Order 1

Order Details: Copy of Judgment
Pdf Text: MHCC010020422018
Presented on 08-02-2018
Registered on 08-02-2018
Decided on 19-03-2021
Duration Yrs. M. Days
03 01 11
CNR No. MHCC010020422018
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.38 OF 2018
IN
SUMMARY SUIT NO.1360 OF 2017
Chirag Bharat Shah
Address: 501 and 502, Jeevan Deep CHS,
Baborao Parulekar Marg, Off Bhavani Shankar
Raod, Mumbai - 400028.
...Plaintiff.
V/s.
1. M/s. Chirag Corporation
having registered office address at
F-12, Everest, 7th Floor, 156, Tardeo Road,
Bombay - 400034.
2. Hitendra Kanaiyalal Rawal
Age: not known
having registered office address at
F-12, Everest, 7th Floor, 156, Tardeo Road,
Bombay – 400034,
And also having residence address at C/3, 212,
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Hari Om Apartment, S.V. Road, Borivali (West),
Mumbai – 400 092.
3. Jignesh Vasant Chauhan
Age: not known
having registered office address at
F-12, Everest, 7th Floor, 156, Tardeo Road,
Bombay – 400034,
And also having address at 139 A, Bhuleshwar
Road, Ground Floor, R.No.31, Kabutar Khana,
Kalbadevi, Mumbai - 400002.
4. Rajesh Shrimankar (HUF)
Age: not known
having registered office address at
F-12, Everest, 7th Floor, 156, Tardeo Road,
Bombay – 400034,
And also having residence address at 34,
5th floor, Mount Unique,
62 A, Peddar Road,
Mumbai – 400 026.
5. Shefali Chetan Shrimankar,
Age: not known
having registered office address at
F-12, Everest, 7th Floor, 156, Tardeo Road,
Bombay – 400034,
And also having residence address at D-902,
9th Floor, Kukreja Place, Near Police Ground,
Vallabh Bhag Line, Ghatkopar (East),
Mumbai – 400 077.
6. Chetan Suryakanth Shrimankar
Age: not known
having registered office address at
F-12, Everest, 7th Floor, 156, Tardeo Road,
Bombay – 400034,
And also having residence address at D-902,
9th Floor, Kukreja Place, Near Police Ground,
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Vallabh Bhag Line, Ghatkopar (East),
Mumbai – 400 077.
....Defendants.
Appearances:
Ld. Advocate Mr. Jeetendra Ranawat for Plaintiff.
Ld. Advocate Mr. Hitentra Jugal Kanani for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.BORLEPWAR
(C.R.No.13)
DATED : 19th March, 2021
J U D G M E N T
1. Plaintiff took out this Summons for Judgement to sign
Judgement in the suit against the defendant for Judgement and decree
for the sum of Rs.10,00,000/- (Rs. Ten Lacs only) inclusive of the
interest at the rate of 1% per month from 08.10.2014 to 08.08.2017
and further interest at the rate of 1% per month from 09.08.2017 till
realization of the suit amount.
2. Bharat Hirji Shah, the Power of Attorney Holder of the
plaintiff filed affidavit in support of the Summons for Judgement.
3. In brief, it is contention of the plaintiff that defendant No.1
is Partnership Firm running in the name of “Chirag Corporation” .
4. One of the partner of defendant No.1 through one Mr.
Jayesh Veera approached the plaintiff and informed the plaintiff that
defendants are in need of loan of Rs.10,00,000/- (Rs. Ten Lacs only) for
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short period i.e. Maximum three months. It was represented as well as
assured that defendants are ready and willing to pay interest at the rate
of 1% per month on the loan amount. Mr. Jayesh Veera is known to the
plaintiff as well as defendants. The plaintiff agreed to give loan amount
of Rs.10,00,000/- (Rs. Ten Lacs only) to the defendant on the
persuation and urging by Mr. Jayesh Veera. It was further agreed as
well as represented by one of the partners i.e. Defendant No.4 who
promised the plaintiff that defendant No.1 shall secure the plaintiff by
giving Promissory Note. Plaintiff agreed to give defendant No.1 loan
amount of Rs.10,00,000/- (Rs. Ten Lacs only). Defendant No.1 through
its partner had given Promissory Note dated 08.10.2014 to the plaintiff
in lieu of the security. The plaintiff upon receiving the Promissory Note
dated 08.10.2014 had given loan amount of Rs.10,00,000/- (Rs. Ten
Lacs only) to defendant No.1 on 10.10.2014 vide cheque bearing
No.934621 drawn on Oriental Bank of Commerce Branch, Dadar
(West), Mumbai. The said amount is debited from the plaintiffs
Account and Banks statement also indicates that the said amount is
credited to the Account of defendant No.1.
