Final Order 2

Order Details: Copy of Judgment
Pdf Text: SJ 57-2018 in Sum Suit 1101 of 2016 .. J/1 .. Judgment
MHCC010102882016 Presented on : 29.09.2016
Registered on : 19.10.2016
Decided on : 04.03.2026
Duration : 09 Y : 05 M : 05 D
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON
SUMMONS FOR JUDGMENT NO. 57 OF 2018
IN
SUMMARY SUIT NO.1101 OF 2016
Mrs. Vandana Advani,
Aged : 55 years, Occ. : Business,
Indian Inhabitant of Bombay carrying on
Business as a sole proprietress in the name and
Style of Vraksham’s Varkha,
having address at 201, Hammersmith,
Industrial Estate, Sitladevi Temple Road,
Mahim, Mumbai – 400 016.
...Plaintiff.
VERSUS
1. 1. Paradyne Infoservices Pvt. Ltd.
A company registered under Indian Companies
Act, 1956, 53/2476, Radheshyam,
Gandhinagar, Bandra (E), Mumbai – 400 051.
2. Mr. Annand Sarnaaik,
Indian Inhabitant of Bombay,
Adult, Occ. : Not Known
AND
3. Ms. Divvyani Annand Sarnaaik,
Indian Inhabitant of Bombay,
Adult, Occ. : Not known,
Both having their address at :
402, Jairaj CHS Ltd., Opp. Income Tax Bldg.,
Bandra Kurla Complex, Bandra (E),
Mumbai – 400 051.
Suit withdrawn
against defendant
Nos.1 and 4
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4. Messers Glodyne Technoserve Ltd.,
A company registered under Indian Companies
Act, 1956, having its registered address at :
801, Balrama Bldg, Bandra Kurla Complex,
Bandra (E), Mumbai – 400 051. …Defendants.
Appearances:
Adv. Yojana Gandhi a/w.
Adv. Bhargavi Raval
: For plaintiff.
Adv. Lalit Pal a/w
Adv. Nilofar Khan.
: for Defendant Nos.2 & 3.
CORAM : HIS HONOUR JUDGE
N. B. LAVTE, (C.R.No.83).
DATE : 4th March, 2026.
J U D G M E N T
The Summary Suit is filed for recovery of an amount of
Rs.13,00,000/- with 18% p.a. based on Bill of Exchange and cheque. In
the said suit the present SJ is filed. The brief facts of the suit is that :
2. The plaintiff is residing at the address mentioned in the
plaint. The defendant Nos.1 and 4 are companies registered under the
Companies Act, 1956. The defendant Nos.2 and 3 are having their
address mentioned in the plaint. She gave an amount of Rs.7,00,000/-
and Rs.6,00,000/- by account payee cheque Nos.194837 and 089536
dated 04.06.2012 and 16.08.2011 to defendant No.1. On 31.01.2013
and 12.02.2013 the defendant No.1 executed two demand Bills of
Exchange on defendant Nos.2 and 3 of Rs.7,00,000/- and
Rs.6,00,000/-. It was accepted by defendant Nos.2 and 3. The
defendant No.1 paid interest from time to time and renewed both the
Bills of Exchange till 12.11.2013 and 29.11.2013. On 10.07.2013
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defendants paid interest of 125 days i.e till 12.11.2013 by account
payee cheque in respect of Bill of Exchange dated 31.01.2013 and paid
interest of 134 days till 29.11.2013 by account payee cheque in respect
of Bill of Exchange dated 12.02.2013.
3. It is her further case that the defendants deducted TDS
payable on interest. The Bills of Exchange were due for payment on
12.11.2013 and 29.11.2013 and were presented for payment to
defendant Nos.2 and 3 and thereafter to defendant No.1, however, they
were dishonoured. The defendants sought short time to repay the
amount. The defendants gave cheque of Rs.7,00,000/- vide cheque
No.266138 dated 11.11.2013 for Bill of Exchange dated 31.01.2013
and Rs.6,00,000/- vide cheque No.266140 dated 28.11.2013 for Bill of
Exchange dated 12.02.2013 towards repayment. When presented for
encashment, they returned unpaid with remarks ‘insufficient funds’ on
02.12.2013. Legal notice was issued on 05.07.2014 to which false reply
was given. As the amount was not paid, suit came to be filed. In the said
suit present SJ is filed with prayer to make it absolute.
4. After issuing writ of summons, defendants appeared. The
roznama reveals plaintiff filed applications Exh.03 and Exh.04 to
withdraw suit against defendant Nos.4 and 1 which were allowed by
orders dated 23.12.2016 on 10.07.2017. Thereafter, plaintiff filed SJ.
