Order 1

Order Details: Copy of Judgment
Pdf Text: 1
Lodged on 31/08/2016
Decided on 12/07/2022
Duration on 06Ys.10Ms.12Ds.
MHCC010092472016
IN THE CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.1017 OF 2016
IN
SUMMONS FOR JUDGMENT NO. 28-2018
Mrs.Kamlesh Harish Lamba
having address at 18,
1-C,K, Khadye Marg,
Volga House, Mahalaxmi,
Mumbai. .. Plaintiff
V/s
1. Glodyne Technoserve Ltd.
Having its registered address at
801 Balarama Building,
Bandra Kurla Complex,
Bandra (E),Mumbai-400 051.
2. Mr.Annand Sarnaaik
Adult Occ. Not known
And
3. Ms.Divvyani Annand Sarnaaik
Both having their address at
402, Jairaj CHS Ltd.,
Opp.Income Tax Bldg.,
Bandra Kurla Complex,
Bandra(E), Mumbai-400 051 ..Defendants
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Appearance:-
Adv Rekha Shukla for plaintiff.
None present for defendant nos.1 and 4.
Adv Ganesh Ambekar for defendant nos.2 and 3
CORAM : H.H.J.SHRI.A.V.Kharkar
DATE: 12th July, 2022 C.R.NO.15
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JUDGMENT
This is suit by the plaintiff seeking to recover amount from
the defendants no.1 to 4 under dishonoured bill of exchange.
2. The plaintiff has come with the case that on 21/3/2013
and 30/7/2013, the defendant no.1 company drew two demand
bills of exchange on defendant nos.2, 3 and 4. Thereafter,
defendant no.1 on their own accord paid interest from time to
time and bringing the bill of exchanges. The bill of exchange
was due from 24/12/2013 and 12/12/2013 respectively. The
plaintiff presented bill of exchange of defendant nos. 2 to 4 for
payment. However, the bill of exchange was dishonoured. After
dishonoured bill of exchange, the defendants gives two cheques
one cheque was for Rs.20,00,000/- and another cheque for
Rs.10,00,000/- alongwith interest but till today they have not
paid the amount. The cheque dtd.23/12/2013 were
dishonoured due to “insufficient funds”. The plaintiff demanded
return of amount by issuing notice to his advocate. Inspite of
notice the defendants did not pay amount and hence, suit was
filed.
3. After appearance the plaintiff has moved Summons for
Judgment. They have filed affidavit in support of copy of bill of
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exchange, dishonoured cheques and demand notice. Defendant
nos.2 and 3 have filed affidavit in reply to Summons for
Judgment and sought unconditional leave to defend. The
contention of defendant nos.2 and 3 that they have denied the
transaction. Secondly, they have come with the case that
defendant no.1 company as well as one of the acceptors
defendant no.4 company are under liquidation and in view of
Sec.446 of Companies Act the suit would not be maintainable.
Secondly, the transaction was that of money lending and hit by
the provision of Bombay Money Lenders Act. The suit is not
maintainable. There is no mentioned about the interest
forthwith, defendant no.2 and 3 have not showed in cheque and
not accepted bill of exchange. Hence, they cannot be made liable
under bill of exchange.
4. Heard Counsel for both sides. Perused written arguments
filed by plaintiff and ratio in the case cited before me.
5. The Counsel for defendant has relied upon ratio in the
case of IDBI Trusteeship Services Ltd. Vs. Hubtown Ltd. reported
in 2017(2) Mh.L.J.page 770. In this case Apex Court had laid
down the principles for calling leave to defend. It has been held
that;
“If the defendant satisfies the Court that he has a
substantial defence, that is, a defence that is likely to
succeed, the plaintiff is not entitled to leave to sign
judgment, and the defendant is entitled to unconditional
leave to defend the suit. If the defendant raises triable
issues indicating that he has a fair or reasonable defence,
although not a positively good defence, the plaintiff is not
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entitled to sign judgment, and the defendant is ordinarily
entitled to unconditional leave to defend. Even if the
defendant, raises triable issues, if a doubt is left with
the trial Judge about the defendant's good faith, or the
genuineness of the triable issues, the trial Judge may
impose conditions both as to time or mode of trial, as
well as payment into Court or furnishing security.
