Final Order 1

Order Details: Other
Pdf Text: MHCC010023322019
CNR No. MHCC010023322019
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.73 OF 2019
SUMMARY SUIT NO.673 OF 2016
Karan Anand Keswani
...Plaintiff.
V/s.
1. M/s. Krishna Fashion World & ORS.
....Defendants.
Appearances:
Plaintiff in person.
Ld. Adv. Mr. Deepak Jamsandekar for defendant Nos.1 & 2.
CORAM : HER HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 11th March, 2022
ORDER
1. The present Summons for Judgment is taken out by the
plaintiff. It was submitted that the defendant No.1 is a Partnership
M
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Firm and defendant Nos.2 and 3 are carrying out the business of
defendant No.1 as partners. The defendant No.1 through defendant
Nos.2 and 3 approached the plaintiff for financial assistance and
requested to draw a Demand Bill of Exchange. On 07.05.2013 the
defendant received the cheque of Rs.3,00,000/ from plaintiff and had
drawn a Demand Bill of Exchange dated 03.05.2013. The defendant
No.2 signed the Bill of Exchange as an acceptor and thereafter, again on
01.06.2013 they had taken the amount of Rs.4,80,000/ from the
plaintiff and have drawn a Demand Bill of Exchange. Thereafter, the
plaintiff on several occasions called upon the defendants to pay a sum
of Rs.7,80,000/ but the defendants failed and neglected to pay the
amount. The plaintiff thereafter filed the present suit and prayed for
issuance of Summons for Judgment.
2. The defendant filed reply to the Summons for Judgment
and denied the claim of plaintiff. It was submitted that there are
several triable issues in the present suit and therefore the defendants
are entitled for unconditional leave. The present suit is bad for mis
joinder of parties. The defendant No.3 has already retired as a partner
with effect from 14.03.2013 and therefore, the defendant No.3 is not at
all involved in the suit transaction. The present suit is also barred by
Limitation and this Court does not have jurisdiction to try the suit. The
plaintiff is carrying out his business of money lending without the
proper license for money lending and hence the suit is not
maintainable. The defendant therefore, prayed for leave to defend the
suit.
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3. Heard Learned Advocates for both the parties. Also
perused the written notes of arguments on behalf of the plaintiff and
defendant Nos.1 and 2.
4. Learned Advocate for defendant Nos.1. and 2 relied on
order dated 01.10.2015 in Civil Appeal No.8194 of 2015. It has been
held by Hon'ble Supreme Court of India that where the defendant has
raised a triable issues or a reasonable defence, the defendant is entitled
to unconditional leave to defend. It was further observed that if the
defendant is entitled to defend the suit, an unconditional leave to
defend the suit is to be granted.
5. In Civil Appeal No.5528 of 2019 it has been held that
where the defendants raised a substantial defence and genuine triable
issues, he is entitled for unconditional leave to defend.
6. After going through the submissions and the documents
filed by both the parties, it seems that the present suit is based upon the
Demand Bill of Exchange. The plaintiff contended that the defendants
obtained financial assistance from plaintiff and had drawn a Demand
Bill of Exchange. The defendants raised several issues which will
require consideration and the real controversy between the parties will
be decided only after opportunity is given to defendant to defend the
suit. The defendant in the reply to Summons for Judgment raised
several triable issues. The defendant submitted that the defendant No.3
has been retired from partnership firm in the year 2013. Also the issue
of Limitation and jurisdiction of this Court has been challenged. The
defendant submitted that the plaintiff was not having proper license to
carry out money lending business and therefore the issues raised by the
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defendant will require the adducing of evidence by parties on merits. It
seems that if the leave to defend is not granted to the defendant, it will
be defendant who will suffer serious prejudice as compared to that of
plaintiff. Considering the nature of the issues raised by the defendant
and as per the observations made by the Hon'ble Supreme Court of
India in the ruling cited Supra, the defendant is entitled for
unconditional leave to defend the suit. I, therefore, proceed to pass the
following order:
ORDER
1. Unconditional Leave is granted to defendants to defend the suit.
2. Defendants shall file their written statement on next date.
3. The Summons for Judgement No.73 of 2019 is disposed off
accordingly.
4. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 11032022 City Civil Court, Gr. MUMBAI
Dictated on : 11032022
Transcribed on : 11032022
checked on : 11032022
Signed on : 14032022
( Smt. R. K. Kshirsagar )
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”
14.03.2022 at 04.35 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Smt.R.K.Kshirsagar
(COURT ROOM NO.13)
Date of pronouncement of
judgment/order
11.03.2022
Judgment/order signed by P.O. on 14.03.2022
Judgment/order uploaded on 14.03.2022
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