Final Order 1

Order Details: Other
Pdf Text: MHCC010025582018 Presented on 20/02/2018
Registered on 20/02/2018
Decided on 21/09/2024
Duration 06Y: 07M: 01D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 65 OF 2018
IN
SUMMARY SUIT NO.605 of 2017
Ashok Mohansingh Bajaj, ]
Adult, Indian Inhabitant of Bombay, ]
aged 62 years, the Karta and Manager of ]
Ashok Bajaj H. U. F., carrying on business ]
in the name and style of M/s. Adarsh Associates ]
a proprietary concern as its sole proprietor at 207, ]
Niranjan, 99, Marine Drive, Mumbai-400 002. ]...Plaintiff
Versus
1. Milestone Interactive Private Limited, ]
a company registered under the Companies ]
Act, 1956, carrying on business at 702, ]
Supreme Chambers, off. Veera Desai Road, ]
Andheri (West), Mumbai -400 053 and at ]
Windermere, Bldg. No.1B/125, Near Oshiwara ]
Police Station, New Link Road, Andheri (West), ]
Mumbai-400 053. ]
2. Jayont R. Sharma, ]
Adult, Indian Inhabitant of Bombay, ]
age and full name not known, ]
residing and carrying on business at ]
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Windermere, Bldg. No.1B/125, ]
Near Oshiwara Police Station, New Line Road, ]
Andheri (West), Mumbai-400 053. ]
3. Manisha J. Sharma, ]
Adult, Indian Inhabitant of Bombay, ]
age and full name not known, ]
residing and carrying on ]
business at Windermere, Bldg. No.1B/125, ]
Near Oshiwara Police Station, New Line Road, ]
Andheri (West), Mumbai-400 053. ]...Defendants
Appearance:-
Ld. Advocate Kavita Lalwani for the plaintiff.
Defendants absent.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 21/09/2024.
ORDER
( Dictated and pronounced in open Court)
01] The plaintiff has filed this summons for judgment against
defendants on 07/02/2018. Defendants No.2 and 3 have filed their
reply to the summons for judgment and resisted it and prayed for
unconditional leave to defend the suit. Plaintiff has filed rejoinder to the
reply of defendants No. 2 and 3.
02] Plaintiff had filed summons for judgment against
defendants however, in view of pursis at Exh. 7 suit against defendant
No. 1 is withdrawn. Therefore, summons for judgment is proceeded
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only against defendants No. 2 and 3.
03] As per the plaintiff, he is an individual carrying on business
in the name and style of M/s. Finvest Corporation. Defendant No. 1 is a
company and defendants No. 2 and 3 are partners of the said company.
Defendant No. 1 has borrowed an amount of Rs. 18,00,000/- from the
plaintiff and executed bill of exchange on 25/10/2014. Defendants
No. 2 and 3 have singed bill of exchange as acceptors. Defendant No. 1
has made part payment of Rs.1,45,800/- towards interest after
deducting 10% TDS of Rs. 16,200/-. Defendant No. 1 has again made
part payment of Rs. 2,25,000/-. Thereafter, defendants made payment
of Rs. 37,585/- and Rs. 13,501/- towards interest. Further, towards part
payment of Rs. 6,75,000/- defendants had issued three cheques which
were dishonoured for reason insufficient funds and stop payment. On
09/03/2015, plaintiff presented bill of exchange for an amount of
Rs. 15,75,000/- to the defendants, as they failed to pay the amount, it
was dishonoured. Therefore, plaintiff issued legal notice dated
26/03/2015 and called upon defendants to pay outstanding amount
along with interest @ 18% p.a. It is the contention of the plaintiff that
defendants No. 2 and 3 have filed leave to defend and tried to raise
objection that plaintiff is money lender and therefore, as per provision
of Money Lending Act suit is barred. Plaintiff has advanced amount by
negotiable instruments therefore, it does not fall under definition of
money lending. It is submitted that plaintiff is not a money lender and
defendants has to prove the said fact by adducing evidence. Further,
defence of the defendants is that they have not signed bill of exchange
in their personal capacity and therefore, they are not liable to pay
outstanding amount. However, as per section 37 of Negotiable Act,
acceptors are also liable as a principle to repay the amount of bill of
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exchange. Defendants No. 2 and 3 are independently liable to repay
amount to plaintiff as acceptor. Further, suit is filed on the basis of bill
of exchange and it maintainable and to support said contention plaintiff
has relied on observations laid down in Mour Marbles Industries Pvt.