5. Inadvertently Advocate of the plaintiff mentioned cheque
No.675946 instead of cheque bearing No.934621 in the plaint.
6. The defendants promised to reimburse the loan amount
alonwith agreed interest within three months. Defendants did not
repay the said loan amount with interest. Defendants requested to the
plaintiff some time to pay the said loan amount with interest.
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7. The defendants also represented to the plaintiff that they
are in financial constraint as their business is in loss and they are on the
verge of overcome from loss and they will soon settle the loan amount.
8. Plaintiff regularly follow with the defendants for the loan
amount and interest. Defendants No.1's one of the partner issued
cheque dated 10.08.2017 bearing cheque No.001205 of the amount of
Rs.11,65,667/-(Rs. Eleven Lacs Sixty Five Thousand Six Hundred Sixty
Seven only) inclusive of interest therein at the rate of 1% per month
drawn on Bank of India, Mahalaxmi Branch.
9. I have gone through the plaint. It appears that plaintiff
mentioned cheque No.001204 dated 10.08.2017 of Rs.11,65,667/-
(Rs.Eleven Lacs Sixty Five Thousand Six Hundred Sixty Seven only) in
the plaint. Perused Summons for Judgement No.38 of 2018. The
Plaintiff mentioned cheque No.001205 dated 10.08.2017 of
Rs.11,65,667/-(Rs. Eleven Lacs Sixty Five Thousand Six Hundred Sixty
Seven only) in the Summons for Judgement.
10. Plaintiff deposited the said cheque on 10.08.2017 in the
Bank but the same is dishonoured with remark “Account Closed”.
11. Defendants malafidely and with dishonestly given the said
cheque whose account is already closed by defendant No.1 through
defendant Nos.2 to 6.
12. Plaintiff through Advocate issued Notice dated 18.08.2017
to the defendants and thereby called upon to pay the loan amount with
interest. Plaintiff claimed Rs.10,00,000/- (Rs. Ten Lacs only) and
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interest at the rate of 1% per month from 08.10.2014 to 08.08.2017
and total amount comes to Rs.1,62,333/- (Rs.One Lac Sixty Two
Thousand Three Hundred Thirty Three only). In this way plaintiff
claimed total amount of Rs.11,62,333/- (Rs.Eleven Lacs Sixty Two
Thousand Three Hundred Thirty Three only) in the said notice and
called upon defendants to pay the same.
13. Plaintiffs Advocate received reply dated 01.09.2017 from
the defendant Nos.4 to 6's Advocates. The defendant Nos.4 to 6 denied
the allegations and the demand of recovery of amount. They conteded
in the reply Notice that they have resigned from the defendant No.1.
14. It is further contention of the plaintiff that the defendant
Nos.4 to 6 were partners of defendant No.1 when the loan was taken
and the defendant No.4 was signatory of the said cheque and the
promissory note too. Resignation of the defendant Nos.4 to 6 doesn't
absolve their liability of defendant No.1.
15. Defendants are equally and severally liable to pay
Rs.11,62,333/- (Rs.Eleven Lacs Sixty Two Thousand Three Hundred
Thirty Three only) and further interest at the rate of 1% per month
from 09.08.2017 till its full realisation.
16. Defendant No.2 Hitendra Rawal filed reply on behalf of
the defendants to the Summons for Judgment.
17. In brief, it is contention of the defendants that the suit is
bad in law for mis-joinder of the parties. Defendant Nos.4 to 6 are
wrongfully and illegally impleaded. Defendant Nos.4 to 6 ceased to be
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the partners of the plaintiffs firm with effect from 01.04.2016,
1.11.2015 and 15.10.2016 respectively.
18. The suit is not maintainable as a Summary Suit within the
meaning of Order 37 Rule 2 of the Code of Civil Procedure.
