Order 1

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MHCC010025552018
IN THE COURT OF JUDGE CITY CIVIL AT GREATER MUMBAI
SUMMONS FOR JUDGMENT NO. 63 OF 2018
IN
SUMMARY SUIT NO. 812 OF 2017
Rajkumar Mohansing Bajaj, Adult, Indian
Inhabitant of Bombay, aged 53 years, the
Karta and Manager of Rajkumar Bajaj
H.U.F., carrying on business in the same and
style of M/s. BLISS Enterprise, a proprietory
concern as its sole Proprietor at 602F,
Neelkanth, 98, Marine Drive, Mumbai- 400
002.
...Plaintiff
VERSUS
1. Trium Logistics India Pvt. Ltd., a
company Registered under the Companies
Act, 1956, carrying on business at Pujit
Plaza, Office No. 105, 1st Floor, Plot No.67,
Sector-11, C.B.D.Belapur, Navi Mumbai-
400 614 and at c/o. PULIKOT SAJITH
MENON, E S/5 Jaitaramani CHS., Bangur
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Nagar, Goregaon (W), Mumbai-400 104.
2. Pulikot Sajith Menon, Adult, Indian
Inhabitant of Bombay, are not known,
residing and carrying on business at E S/5,
Jaitaramani CHS, Bangur Nagar, Goregaon
(W), Mumbai 400 104.
...Defendants
Appearance :
Ld. Adv. Ms. Kavita Lalwani for plaintiff.
Ld. Adv. Mr. Santosh Kori for defendant Nos. 1 and 2.
CORAM : DR. S. D. TAWSHIKAR
(Court Room No.61)
DATE : 09-01-2023.
ORAL ORDER
(Dictated and pronounced in Open Court)
Plaintiff has taken out present Summons for
Judgment as per Sub rule (4) of Rule 3 of Order XXXVII of Code of Civil
Procedure, 1908 (hereinafter referred as ‘CPC’ for short) and thereby
claims Judgment against defendants for recovery of principal amount of
Rs. 14,49,000/- along with interest thereon at the rate of 18 % p.a.
Defendant No.2 has filed their reply and sought unconditional leave to
defend.
Plaintiff’s case these are as under-
2. Plaintiff contends that he has paid an amount of
Rs.12,00,000/- to the defendant No.1 on 18.06.2015 through a cheque.
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Against the same, defendant No.1 had issued a bill of exchange of a like
amount on the same date in favour of the plaintiff and which was
executed by the defendant No.2, as Director of defendant No.1. It is
further contended that towards the part payment of the said amount
four cheques of Rs. 1,50,000/- each were issued in favour of the
plaintiff. However, same were dishonoured due to insufficiency of the
funds.
3. Plaintiff demanded the amount against the bills of exchange
which was not paid by the defendant No.2. Therefore, plaintiff issued a
notice dated 26.04.2016 through advocate. Despite the notice,
defendants failed to repay the amount, hence, the present suit.
4. Plaintiff further contended that there is no defence to the
defendants and therefore, summons for judgment be made absolute.
5. Defendant No.1 though served with the writ of summons
failed to cause appearance. Hence the suit proceeded ex-parte.
Defendant No.2 appeared and contested the summons for judgment by
filing detailed affidavit-in-reply.
6. Defendant No.2 contends that no amount was ever received
by the defendant No.2 from plaintiff and the filing of the present
summary suit is not sustainable. It is contended that the defendant No.2
had never signed the bills of exchange in favour of the plaintiff and
therefore, defendant No.2 from plaintiff is not liable to pay.
7. It is further contended that defendant No.2 has repaid the full
amount of the loan borrowed from the plaintiff. Plaintiff is doing illegal
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money lending business and therefore, defendant No.2 is not liable to
pay anything to the plaintiff. Defendant No.2 ultimately contends that
there are triable issues involved in the matter which requires
unconditional leave.
8. Heard Smt. Kavita Lalwani Ld. Advocate for the plaintiff. She
submits that the amount of Rs.12,00,000/- is paid to defendant No. 2
through cheques. She has also placed on record copy of account
statement, which reveals the cheque is cleared on 20.06.2015 and as
such amount of Rs.12,00,000/- is received by the defendant No.1. She
further contended that the suit is based on bills of exchange and same is
maintainable in law. On this points she relies on authority of Hon’ble
Bombay High Court in the case of Sreyas Naval Raghuwanshi V/s. Aar-
Tax India and Ors. and Mukesh Kumar V/s. Bhopal Singh & Ors. AIR
2009 Rajasthan 7.
9. Smt. Lalwani further submits that the defence tried to be
raised by defendant No.2 is false and bogus. There is nothing placed on
record to show the repayment of the loan. She ultimately claims that
summons for judgment be made absolute.
10.
Per contra, Mr. Santosh Kori, the Ld. Advocate for defendant
No.2, vehemently submits that on the date of issuance of bills of
exchange i.e on 18.06.2015, defendant No.2 was not the Director of
defendant No.1 Company. Therefore, there is no question of his issuing
bills of exchange. He further submits that the bills of exchange placed
on record by the plaintiff do not bear signature of the defendant No.2.
