in AAR Cube Enterprises LLP.. The defendant have taken stand of
total denial, even defendant denied that plaintiff advanced it loan of
Rs.50,00,000/- and it had repaid amount of Rs.25,00,000/-, but above
contention of defendant falsify by its confirmation of account letter
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Summons for Judgment No. 31/2020 in 5 Order.
Sum.Suit No. 12/19.
issued by defendant. Therefore, in my opinion, the defence taken by the
defendant is not acceptable. The defendants do not have just and valid
ground to grant leave to defend. The plaintiff is entitled to recover the
cheque amount alongwith accrued interest from the defendants.
Therefore, I answer points no.1 and 2 accordingly. Costs of the suit is
liable to be saddled on the defendants. Hence, I pass following order :
- ORDER -
1. Summons for Judgment No. 31/2020 is made absolute.
2. Summary Suit No. 12/2019 is decreed.
3. The defendants are directed to pay sum of Rs.29,95,000/-
alongwith interest on Rs.25,00,000/- at the rate of 12% p.a. to
the plaintiff from the date of the suit till its realization within
three months from the date of decree.
4. The defendants shall bear the cost of the suit.
5. Decree be drawn up accordingly.
6. Summons for Judgment No. 31/2020 is disposed off accordingly.
(S.D.KULKARNI)
Judge,
City Civil Court,
(Court Room No.66)
Date : 29/08/2023. Mumbai.
1. Dictated online on : 29/08/2023.
2. Placed for correction on : 29/08/2023.
3. Checked on : 29/08/2023.
4. Correction carried on : 30/08/2023.
5. Signed on : 30/08/2023.
6. Delivered to Certified :
Copy Section on
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Summons for Judgment No. 31/2020 in 6 Order.
Sum.Suit No. 12/19.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
31/08/2023. 4.57 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri S.D.Kulkarni.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 29/08/2023.
Judgment/Order signed by P.O. on 30/08/2023.
Judgment/Order uploaded on 31/08/2023.
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