Final Order 1

Order Details: Other
Pdf Text: MHCC010024762020
CNR NO. MHCC010024762020
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.38 OF 2020
SUMMARY SUIT NO.1201 OF 2017
Mr. Mahesh A. Kundani ....Plaintiff.
V/s.
Mr. Rajeshkumar S. Mishra Proprietor of
M/s. Shiv Ganesh Traders.
....Defendant.
Appearances:
Ld. Ashutosh Shukla for plaintiff.
Ld. Adv. Nikita More along with S.G. Shirshat for defendant.	1.
CORAM : HER HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 13th January, 2023
ORDER
1. The present Summons for Judgment is taken out by the
plaintiff for recovery of the amount.
2. The plaintiff is known to defendant as both of them are
residing in the same vicinity. In the month of January, 2016, the
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defendant approached the plaintiff and represented that he is facing
financial constraint in his business and requested him to provide
financial assistantance to the tune of Rs.10,00,000/. As the plaintiff
was not having sufficient amount, he pledged his gold ornaments with
the Bank and advanced an amount of Rs.8,75,000/ to the defendant's
proprietorship firm through cheque dated 27.01.2016 in favour of
defendant. Again plaintiff advanced sum of Rs.1,00,000/ to the
defendant and paid Rs.25,000/ in cash. The defendant issued two
cheques dated 25.09.2016 to the plaintiff for amount of Rs.5,00,000/
each. The said cheques on presentation were dishonoured. The
plaintiff issued legal notice to the defendant but the defendant failed to
comply the same. The plaintiff therefore, filed the present suit. The
plaintiff submitted that no valid defence has been raised by the
defendant and therefore, Summons for Judgment be made absolute.
3. The defendant filed reply to the Summons for Judgment/
application for leave to defend. The defendant denied each and every
contention of plaintiff. The defendant submitted that the suit is based
upon false facts and documents and is required to be dismissed. The
plaintiff had never given any loan to the defendant. The defendant is
not a proprietor of M/s. Shivganesh Traders. The said cheque / cash
amount was never received to the proprietory firm. The cheques of
defendants were missing and the handwriting on the same is not of the
defendant. The advocate for defendant submitted that the defendant
have sufficient defence as he had not received any amount and was not
liable to pay anything to the plaintiff and hence unconditional leave be
granted in favour of defendant.
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4. Heard the argument advanced by Learned Advocate for
plaintiff and defendant.
5. The Learned advocate for plaintiff relied upon
following citations:
1. 2018 DgLaw(Bom)115 High Court Bombay
in the case of Mour Marbles Industries Pvt.
Ltd Vs. Motilal Laxmichand Salecha HUF,
dated 11.06.2018.
2. In the High Court of Judicature at Bombay
Civil Appellate Jurisdiction Writ Petition
No.12037 of 2015, in the case of Lawrence
Crasta Vs. Vasant Upendra Kamat, dated
05.12.2015.
I have carefully gone through the observations laid down in
the ruling cited supra.
6. The plaintiff filed the suit for recovery of the alleged
friendly loan given to the defendant. The defendant further denied all
the contentions of the plaintiff. Considering the nature of the defence
raised by the defendant, it would be appropriate to decide the same on
merits.
7. As per the settled principle of law leave to defend can be
granted unconditionally in cases where the defendant satisfies the Court
that he has a substantial defence and there is likelihood to succeed.
Also in order to provide a fair and reasonable opportunity to the
defendant to defend himself, it is necessary to give leave to defend to
the defendant although a positively good defence is not raised. As per
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the observations made in the ruling cited supra, leave to defend can
also be granted subject to the condition imposed upon the defendant. It
seems that the issues raised by the defendant will require trial and also
in order to adjudicate the matter on merits, it would be appropriate to
grant leave to defend to the defendant. The contention raised by both
the parties will require evidence on merits and therefore, it would be
appropriate to grant leave to defend to the defendant.
8. Considering the nature of the defence in order to secure the
interest of the plaintiff it would be appropriate to grant conditional
leave to defendant to defend suit. I, therefore, proceed to pass the
following order:
ORDER
1. Conditional leave is granted to defendant to defend the suit.
2. The defendant shall deposit an amount of Rs.5,00,000/ to be
paid to the plaintiff within 2 months from date of this order.
3. The defendant after payment of the amount of Rs.5,00,000/
will be at liberty to file written statement on record.
4. The Summons for Judgment No.38 of 2020 is disposed off
accordingly.
5. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 13012023 City Civil Court, Gr. MUMBAI
Dictated on : 13012023
Transcribed on : 16012023
checked on : 16012023
Signed on : 16012023
( 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”
16.01.2023 at 05.50 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
13.01.2023
Judgment/order signed by P.O. on 16.01.2023
Judgment/order uploaded on 16.01.2023
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