Final Order 1

Order Details: Other
Pdf Text: SJ 52/18 IN SUM.339/17 ORDER 1
EXHIBIT
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.52 OF 2018
( CNR No.MHCC010023892018 )
IN
SUMMARY SUIT NO. 339 OF 2017
Sunkappa Gurappa Jadhav
Age44 yrs., Of Mumbai an adult Indian , having
his addess at Lal Patra Chawl No 251 Room No
10 Cross road Dharavi Mumbai 400017 … Plaintiff
Vs.
Satish Chandrakant Bhoir
Age not known, of Mumbai, an adult Indian
Inhabitant. Working for gain with Head Post
Office, Dadar (East), Mumbai 400014 ..Defendant
Advocate Mr.Ramesh Jain for the plaintiff.
Advocate Mr.Laxminarayanan for Defendant .
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 11th April, 2022
JUDGMENT
1. The plaintiff has filed Suit for recovery of Rs.50,048.63ps.
alongwith interest on principal amount of Rs.45,000/ with 15% p.a.
interest till the realisation of the amount.
2. Brief facts of the case are as under:
The plaintiff is resident of Mumbai and doing manufacturing
business. The defendant is also resident of Mumbai and working for
gain in post office. On 15/5/2016 Defendant has executed demand
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SJ 52/18 IN SUM.339/17 ORDER 2
Promissory Note in favour of plaintiff for valuable consideration of
Rs.45,000/. The defendant promised to pay the said amount alongwith
15%p.a. interest on demand by the plaintiff . Plaintiff has demanded the
said amount from the defendant but he neglected and failed to pay
amount. On 17/12/2016 legal notice was issued to the defendant. The
defendant has given false reply and again refused to pay the amount.
Therefore, this suit is filed for recovery of amount.
3. The defendant has filed application for leave to defend. The
defendant has denied execution of promissory note in favour of
plaintiff. He has also denied rate of interest. As per statement of
defendant the address of Promissory Note is from Head office Dadar .
This shows that false paper is prepared by plaintiff dated 15/5/2016.
Actually on 15/5/2016 the defendant was neither present at Dadar
Head office nor he was working there. At the relevant point of time the
defendant was working at Sion. However, there is no mention in the
promissory note how the amount has been paid to the plaintiff either by
cheque or pay order. Because as per Reserve Bank of India rules cash
transaction is not allowed, if somebody possess moneylending license.
The said promissory note is silent about rate of interest. There is no
agreement between the parties. Therefore, summary suit is not tenable .
The plaintiff has not brought documents to show the details of
moneylending license. After receipt of notice from plaintiff the
defendant has immediately replied. The plaintiff has filed suit with
malafide intention just to harrass the defendant. Suit is hopelessly
barred by law of limitation and without cause of action, filed by plaintiff
at the instance of enemy of the defendant. In the reply the defendant
has relied upon landmark citations from Hon'ble High Court and
Hon'ble Supreme Court those are as follows:
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SJ 52/18 IN SUM.339/17 ORDER 3
1) In M/s.Mechalae Engineers & Manufacturers V/s.M/s.Basic
Equipment Corporation (1977) SCC 1060.
2) V.K.Enterprises V/s. Shiva Steels (2010) 9 SCC 256
3) M/s.Housing Development Delhi H.C. 2015/14.
The defendant also relied upon other judgments of Hon'ble Supreme
Court. But in all judgments the question was that if there is good
defence then leave to defend suit unconditionally needs to be granted.
But that question will be decided at the stage of finding of points.
By taking recourse of the citation, it is the submission of defendant that
he has raised triable issues and therefore, he is entitled for leave to
defend the suit unconditionally. The defendant requested to allow him
to defend the suit and lastly requested to dismiss Summary Suit.
4. From pleadings and documents on record following points arise
for consideration to which I have given reasons before them:
Sr.
No.
POINTS FINDINGS
1 Does plaintiff entitled for relief sought in
the summons for judgment ?
Partly Affirmative
2. Does defendant entitled for leave to defend
the suit unconditionally ?
