Final Order 1

Order Details: Other
Pdf Text: MHCC010025742020 Presented on 29/02/2020
Registered on 29/02/2020
Decided on 19/03/2025
Duration 05y/00m/19d
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 39 OF 2020
IN
SUMMARY SUIT NO. 117 OF 2020
Ashok Champalal Jain ]
An adult Indian Inhabitant ]
Trading in the name and style and as ]
Proprietor M/s. SANJAYLEEN TEXTILE ]
INDUSTRIES (INDIA) having address now ]
at 316, Swadeshi Market Building, 1st floor, ]
R.No.A, Kalbadevi Road, Mumbai – 400 002]...Plaintiff
VERSUS
Sandeep M. Dhanuka ]
Trading in the name of NANDLAL ]
CORPORATION ]
having address at : 354, Kalyan Bhawan, ]
Ground Floor, Kalbadevi Road, ]
Mumbai – 400002. ]...Defendant
Appearance :
Ld. Advocate Mr. Roshan Bamane h/f. Adv. Suresh Jain for the plaintiff.
Ld. Advocate Mr. Jagdish Nagar for defendant.
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CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 19/03/2025
J U D G M E N T
(Delivered in open Court)
01] The plaintiff has taken out this summons for judgment on
25/02/2020 against defendant. The defendant has filed affidavit in
reply to summons for judgment and resisted it and prayed for dismissal.
Plaintiff has filed rejoinder to reply filed by defendant.
02] As per the plaintiff, he is carrying on business as a sole
proprietor of M/s. Sanjayleen Textile Industries (India) and engaged in
business of textile goods. Defendant is a trading in the business of
textile goods under the name and style of Nandlal Corporation. Further,
defendant was in need of financial help therefore, plaintiff advanced
friendly loan of Rs. 2,00,000/- by cheque bearing No. 148389 dated
03/05/2017. Defendant had agreed to repay said amount with interest
at the rate of 18% p.a. Accordingly, defendant issued four cheques
bearing Nos. 597976, 597974, 597975 and 597977 for sum of
Rs. 50,000/- each in favour of defendant. Plaintiff had not deposited
said cheques on request of defendant as he had promised to make
payment by RTGS or demand draft. Defendant failed and neglected to
repay outstanding amount therefore, issued advocate notice dated
29/03/2019 and called upon to make payment. Defendant gave false
reply on 04/04/2019 to which plaintiff had given rejoinder and denied
contents in reply of defendant. Plaintiff is entitled for an amount of
Rs. 2,62,000/- including interest and further interest. It is the defence
of defendant that plaintiff is money lender however, not produced any
evidence. Defendant has defnce by way of mere denial however, he has
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not denied that he had received amount. Further, defence is that this
Court has jurisdiction to try suit. Defendant has not raised substantial
defence. Therefore, defendant is not entitled for leave to defend the
suit. Hence, summons for judgment may be allowed.
03] On the contrary, it is the defnce of defendant that summons
for judgment is not in accordance with provisions. Plaintiff and his
family members are money lenders without money lending license
therefore, suit is not maintainable. Defendant has neither borrowed and
friendly loan of Rs. 2,00,000/- nor he agreed to repay the same with
interest at the rate of 12% p.a., as there is no agreement to that effect.
Defendant had issued said four cheques in relations to other transaction
and plaintiff has filed separate suit bearing No. 252/2020 before City
Civil Court, Mumbai. Even defendant had not authorized plaintiff or
any body to fill the details of cheques. Further, suit is neither based on
Bill of Exchange or contract. Further, alleged cheques are not deposited
by plaintiff therefore, there is no cause of action. Thus, defendant has
raised substantial defence that suit is not maintainable as stated above.
Hence, defendant is entitled for leave to defend the suit. Hence,
summons for judgment may be dismissed with costs.
04] Perused summons for judgment, reply to it, rejoinder to
reply and documents on record. Heard both parties. Plaintiff to
corroborate his contentions that he had advanced friendly loan sum of
Rs. 2,00,000/- by cheque. Plaintiff to support said contentions has filed
statement of bank account on record vide list Exh. 2/1. However, said
statement is not supported by requisite certificate hence, it cannot be
read in evidence at this stage. Even, plaintiff has filed four cheques on
record vide list Exh. 2/2 to show that defendant issued said cheques to
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discharge his liability. It is pertinent to note that as per defendant said
cheques were issued in relation to separate transaction and to recover
said amount plaintiff has filed Suit No. 252/2020. It is pertinent to note
that except bare contention defendant has not filed any documentary
evidence.
05] It is the defence of defendant that plaintiff is money lender
and does not have money lending license. Defendant has not brought
any material on record to support his contentions. Moreover, it is settled
law that defendant has to prove said issue by adducing evidence.
Therefore, said aspect cannot be decided at this stage. It is also def'ence
of defendant that suit is not maintainable as it is not filed on the basis
of Bill of Exchange or contract and there is no cause of action. It is
pertinent to note that plaintiff has filed suit on the basis of four cheques
issued by defendant. Cheque is also bill of exchange. Therefore, there is
no substance in said contentions of defendant. It is also defence of
defendant that he had issued said cheques to purchase textile goods
however, plaintiff failed to supply textile goods to defendant. The
defendant except bare words has not brought ay material on record.
06] Further, as defendant failed and neglected to repay
outstanding amount plaintiff had issued legal notice dated 29/03/2019
filed on record vide list Exh. 2/3. Plaintiff had called upon defendant to
pay outstanding amount. However, it appears that defendant has
replied to said notice on 04/04/2019 filed on record vide list Exh. 2/4.
On perusing said reply, it appears that defendant has denied contentions
of plaintiff of friendly loan. It is not the case of defendant that said four
cheques were issued in separate transaction. Further, plaintiff has filed
rejoinder on 27/04/2019 to reply of defendant dated 04/04/2019 and
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denied its contention. It is filed on record vide list Exh. 2/5. Thus,
though defendant has raised triable issue that plaintiff is money lender
and he does not have money lending license. It is also contention of
defendant that there is no cause of action to file suit. Further, whether
said four cheques were issued in relation to other transaction. These
issues requires adjudication. Therefore, it is necessary to grant leave to
defend the suit to defendant however, subject to condition to deposit
principal amount. Hence, I proceed to pass following order :-
O R D E R
1) Summons for Judgment No.39/2020 in Summary Suit
No. 117/2020 is disposed off as follows:
(a) Leave to defend the suit is granted to the defendant subject to
condition that he shall deposit principal amount within 60 days
from the date of this order.
(b) The defendant will be at liberty to file his written statement
on record within 30 days after depositing amount.
2) After depositing amount by the defendant, it be deposited in fixed
deposits in any Nationalized bank initially for a period of two
years and then subsequently, if required renew it every year.
3) No order to costs.
4) Summons for Judgment No. 39/2020 is disposed off accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai
Date: 19/03/2025 Court Room No.81.
Dictated on: 19/03/2025
Corrected & signed on: 19/03/2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
26/03/2025 Mrs. Rupali S. Bhor
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
19/03/2025
JUDGMENT/ORDER signed by P. O. on 26/03/2025
JUDGMENT/ORDER uploaded on 26/03/2025
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