19. Neither the defendant No.2 Hitendra nor any of his co-
defendants approached the plaintiffs through Mr. Jayesh Veera or
otherwise for the alleged loan with interest.
20. Defendants denied all the adverse contentions raised in the
Summons for Judgment. They have denied the case of the plaintiff.
21. It is further contention of the defendants that neither the
defendant No.2 Hitendra nor his co-defendants gave any representation
of assurances to the plaintiff that defendants were ready and willing to
pay interest at the rate of Rs.1% per month on the alleged loan.
22. None of the defendants never instructed or authorised said
Mr. Jayesh Veera to make any representation, assurances or promises
on behalf of the defendants to the plaintiff.
23. Defendants strongly suspect that the plaintiff is in collusion
with Mr. Jayesh Veera and has prepared a bearer cheque by writing
thereon the name of defendant No.1 and withdrawn across the counter
cash from the Bank to create a false impression as if the plaintiff has
issued the said cheque as and by way of the loan to the defendant No.1.
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24. Defendant No.1 has not issued the said cheque in favour of
the plaintiff. The plaintiff has forged and fabricated the said cheque in
collusion and connivance with Mr. Jayesh Veera to create a false
impression as if the said cheque has been issued by the defendants.
25. Defendant No.2 Hitendra and defendant No.3 to 6 are not
concerned with the closure of any Bank Account of the defendant No.1.
26. Defendant No.4 is not signatary to the said cheque or to the
said promissory note. Defendants are not liable to pay any amount to
the plaintiff. Hence Summons for Judgment be dismissed and
unconditional leave be granted to the defendants to defend the suit.
27. Perused Order 37 Rule 2 and Sub Rule (3) of the Code of
Civil Procedure. As per the said Sub Rule, the defendant shall not
defend the suit referred in sub-rule (1) of Rule 2 of Order 37 of the
Code of Civil Procedure unless he enters an appearance and in default
of his entering an appearance the allegations in the plaint shall be
deemed to be admitted and the plaintiff shall be entitled to a decree for
any sum, not exceeding the sum mentioned in the summons, together
with interest at the rate specified, if any, up to the date of the decree.
28. Perused Order 37 Rule 3 Sub Rule 1 of the Code of Civil
Procedure. As per the said Provision the plaintiff has to serve copy of
the plaint and annextures thereto to the defendant and the defendant
may at any time within ten days from such service enter an appearance
either in person or by pleader and he shall file in Court an address for
services of Notice on him.
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29. Perused Order 37 Rule 3 Sub Rule 4 of the Code of Civil
Procedure. As per the said provision if the defendant enters an
appearance, the plaintiff shall thereafter serve on the defendant a
summons for judgment returnable not less than ten days from the date
of service supported by an affidavit and verifying the cause of action
and the amount classified and stating that in his belief there is no
defence to the suit.
30. Perused Order 37 Rule 3 Sub Rule 5 of the Code of Civil
Procedure. As per said provision the defendant may, at any time within
ten days from the service of such summons for Judgment, by affidavit or
otherwise disclosing such facts as may be deemed sufficient to entitle
him to defend, apply on such summons for leave to defend such suit,
and leave to defend may be granted to him unconditionally or upon
such terms as may appear to the Court to be just.
31. Perused Order 37 Rule 3 Sub Rule 6 of the Code of Civil
Procedure. It runs as under:
“At the hearing of such summons for
Judgment-
(a) if the defendant has not applied for
leave to defend, or if such application has been
made and is refused, the plaintiff shall be
entitled to judgment forthwith; or
(b) if the defendant is permitted to
defend as to the whole or any part of the claim,
the Court or Judge may direct him to give such
security and within such time as may be fixed by
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the Court or Judge and that, on failure to give
such security within the time specified by the
Court or Judge or to carry out such other
directions as may have been given by the Court
or Judge, the plaintiff shall be entitled to
judgment forthwith”.
32. Perused Order 37 Rule 3 Sub Rule 7 of the Code of Civil
Procedure. It runs as under:
“The Court or Judge may, for sufficient cause
shown by the defendant, excuse the delay of
the defendant in entering an appearance or in
applying for leave to defend the suit”.
33. Both Learned Advocates submitted that they have filed
citations in Summons for Judgement No.35 of 2018 in Summary Suit
No.1347 of 2017 and the same be considered in this case.