In the Negative
3 What Order ? Summons for
Judgment is made
partly absolute
R E A S O N S
AS TO POINT NOS.1 AND 2:
5. It is the case of the plaintiff that he has given Rs.45,000/ to the
defendant. Accordingly the defendant has executed promissory note on
15/5/2016. The plaintiff has filed copy of promissory Note alongwith
address of defendant shown therein is from Dadar Head office. The
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defendants has not denied service in the post office but it is his
submission that when promissory note is executed at that time he was
not serving at Dadar but he was serving at Sion. The defendant has
produced Article A document alongwith leave to defend application.
From that Article A, it appears that by order dated 17/11/2014 the
defendant was deputed somewhere for the period of one year. If he was
deputed from 17/11/2014 for one year i.e. certainly after 17/11/2015
again he would be there at Dadar for service. The Promissory Note
dated 15/5/2016 was executed after 17/11/2015. Therefore, the
address mentioned on promissory note is the address of serving place of
defendant.
6. Defendant failed to pay amount inspite of demand. Therefore,
plaintiff has filed the suit. Before suit plaintiff has given notice to
defendant the said notice is replied by defendant by letter dated
24/12/2016. In the said notice reply the defendant has raised objection
of Blackmoney transaction of plaintiff. It is mentioned by defendant in
his reply to the notice that plaintiff approached to defendant in the post
office. The plaintiff wants to make his money White by preparing such
kind of documents. At the relevant point of time the defendant refused
to sign such documents. Therefore, in revengeful mode the false suit is
filed. But, in the application for leave to defend the suit and in written
notes of arguments, the defendant has raised objection about
promissory note and moneylending license. The defendants submitted
that the plaintiff has not produced documents to show that at the
relevant point of time he was having moneylending license. In the reply
of the notice of plaintiff the defendant has admitted approaching to
plaintiff. In that reply he has raised defence, which is not raised by him
in leave to defend the suit. In leave to defend the suit he has raised
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other objections that is plaintiff is not entitled to recover interest.
However, he is not entitled to pay the amount by document that is
promissory note. So one more defence of the defendant that there is no
written agreement between the parties but Promissory note which is
signed by defendant can be called as written agreement. Therefore, this
objection of the defendant is also not acceptable.
7. On last date the defendant has filed medical papers from those
medical papers it appears that in the year 2014 the defendant was
having some health problem. The transaction in question in this case is
of the year 2016, therefore the papers regarding year of 2014 are not
prima facie relevant to the year of transaction.
8. The defendant has raised objection of limitation. The promissory
note is executed on 15/5/2016 and the suit is filed on 15/2/2017 which
is very well within limitation. As per statement of the plaintiff the
defendant has received Rs.45,000/ the promissory note disclose
15%p.a. interest rate. The defendants have received notice but refused
to pay the amount. The said promissory note is signed by defendant.
But he refused to pay the amount and that can be said as cause of
action. The defendant has also raised objection that the plaintiff is not
having legal moneylending license. The plaintiff has produced
promissory note which is signed by defendant. Therefore, at this stage
this submission also not acceptable. The defendant is liable to pay
Rs.45,000/, the principal amount. The plaintiff has also charged
Rs.5000/ interest but considering the question of moneylending license
and the question of interest will be decided lateron during trial of the
case. Prima facie, from pleading, and documents the plaintiff is entitled
for Rs.45,000/. Accordingly the Summons for Judgment is made partly
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absolute and leave to defend the suit unconditionally is rejected.
Accordingly, I answer to point no.1 partly in affirmative, point no.2 in
the negative. Hence, following order is passed:
O R D E R
1. Summons for Judgment No.52/18 is made partly absolute.
2. Leave to defend the suit is granted to the defendant subject to
deposit of amount of Rs.45,000/(Rs.Forty five Thousand ) within
60 days from the date of this order.
3. If defendant fails to deposit the amount within stipulated time
the plaintiff shall proceed with the suit as if there is no defence.
4. The Summons for Judgment No.52/2018 is disposed of n
accordingly.
(C.V.Patil)
Adhoc Judge,
City Civil Court,
Date: 11.04.2022 Gr.Mumbai.
Dictated on: 11.04.2022
Typed on : 13.04.2022
Signed on : 18.04.2022
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
18/04/2022 5.45p.m. Mrs.Jyoti Mane
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
11/04/2022
JUDGEMENT /ORDER signed by P.O. on 18/04/2022
JUDGEMENT /ORDER uploaded on 18/04/2022
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