The defendant Nos.2 to 3
(Hereinafter referred to as contesting
defendants) filed their reply and challenged the same on the ground of
maintainability as plaintiff is not a registered money lender, therefore as
per the Bombay Money Lenders Act, 1947 suit is not maintainable. It is
also challenged on the ground that in view of Winding Up Order passed
against defendant No.1, therefore, suit is not maintainable. No Leave
u/Sec.446 and Sec.447 of the Companies Act is obtained.
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5. It is claimed that they did not issue any cheques for paying
interest. They did not accept the Bills of Exchange. The Bills of
Exchange were signed in blank at the insistence of plaintiff and they
never accepted it in their personal capacity. Therefore, the suit against
them is bad for mis-joinder of parties. Their signatures were taken in
blank areas and the signatures in the column of ‘acceptors signature’ are
not theirs, therefore, it be referred to hand writing expert. The legal
notice was duly replied. Hence prayed for an unconditional leave to
defend the suit.
6. The plaintiff filed rejoinder and denied the contents of the
reply/leave to defendant.
7. Heard both sides and gone through the written notes of
argument Exh.07 and Exh.06. So also gone through the original
documents filed alongwith list Exh.08. The original documents are the
Bills of Exchange, two Cheques, Return Memos and true copy of
certificate issued by Bank of Baroda about amount of Rs.13,00,000/- by
cheque debited in favour of defendant No.1. The plaintiff is claiming
that she paid Rs.13,00,000/- by two cheques to defendants and in lieu
of it, defendant No.4 drew the Bill of Exchange which was accepted by
defendant Nos.1 to 3. However, on demand the Bills of Exchange were
dishonoured. The two cheques of Rs.7,00,000/- and Rs.6,00,000/-
issued got dishonoured. Whereas, contesting defendants took defence
that their signatures were obtained on blank Bills of Exchange and they
did not accept the Bills of Exchange.
8. During the course of argument, Adv. Gandhi for plaintiff
submitted that provisions of the Bombay Money Lenders Act, 1947 are
not applicable to Bills of Exchange. She further submitted that in view
of defendant No.4 company being Wound Up by filing an application
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the suit was withdrawn against defendant No.4. Even suit against
defendant No.1 was withdrawn. As regards contesting defendants, she
submitted that being acceptors of Bill of Exchange, suit can proceed
against them and liability can be fastened upon them as borrowers. She
further submitted that the subsequent cheques issued by defendant
No.2 proves liability. Therefore, according to her, contesting defendants
cannot escape the liability as acceptors of Bills of Exchange.
9. Adv. Gandhi further submitted that contesting defendants
are not outrightly denying their signatures nor claiming it to be forged
one, but denying the liability as acceptors. Being acceptors of Bill of
Exchange they are equally liable to pay the amount. The defence raised
being moonshine, therefore, no any triable issues are raised. Therefore,
they are not entitled for conditional or an unconditional leave to
defend. Hence, prayed for making the SJ absolute and decreeing the
suit.
10. Whereas, Adv. Pal for contesting defendants submitted that
once defendant No.4 company is Wound Up and the official liquidator is
not joined as party, therefore, the suit must fail. The Bills of Exchange
were not signed by contesting defendants, but their signatures were
obtained on blank paper which were later on misused as Bills of
Exchange. As they are not acceptors, they are wrongly joined as
defendants. The suit is not maintainable as plaintiff is not a registered
money lender holding valid license. Therefore, according to Adv. Pal as
substantial defence is raised which qualifies the test of triable issues,
therefore, prayed for an unconditional leave to defend the suit.
11. From the oral submissions and written notes of arguments,
the contesting defendants have challenged the suit on multiple grounds.
As regards the maintainability of the suit on the ground of defendant
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No.4 being Wound Up. It is not in dispute that the Hon’ble High Court
by its order dated 28.10.2014 allowed the petition and defendant No.4
was Wound Up. The plaintiff by moving application Exh.03 and Exh.04
withdrew the suit against defendant Nos.1 and 4 which were allowed.
Thus, plaintiff is pursuing her suit against contesting defendants only.
The plaintiffs claimed that being acceptors of Bills of Exchange,
contesting defendants are liable for the amount. Relaince is placed on
three authorities.
12. In
Ashok Mohansingh Bajaj (HUF) vs. Elegant
Pharmaceuticals & Ors., 2002 (2) ALL MR, 242 similar question arose
before the Hon’ble High Court wherein the defendant No.1 company
was declared as sick and proceeding under the BIFR and SICA were
going on. While deciding the issue, the Hon’ble High Court by placing
reliance on Sec.37 of the NI Act held that defendant No.1 was drawer
and defendant No.2 being an acceptor of bill of exchange, is
independently liable as principal debtor u/Sec.37 of the NI Act. Similar
view is taken in
IDBI Trusteeship Services Limited vs. Hub Town
Limited (2017) SCC 568, wherein, the Hon’ble Apex Court had held
that there is no impediment in proceeding with the matter and getting a
decree when a defendant is adjudged insolvent during the pendency of
a commercial suit. Similar view is taken in
Union Bank of India vs.