Ltd. vs. Motilal Laxmichand Salecha HUF and others, in Commercial
Appeal (Lodge) No. 248/2018. It is also the contention of the
defendants that defendant No.1 is went into liquidation. However,
plaintiff has withdrawn the suit against defendant No. 1 therefore, there
is no need to stay the suit against all defendants. Ashok Bajaj, Rajkumar
Bajaj and Vivek Bajaj are separate persons and have advanced amount
to defendants from their separate account. They all are Karta of their
respective HUF families. It is also contention of the defendants that bill
of exchange is not duly stamped as per Section 34 of Maharashtra
Stamp Act. However, as per Section 53(a) of Indian Stamp Act, 1899
requires one Rupee Revenue stamp. Therefore, it is correctly stamped.
Thus, defendants have failed to raise substantial defence and also not
raised triable issues. Hence, summons for judgment may be allowed.
04] On the other hand, it is submitted by the defendants No. 2
and 3 that they have not signed bill of exchange in their personal
capacity. The plaintiff has not presented Bill of Exchange as per
provisions of Section 64, 99 and 100 of N. I. Act. The defendant No. 1
has borrowed the amount and has paid interest thereon and made the
part payment. Therefore, these defendants are not liable to pay
outstanding amount to the plaintiff. Further, the plaintiff is money
lender as he has lent money to the various parties and therefore, this
suit is barred u/s. 13(1) of Maharashtra Money Lending (Regulations)
Act, 2014. Defendants No. 2 and 3 have relied on ratio laid down in
Fauzan Sheikh vs. State of Maharashtra, wherein it is observed by High
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Court that, '
person who advances money at interest on the basis of
negotiable instruments other than promissory note or on the basis of
hundi is not covered under the exclusion of clause (j) and (k) of Section
2(13) of Maharashtra Money Lending (Regulation) Act, 2014.' It is also
submitted that ratio laid down in Mour Marbles Industries Pvt. Ltd. vs.
Motilal Laxmichand Salecha HUF & Ors. is not applicable to the facts of
present case. The amount advance to defendant No. 1 is not only
incident, it has advanced amount to various persons. Further, it is
submitted that the bill of exchange is not duly stamped as per Section
34 of Maharashtra Stamp Act, 1058 therefore, it cannot be read in
evidence. It is also submitted that amount is advanced by plaintiff to
defendant No. 1 company and even, interest is also paid by defendant
No. 1. Therefore, defendant No. 1 is liable to repay said amount and
defendants No. 2 and 3 are not concerned with said transaction in
personal capacity. Further, defendant No. 1 is wound up in view of
Company Petition No. 531/2015 and No. 532/2015 hence, suit can not
be proceeded against defendants in view of Section 446 of Companies
Act. Further, it is submitted that these are the triable issues and requires
adjudication. Therefore, defendants No.2 and 3 are entitled to
unconditional leave to defend the suit. Hence, summons for judgment
may be dismissed.
05] Perused summons for judgment, reply of the defendants
No. 2 and 3, rejoinder to the same filed by plaintiff and documents on
record. Heard both the parties. I have gone through case laws relied on
by both the parties. On perusing contentions of both the parties, it
appears that plaintiff has lent an amount of Rs.18,00,000/- to
defendant No. 1 on 25/10/2014. Defendant No. 1 has executed bill of
exchange at Exh. 6/1. Further, it appears that defendants No. 2 and 3
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have signed it as acceptors. Even, defendants No. 2 and 3 have not
denied the said fact. The only contention of the said defendants is that
they have not signed it in their personal capacity. Admittedly, defendant
No. 1 is went into the liquidation.
