Order 1

Order Details: Copy of Judgment
Pdf Text: SJ 60-2018 in Sum Suit 1045 of 2016 .. J/1 .. Judgment
MHCC010095292016 Presented on : 08.09.2016
Registered on : 06.10.2016
Decided on : 04.03.2026
Duration : 09 Y : 05 M : 26 D
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON
SUMMONS FOR JUDGMENT NO. 60 OF 2018
IN
SUMMARY SUIT NO.1045 OF 2016
Mr. Ashok Pyarelal Sah,
Aged : 65 years, Indian Inhabitant of Bombay,
Karta and Manager of Ashok Sah (HUF),
having address at 601-D, Neelkanth,
98 Marine Drive, Mumbai – 400 002.
...Plaintiff.
VERSUS
1. Glodyne Technoserve Ltd.,
A company registered under Indian Companies
Act, 1956, having its registered address at :
801, Balrama Building Bandra Kurla Complex,
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Suit withdrawn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
No.1
…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.
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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.20,00,000/- 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 dispute in hand
are :
The plaintiff is Karta of Ashok Sah (HUF). The defendant No.1 is
a company registered under the Companies Act, 1956. The defendant
Nos.2 and 3 are directors. He gave an amount of Rs.20,00,000/- by
account payee cheque No.610600 dated 09.02.2012 to defendants. On
12.02.2013 defendant No.1 executed demand Bill of Exchange of
Rs.20,00,000/-. It was accepted by defendant Nos.2 and 3. The
defendant No.1 paid interest from time to time and renewed the Bill of
Exchange till 20.12.2013. On 26.07.2013 defendants paid interest of
147 days i.e till 20.12.2013 by account payee cheque. The defendants
deducted TDS payable on interest.
2. It is their further case that the Bill of Exchange was due for
payment on 20.12.2013 and when presented for payment, it was
dishonoured. The defendants sought short time to repay the amount.
The defendants gave cheque of Rs.20,00,000/- vide cheque No.039486
dated 19.12.2013 towards repayment. When presented for
encashment, it returned unpaid with remark ‘insufficient funds’ on
21.12.2013. Legal notice was issued on 15.10.2014 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.
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3. Writ of summons were issued. The defendant Nos.2 and 3
appeared (hereinafter referred to as contesting defendants). The
plaintiff filed an application Exh.03 to withdraw suit against defendant
No.1 which was allowed vide order dt. 07.03.2017. Thereafter, plaintiff
filed SJ to which contesting defendants filed their reply/leave to defend.
The SJ is challenged on the ground of maintainability as plaintiff is not
a registered money lender, therefore as per the Bombay Money Lenders
Act, 1947, the suit is not maintainable. It is also claimed that in view of
defendant No.1 being Wound Up by an Order dated 16.04.2015,
therefore, the suit is not maintainable. The official liquidator is not
made party. Leave u/Sec.446 and Sec.447 of the Companies Act is not
obtained before filing the suit.
4. It is their further defence that they did not issue any
cheques for paying interest. They did not accept the Bill of Exchange.
The Bill of Exchange was 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.
Hence prayed for an unconditional leave to defend the suit.
5. The plaintiff filed rejoinder and denied the contents of the
reply/leave to defendant.
6. Heard both the sides and gone through the written notes of
argument Exh.05 and Exh.07. So also gone through the original
documents filed alongwith list Exh.08. The original documents are the
Bill of Exchange, Cheque, Return Memo and true copy of certificate
issued by Bank of Baroda about amount of Rs.20,00,000- by cheque
debited in favour of defendant No.1. The plaintiff is claiming that he
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paid Rs.20,00,000/- by cheque to defendants and in lieu of it, defendant
No.1 drew the Bill of Exchange which was accepted by contesting
defendants. On demand the Bill of Exchange was dishonoured. The
defendants issued cheque of Rs.20,00,000/- which on presentation got
dishonoured. Whereas, the contesting defendants took defence that
their signatures were obtained on blank Bill of Exchange and they did
not accept the Bill of Exchange.
7. During the course of argument, Adv. Gandhi for plaintiff
submitted that provisions of the Bombay Money Lenders Act, 1947 are
not applicable to Bill of Exchange. She further submitted that in view of
the defendant No.1 company being Wound Up by filing an application
they withdraw the suit against defendant No.1 which was allowed. As
regards contesting defendants, she submitted that being directors and
acceptors of Bill of Exchange, the suit can proceed against them. The
subsequent cheque issued by defendant No.2 proves the liability.
Therefore, according to her, contesting defendants cannot escape the
liability as acceptors of Bill of Exchange.
8. 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 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.
9. Whereas, Adv. Pal for contesting defendants submitted that
once defendant No.1 company is Wound Up and the official liquidator is
appointed and he is not joined as party, therefore, the suit must fail. The
Bill of Exchange is not signed by contesting defendants, but their
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signatures were obtained on blank paper which were later on misused
as Bill of Exchange. As they are not acceptors, they are wrongly joined
as defendants. The suit is not maintainable as plaintiff is not having
money lending license. Hence, Adv. Pal submitted that as substantial
defence is raised which qualifies the test of triable issues, therefore,
prayed for an unconditional leave to defend the suit.
10. 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
No.1 being Wound Up. It is not in dispute that the Hon’ble High Court
by its order dated 06.04.2015 allowed the petition and defendant No.1
was Wound Up. The plaintiff by moving an application Exh.03 prayed
for withdrawing the suit against defendant No.1. By an order dated
07.03.2017 the application Exh.03 was allowed. Thus, the suit
remained against contesting defendants only who were directors at that
time. The plaintiffs claimed that being acceptors of Bill of Exchange,
contesting defendants are liable for the amount to buttress the
submission reliance is placed on three authorities.
11. 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.
12. 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
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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. No any
counter authorities are filed by the contesting defendants on this point. If
the ratio of authorities cited are taken into consideration, then defence of
contesting defendants that they are not liable as acceptors of Bill of Exchange
is devoid of merit.
13. 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 provisions, it should be proved that plaintiff is in the
business of doing money lending which is missing. Therefore, the said defence
is devoid of any merit. At the cost of repetition, the contesting defendants are
not outrightly denying their signatures on the Bill of Exchange nor on the
cheque. The cheque on presentation got dishonoured and return memo is
filed on record. No any defence of forgery of signatures is claimed by them.
Therefore, being acceptors of Bill of Exchange and issuing the cheque,
contesting defendants cannot escape the liability of the amount.
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,
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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 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 above that
contesting defendants not denying their signatures on the Bill of
Exchange and no whisper about the cheque which was dishonoured.
Hence, defendants failed to raise any triable issues indicating they have
fair and reasonable defence to grant them conditional or unconditional
leave to defend the suit. The suit against defendant No.1 is withdrawn. The
contesting defendants are acceptors of Bill of Exchange. The cheque is issued
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by defendant No.2 returned back for lack of funds. If that being so, then,
plaintiff is entitled for judgment and the SJ is liable to made absolute against
contesting defendants only.
16. In view of the SJ being made absolute, the suit deserves to
be decreed with costs. 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.60 of 2018 in Summary Suit
No.1045 of 2016 is made absolute against defendant Nos.2
and 3 only.
2. The Summary Suit No.1045 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.20,00,000/- (Rupees Twenty
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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