34. The Learned Advocate appearing for plaintiff relied upon
citation of the Hon’ble Supreme Court of India in the case of IDBI
Trusteeship Services Ltd. Vs. Hubtown Ltd. decided on 15.11.2016 in
Civil Appeal No.10860 of 2016 (Arising out of SLP (Civil) No.31439 of
2015. He specifically relied upon para No.18 of the citation. It runs as
under:
“a. 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 that defendant is entitled to unconditional
leave to defend the suit;
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b. 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 entitled to sign
judgment, and the defendant is ordinarily entitled to
unconditional leave to defend;
c. 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 payent 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;
d. If the Defendant 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 deposit or security or both
can extend to the entire principal sum together with such
interest as the court feels the justice of the case requires.
e. If the Defendant has no substantial defence and/or
raises no genuine triable issues, and the Court finds such
defence to be frivolous ir vexatious, then leave to defend
the suit shall be refused, and the plaintiff is entitiled to
judgment forthwith;
f. 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 triable 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”.
35. The Learned Advocate appearing for the defendants relied
upon six citations.
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36. The Learned Advocate for defendants relied upon citation
of the Hon'ble Supreme Court in the case of Chandradhar Goswami &
Ors Vs. Gauhati Bank Ltd., in Civil Appeal No.733 of 1964, decided on
14.10.1966. The Learned Advocate for defendant submitted that as per
Section 34 of Evidence Act the defendants cannot be saddled with
liability of that amount. He further submits defendant cannot be
charged with liability merely on the basis of entries in books of account.
The Learned Advocate for plaintiff submits that the amount of loan is
given to the defendants by cheque and the cheque amount is deducted
from the account of plaintiff. The facts and circumstances of cited case
and case at hand are not similar with each other.
37. The Learned Advocate appearing for defendants relied
upon second citation in the case of the Hon'ble Supreme Court in the
Case of Ishwar Dass Jain (Dead) through Lrs. Vs. Sohan Lal (Dead) By
Lrs. (2000) 1 Supreme Court Cases 434. He submits that entries in the
statement of the account itself do not create any liability. I have gone
through the citation. The Learned Advocate appearing for plaintiff
submitted that loan amount is given by cheque to the defendants. The
facts and circumstances of cited case and case at hand are not similar
with each other.
38. The Learned Advocate appearing for the defendants relied
upon citation of Calcutta High Court in the case of Kiranmayi Dasi Vs. J.
Chatterji decided in application for final Judgment in Suit No.988 of
1944. The Learned Advocate for defendants submits that defendants
have good defence. They have raised triable issues and therefore,
unconditional leave be granted to defend the suit. I have gone through
the Judgment. The Hon'ble Calcutta High Court laid down some
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propositions with regard to the granting of leave to defend the suit.
Those propositions are as under:
(a) If the defendant satisfied the Court that he has a good
defence to the claim on its merits the plaintiff is not
entitled to leave to sign judgment and the defendant is
entitled to unconditional leave to defend.
(b) If the defendant raises a triable issue indicating that he
has a fair or bona fide or reasonable defence although not
a positively good defence the plaintiff is not entitled to
sign judgment and the defendant is entitled to conditional
leave to defend.
(c) If the defendant discloses such facts as may be deemed
sufficient to entitle him to defend, that is to say, although
the affidavit does not positively and immediately make it
clear that he has a defence yet shews such a state of facts
as leads to the inference that at the trial of the action he
may be able to establish a defence to the plaintiffs claim,
the plaintiff is ot entitled to judgment and the defendant
is entitled to leave to defend, but in such a case the Court
may in its discretion impose condition as to the time or
mode of trial but not as to payment into Court or
furnishing security.
(d) If the defendant has no defence or the defence set up is
illusory or sham or practically moonshine, there ordinarily
the plaintiff is entitled to leave to sign judgment and the
defendant is not entitled to leave to defend.
(e) If the defendant has no defence or the defence is illusory
or sham or practically moonshine then, although
ordinarily the plaintiff is entitled to leave to sign
judgment, the Court may allow the defence to proceed if
the amount claimed is paid into Court or otherwise
secured and give leave to the defendant on condition and
thereby show mercy to the defendant by enabling him to
try to prove a defence.