06] The defence raised by defendants No.2 and 3 is that
defendant No.1 went into the liquidation therefore, suit has to be stayed
against defendants as per Section 446 of Companies Act. It is pertinent
to note that on perusing said provision, it appears that if company is
wound up or official liquidator is appointed then legal proceeding
cannot be filed or if it is pending it cannot be proceeded against the
company. There is nothing on record to show that even proceeding
against directors is to be stayed. Moreover, plaintiff has withdrawn suit
against the defendant No. 1 in view of pursis Exh.7. Therefore, question
of staying the suit against the defendant No. 1 does not arise.
07] Further, defence of the defendants No. 2 and 3 is that suit
is not maintainable in view of section 13(1) of Maharashtra Money
Lending (Regulations) Act, 2014, plaintiff is money lender. It is
pertinent to note that defendants have given list in their written notes
of argument to show that plaintiff has advanced loan to the various
persons. Merely giving the list is not sufficient, it is settled law that
defendants has to prove the said facts by adducing evidence. Therefore,
though, defendants No. 2 and 3 has raised said triable issue, it cannot
be considered at this stage. Therefore, ratio laid own in case laws cited
supra on behalf of both parties are not helpful at this stage. It can be
considered after adducing evidence on merit. Further, it is the
contention of the said defendants that they have not signed the bill of
exchange in their personal capacity however, as per Section 37 of N. I.
Act, acceptor can hold liable to repay the amount of bill of exchange.
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Further, defendants have raised issue of bill of exchange is not
sufficiently stamped as per Section 34 of Maharashtra Stamps Act
therefore, it cannot be read in evidence. It is pertinent to note that in
view of submission of counsel for plaintiff as per Section 53a of Indian
Stamp Act bill of exchange requires one rupee stamp. On perusing bill
of exchange filed by plaintiff at Exh. 6/1, it has revenue stamp. As per
Article 45 of Maharashtra Stamp Act if payment is otherwise on demand
stamp duty is required. Therefore, I am of the view that there is no
substance in the contention of the defendant that bill of exchange is not
sufficiently stamped.
08] It is pertinent to note that it is not disputed that defendant
No.1 has borrowed amount from the plaintiff and executed bill of
exchange. As discussed above, even defendants No. 2 and 3 have signed
as a acceptor is not disputed. Therefore, it appears defendants No. 2
and 3 have not raised any substantial defence however, raised the
triable issues that they have not signed in their personal capacity and
plaintiff is money lender as well as bill of exchange was not presented
properly as provisions of N. I. Act which needs adjudication. Therefore,
I am of the view that it is necessary to give opportunity to the
defendants to defend the suit however, at the same time it would be just
and proper to grant conditional leave to defend the suit. Hence, I
proceed to pass following order.
ORDER
1) Summons for judgment No.65/2018 in Summary Suit
No. 605/2017 is disposed off as follows:
(a) Leave to defend the suit is granted to the defendants No. 2
and 3 subject to condition that they shall deposit 50% of principal
amount within 60 days from the date of this order.
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(b) The defendants No. 2 and 3 will be at liberty to file their
written statement on record within 30 days after depositing
amount.
2) After depositing amount by said defendants, it be deposited in
fixed deposits in any Nationalized bank as per law.
3) Summons for judgment No.65/2018 is dismissed against
defendant No. 1.
4) No order as to costs.
5) Summons for judgment No.65/2018 is disposed off
accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date: 21/09/2024 Court Room No.81
Dictated on : 21/09/2024
Corrected & signed on : 03/10/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
03/10/2024 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 21/09/2024
JUDGMENT/ORDER signed by P. O. on 03/10/2024
JUDGMENT/ORDER uploaded on 03/10/2024
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