Though the plaintiff has pleaded about dishonour of four cheques,
however, the copies of the cheque, cheque dishonour memo, etc. are
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not placed on record. Plaintiff is required to prove the alleged facts of
lending of money and legality of bills of exchange. Therefore, defendant
No.2 deserves unconditional leave to defend.
11. Heard both the sides. Perused documents placed on
record by either side. Following points arise for my determination. I
have recorded findings thereon along with reasons, as under :-
Sr. No. Points Findings
1. Whether defendant is entitled for
leave to defend ?
If yes, conditional or unconditional?
Unconditional leave to
defend is granted to the
defendants.
2. What order ? SJ is rejected.
REASONS
As to Point No.1-
12. The law on the point of summons for judgment viz-a-viz leave
to defend is no more
res integra in the light of the judgment delivered
by the Hon’ble Apex Court in the case of IDBI Trusteeship Services
Limited Vs. Hubtown Limited, (2017) 1 SCC 568. Hon’ble Apex Court
has dealt with various situation wherein leave to defend can be granted
or refused. The Hon’ble Court in Para No.17 has laid down certain
guidelines to be considered while granting/refusing to leave to defend.
Those are as under-
“17. Accordingly, the principles stated in para 8 of
Mechelec case will now stand superseded, given the
amendment of Order 37 Rule 3 and the binding decision of
four judges in Milkhiram case, as follows:
17.1. If the defendant satisfies the court that he has a
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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 indicting 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 defend 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
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forthwith.
17.6 If any part of the amount claimed by the plaintiff is
admitted by the defendant to be due from him, leave to
defend the suit, (even if triable issues or a substantial defence
is raised), shall not be granted unless the amount so admitted
to be due is deposited by the defendant in court.”
13. Plaintiff has placed on record the account statement which
shows that an amount of Rs.12,00,000/- is transferred on the Bank
Account of defendant No.1 on 20.06.2015. Therefore, the contention of
the plaintiff about payment to the defendant No.2 through cheque
dated 18.06.2015 has got buttressed. The original bill of exchange
placed on record shows that defendant No.1 has issued the bill of
exchange of Rs.12,00,000/- on 18.06.2015 in favour of the plaintiff.
Defendant No.2 Mr. Pulikot Menon has accepted the bill of exchange
drawn by defendant No.1. Though the defendant No.2 denies issuance
of the bill of exchange, however, presumption carved under section 118
of the Negotiable Instruments Act, favours the case of the plaintiff.
Apart from the oral denial there is nothing placed on record to boost
contentions that bills of exchange was not at all issued by defendant
No.2 or that bills of exchange is false and fabricated. There ought to
have something more on record than mere denial. The contention of
defendants about non issuance of bills of exchange,
prima facie is not
acceptable.
14. It needs to be noted that Ld. Advocate for the defendant No.2
though submits that defendant No.2 was not the Director of the
defendant No.1 Company on the date of alleged payment ie.
18.06.2015, however, nothing is placed on record to boost this
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contention. Further surprising enough this submission does not find
place in affidavit-in-reply filed by the defendant No.2. Therefore, these
contentions cannot be appreciated without the ground raised in the
affidavit in reply.
15. It is further needs to be noted that at one breath defendant
No.2 denies receipt of Rs.12,00,000/- from the plaintiff, and in another
he contends that amount of loan received from the plaintiff is entirely
repaid. This itself is sufficient to show the vagueness of contentions
raised by the defendant No.2. Thus, I find that there is no genuine or
bonafide defence available to the defendant No.2. However, so as to
afford one opportunity to defend the suit, I find that this would be the
fit case to grant leave defend subject to the condition of depositing the
entire principal amount as a security. That would be in tune with
Guideline No. 17.4 in case of IDBI Trusteeship (supra) of Hon’ble Apex
Court. Hence, I answer point No.1 accordingly.
As to Point No.2-
16. In view of the above, I hold that defendant No.2 is entitled for
conditional leave to defend. Consequently, Summons for Judgment is
bound to be dismissed.
17. The observations in this order are based on the
prima facie
material and are without prejudice to the either side during the course
of trial. Hence, in answer to Point No.2, I pass the following order.
ORDER
1. Summons for Judgment No.63 of 2018 stands rejected.
2. Defendant No.2 is permitted to defend the suit subject to his
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depositing an amount of Rs.12,00,000/- (Rs. Twelve Lakhs
Only) before this court within next six weeks from the
date of this order.
3. On depositing the said amount, defendant No.2 is at liberty to
file the Written Statement within next four weeks from the
date of depositing the amount.
4. The amount, if so deposited be invested in Fixed deposit as
per the rules, until further orders.
5. Summons for Judgment No.63 of 2018 is disposed of
accordingly.
6. Cost in cause.
(Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Date: 09-01-2023. Court Room No.61
Dictated on : 09-01-2023
Transcribed on : 10-01-2023
corrected on : 11-01-2023
Signed on : 12-01-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNEDJUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
12-01-2023 at 5.45p.m. Ms. K.M.Rana
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
09-01-2023
JUDGMENT/ORDER signed by P. O. on 12.01.2023
JUDGMENT/ORDER uploaded on 12.01.2023
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