Care must be taken to see that the object of the
provisions to assist expeditious disposal of commercial
causes is not defeated. Care must also be taken to see
that such triable issues are not shut out by unduly
severe orders as to deposit or security. If the
defendant raises a defence which is plausible but
improbable, the trial Judge may impose conditions
both as to time or mode of trial, as well as payment
into Court or furnishing security. Care must be taken to
see that the object of the provisions to assist
expeditious disposal of commercial causes is not
defeated. Care must also be taken to see that such
triable issues are not shut out by unduly severe orders as
to deposit or security. If the defeated raises a defence
which is plausible but improbable, the trial Judge may
impose conditions as to time or mode of trial, as well
as payment into Court, or furnishing security. As such a
defence does not raise triable issues, conditions, as to
depositor security or both can extend to the entire
principal sum together with such interest as the Court
feels the justice of the case requires. If the defendant
has no substantial defence and/or raises no genuine
triable issues, and the Court finds such defence to be
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frivolous or vexatious, then leave to defend the suit shall
be refused, and the plaintiff is entitled to judgment
forthwith. If any part of the amount claimed by the
plaintiff is admitted by the defendant to be due from
him, leave to defend the suit, (even if triables issues or a
substantial defence is raised), shall not be granted, unless
the amount so admitted to be due is deposited by the
defendant in Court.”
6. Relying upon the judgment Counsel for plaintiff has
submitted that the defeated nos.2 and 3 have never disputed
that they are signatories to bill of exchange. Hence, there is no
substantial defence or triable issue and in this case leave to
defend should be refused and plaintiff should be entitled to
judgment forthwith.
7. Ongoing through defence raised by the defendant nos.2
and 3 therefore, first defence is regarding the maintainability of
the suit in view of bar imposed by Sec.446 of the Companies
Act. According to them the defendant nos.1 and 4 are under
liquidation. Suit in the present form would not be maintainable.
8. The plaintiff has not disputed that defendant nos.1 and 4
are under liquidation. In their written arguments the plaintiff
has counter this aspect two foil firstly it has been argued that by
application dtd.4/7/2017 the suit was withdrawn against
defendant nos.1 and 4 company. However, ongoing through
record there is nothing to show that the suit has been withdrawn
against defendant nos.1 and 4 company.
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9. The Counsel for defendant has stated that assuming the
suit is withdrawn against defendant no.1 who is the principal
borrower. Suit would not be maintainable against defendant
nos.2 and 3. In this respect, the Counsel for plaintiff has relied
ratio of the case Union Bank of India V. Ankur Corporation and
others reported in AIR 1993 BOMBAY 297 in which it was held
that under provisions of Negotiable Instruments Act, the
defendants as acceptors of the suit Bill of Exchange are liable
thereunder as principal debtors and as such, the suit filed merely
against the acceptors of the suit Bill of Exchange is maintainable
in law even though a separate suit has been filed by the
plaintiffs against the drawers of the suit Bill of Exchange on the
basis of the suit Bill of Exchange along with other reliefs claimed
therein. The other ratio would not be applicable to the present
case.
10. In the case Union Bank of India V. Ankur Corporation and
others (supra) the facts before the Court were that the drawers
of bill of exchange were sued in different sue. Hence, the suit
only against acceptors was held to be maintainable. In this case
the plaintiff is seeking to drop the acceptors and there is no suit
against them. This issue will need adjudication. The defendant
had issued cheque towards discharge of their liability under
dishonoured instrument. The Counsel for defendant has
submitted that there is claimer drawn of pleading. The cheques
mentioned in the plaint were issued only by defendant no.1 and
not defendant nos.2 and 3. Hence, defendant nos.2 and 3
cannot be held liable under dishonoured cheques.
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11. It has been further submitted by the defendant that the
transaction is hit by the Money Lender Act. The tenor of the
plaint show that the transaction was essentially of money
lending by the plaintiff. There is no mentioned in the plaint
what was consideration for issuing bill of exchange. There is no
mention that defendant no.1 was paying interest. This would go
to show that the transaction was that of Money Lending and
would be hit by the provisions of Bombay Money Lenders Act.
Considering the above aspect, there are triable issue. Affidavit
in reply indicate that the defendant has fair or reasonable
defence. Considering the ratio in the case of IDBI Trusteeship
Services Ltd. Vs. Hubtown Ltd.(supra) the defendant would be
entitled to unconditional leave to defend the suit. Hence,
following order is passed.
ORDER
1. Unconditional leave is granted to defendant nos.2 and 3
to defend the suit.
2. Defendant nos.2 and 3 shall file their written statement
within 30 days from the date of this order.
3. Summons for Judgment No.28 of 2018 stands disposed of.
Date : 12/07/2022 (A.V.Kharkar)
Judge
City Civil & Sessions Court
Gr.Bombay
Dictated on : 12/07/2022
Transcribed on : 16/07/2022
HHJ Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
18/07/2022 3.00pm (Mrs.P. P. Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
SHRI A.V.Kharkar
(C.R. No.15)
Date of Pronouncement of
JUDGMENT/ ORDER
12/07/2022
JUDGMENT/ORDER signed by P.O.
on
18/07/2022
JUDGMENT/ORDER uploaded on 18/07/2022
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