Ankur Corporation & Ors., decided on 09.11.1992 wherein the Hon’ble
High Court held that suit is maintainable against acceptor of Bill of
Exchange.
13. No any counter authorities are filed by contesting
defendants to show suit against the acceptor of Bill of Exchange is not
maintainable, if the drawer company is Wound Up. If the ratio of
authorities cited above are taken into consideration, then defence of
contesting defendants that they are not liable as acceptors of Bills of
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Exchange is devoid of merit. As regards the second defence of lack of
money lending licence, first of all, the provisions of Bombay Money
Lenders Act, 1947 are not applicable to Bill of Exchange and the same is
excluded from the definition of loan. To attract the provision, it must be
proved plaintiff is doing business of money lending which is missing. At
the cost of repetition, contesting defendants are not outrightly denying
their signatures on the Bills of Exchange nor on the cheques. No any
defence of forgery of signatures is claimed by them. Therefore, being
acceptors of Bills of Exchange and issuing the cheques, contesting
defendants cannot escape the liability of the amount and are liable as
debtor.
14. On the point of contesting defendants raising triable issues
indicating they have fair and reasonable defence to grant them
conditional or unconditional leave to defend the suit, useful reference to
para.17 of judgment in
IDBI TRUSTEESHIP SERVICES LIMITED VS
HUBTOWN LTD (2017) 1 SCC 568, can be made wherein the Hon’ble
Apex Court observed as follows:
17.1 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.
17.2 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.
17.3 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
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that such triable issues are not shut out by unduly severe orders as
to deposit or security.
17.4 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.
17.5 If the defendant has no substantial defence and/or raises
no genuine triable issues, and the court finds such defence to be
frivolous or vexatious, then leave to defend the suit shall be
refused, and the plaintiff is entitled to judgment forthwith.
15. If the proposition of law laid down in IDBI (supra) more
particularly observation in 17.5 which is again reproduced, “If the
defendant has no substantial defence and/or raises no genuine triable
issues, and the court finds such defence to be frivolous or vexatious,
then leave to defend the suit shall be refused, and the plaintiff is
entitled to judgment forthwith” and the facts of the present case in hand
are taken into consideration and my detail observation that contesting
defendants not denying their signatures on the Bill of Exchange and no
whisper about the cheque which was dishonoured, hence, no any
substantial defence is raised by them to grant then conditional or an
unconditional leave to defend the suit. The suit against defendant No.1
and 4 are withdrawn. The contesting defendants are acceptors of Bill of
Exchange. The cheque is issued by defendant No.2 which on
presentation returned back for lack of funds. If that being so, then the
SJ is liable to made absolute against contesting defendants only by
decreeing the suit.
16. Thus considering the contentions raised by the contesting
defendants, I am of the view that no any substantial defence is raised by
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them to qualify the test of triable issue. Therefore, contesting
defendants are not entitled for conditional or an unconditional leave to
defend the suit. The suit against defendant Nos.1 and 4 is withdrawn.
In view of the SJ being made absolute, the suit deserves to be decreed.
As regards the rate of interest, in the Bill of Exchange no any rate of
interest is mentioned and the said column is blank. However, plaintiff is
claiming 18% p.a. There is no any pleading that the transaction was
commercial in nature. Therefore, I am of the view that interest of 9%
p.a would be reasonable rate of interest instead of 18% p.a. Hence, I
proceed to pass following order.
O R D E R
1. The Summons for Judgment No.57 of 2018 in Summary Suit
No.1101 of 2016 is made absolute against defendant Nos.2
and 3 only.
2. The Summary Suit No.1101 of 2016 stands decreed with costs
against defendant Nos.2 and 3 only.
3. The defendant Nos.2 and 3 are jointly and severally directed to
pay to plaintiff an amount of Rs.13,00,000/- (Rupees Thirteen
Lacs Only) with 9% p.a from the date of filing of the suit till
realization.
4. The decree be drawn up accordingly.
5. The Record and Proceeding be sent to Record Department.
( N. B. Lavte )
Judge, (C.R.No.83)
Dt.:04.03.2026 City Civil Court, Mazgaon,
MUMBAI
Dictated on : 04.03.2026
Transcribed on : 06.03.2026
checked on : 07.03.2026
Signed on : 07.03.2026
( N. B. Lavte )
Judge, (C.R.No.83)
City Civil Court, Mazgaon,
MUMBAI.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
07.03.2026 at 5.45p.m.
UPLOAD DATE AND TIME (MANISHA SRINATH)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Shri. N. B. Lavte
(COURT ROOM NO.83)
Date of pronouncement of
judgment/order
04.03.2026
Judgment/order signed by P.O. on 07.03.2026
Judgment/order uploaded 07.03.2026
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