39. The learned Advocate for defendants relied upon citation of
Hon'ble Delhi High Court in the case of Goyal Mg Gases Ltd Vs.
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Premium International Finance Ltd decided on 31.07.2006 in I.A.
No.1327/2003 in C.S. (OS) 2010/98. The Learned Advocate for
defendants relied upon para No.42 to 46 of the Judgment and
submitted that the Court has to satisfy at the time of passing Judgment
and decree, firstly of the existence of such documents and secondly, as
to the legality and validity of documents. The facts and circumstances
of cited case and case at hand are not similar with each other.
40. The Learned Advocate appearing for defendants relied
upon citation of State Bank of Hyderabad Vs. Rabo Bank (2015)10
Supreme Court Cases 521. The Learned Advocate appearing for
defendants submitted that the Hon'ble Supreme Court referred case of
Kiranmoyee Dassi Vs. J. Chatterjee in para No.15 of the citation. The
Learned Advocate appearing for the defendant has already filed citation
in the case of Kiranmoyee Dassi Vs. J. Chatterjee.
41. The Learned Advocate appearing for defendants relied
upon citation in the case of Raj Duggal Vs. Ramesh Kumar Bansal 1991
Supreme Court Cases 191. The Hon'ble Supreme Court held where
defence raises a triable issue leave should not be declined merely
because of inherent implausibility or inconsistency of the defence.
42. Para No.3 of the citation in the case of Raj Duggal Vs.
Ramesh Kumar Bansal 1991 Supreme Court Cases 191 runs as under:
Leave is declined where the court is of the opinion
that the grant of leave would merely enable the
defendant to prolong the litigation by raising
untenable and frivolous defences. The test is to see
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whether the defence raises a real issue and not a
sham one, in the sense that if the facts alleged by
the defendant are established there would be a good
or even a plausible defence on those facts. If the
Court is satisfied about that leave must be given. If
there is a triable issue in the sence that there is a
fair dispute to be tried as to the meaning of a
document on which the claim is based or
uncertainty as to the amount actually due or where
the alleged facts are of such a nature as to entitle
the defendant to interrogate the plaintiff or to cross-
examine his witnesses leave should not be denied.
Where also, the defendant shows that even on a fair
probability he was a bona fide defence, he ought to
have leave. Summary Judgments under Order 37
should not be granted where serious conflict as to
matter of fact or where any difficulty on issues as to
law arises. The court should not reject the defence
of the defendant merely because of its inherent
implausibility or its inconsistency.
43. The defence raised by the defendant is of total denial. It
appears that the defences raised by the defendant are plausible but
improbable. No documents is annexed with the reply filed to the
Summons for Judgment regarding forged and fabricated cheque.
Considering the specifically defence raised in para No.8 and 10 of the
reply filed to the Summons for Judgment I am of the Opinion that
defendants are entitled to leave to defend the suit conditionally.
44. Hence, leave to defend can be granted to the defendants
subject to deposit of loan amount of Rs.10,00,000/- (Rs. Ten Lakhs
only) in the Court. Hence, I proceed to pass the following order.
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ORDER
Following order is passed in Summons for Judgement no. 38 of 2018 in
Summary Suit no. 1360 of 2017 -
1. Leave to defend the Summary Suit no. 1360 of 2017 is granted to
the defendants on payment of Rs.10,00,000/-(Rs. Ten Lakhs only) to be
deposited in the Court till 04-05-2021.
2. After depositing the said amount in the Court, the said amount be
fixed in Fixed Deposit in Nationalised Bank till final disposal of The
Summary Suit or until further order.
3. The Summons for Judgement will be made absolute, if defendants
fail to deposit the said amount of Rs.10,00,000/- in the Court as
directed above.
4. After depositing the said amount as directed above defendants are
allowed to file Written Statement on 11-06-2021.
Matter adjd for compliance to 11-06-2021.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 19/03/2021 City Civil Court, Gr. MUMBAI
Dictated on : 19/03/2021
Transcribed on : 04/05/2021
Checked on : 06/05/2021
and Signed on : 10/05/2021.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
10.05.2021 at 01.30 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 19.03.2021
Judgment/order signed by P.O. on 10.05.2021
Judgment/order uploaded on 10.05.2021
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