Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M. No.962 OF 2020
MHCC010026312020
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI.
(Court Room No.32)
NOTICE OF MOTION NO.962 OF 2020
IN
COMMERCIAL SUIT No.384 OF 2020
Prashant @ Bittu Sureshbhai Shah
Age about 35 years, of Mumbai, adult,
Indian Inhabitant, residing At 103,
Vasant Vijay Mahal, Pushpa Park,
Malad (East), Mumbai 400 097.
...Plaintiff
VERSUS
1
2
3
Prashant Suresh Gupta, An adult,
Indian Inhabitant, residing at 7/81/B,
Tilak Nagar, Near Reve-3 Shopping
Mall, Kanpur, Uttar Pradesh.
Rajendra Praskash Gupta, An adult,
Indian Inhabitant, residing at 310,
Ganpati Heights, Malia Road, Gurgaon.
Ashokkumar Gupta, An adult, Indian
Inhabitant, residing at 74/223, Dham
Kulfi, Kanpur Uttar Pradesh. ...Defendants
Sachin Suware h/f Adv. Varma, learned advocate for plaintiff.
Rohan More h/f Adv Lahane, learned advocate for defendant.
CORAM : H.H. JUDGE SHRI SANJIV PRABHAKAR PINGLE,
COURT ROOM NO.32,
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2 N.M. No.962 OF 2020
O R D E R
(Delivered on 21/03/2025)
1. The present Notice of Motion is taken out by plaintiff for
directing the defendants to furnish security for sum of Rs.25,00,000/-
on such Terms and Condition, as per the satisfaction of this Court.
2. Secondly, plaintiff also prayed to issue warrant of
attachment of properties. Firstly, at 1) 7/81/B, Tilak Nagar, Near Reve-3
Shopping Mall, Kanpur, Uttar Pradesh. 2) 310, Ganpati Heights, Malia
Road, Gurgaon. 3) 74/223, Dham Kulfi, Kanpur Uttar Pradesh for
Rs.40,00,000/-. Notice of Motion is duly supported by affidavit of one
plaintiff @ Bittu Sureshbhai Shah. It is prayed to take into account all
the averments/contentions made in the plaint forming as part of a
present affidavit.
3. Vide reply Exhibit-17 dated 18.10.2023, as per docket,
resisted Notice of Motion resisted for the reasons that defendant No.1
contended that he was residing separately from defendant No.2 & 3.
Thus, there was no commercial dispute or transaction in between
plaintiff and defendant No.2 and 3. It is contended that defendant No.1
is facing Trial bearing case No. 3273/PW/2015 pending before Ld. 18th
M. M. Court Girgaon Mumbai pursuant the F.I.R No. 120 of 2014 dated
17.04.2014. Therefore, he was arrested on 22.06.2014. During
investigation it was revealed that one Mr. Kaushal Ranglal Sharma and
Mr. Rajkumar Nathilal Verma obtained Diamonds from defendant No.1
issued by plaintiff.
4. Further it was also revealed during investigation the names
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of more than 3 person i.e. Mr. Sachin Ajay Pandey, Mr. Babubhai Kothari
and Mr. Govind Porval. Therefore, chargesheet came to be filed on
30.06.2014 showing names of three accuse as wanted accused.
5. It is further contended that plaintiff approached alongwith
defendant No.2 & 3 at Central Prison Mumbai to obtain his signature on
11.07.2014 on 'agreement' drafted by the Advocate of plaintiff/lawyer,
on assurance that he would be released on bail. Therefore, he made
signatures on agreement as well as upon several cheques before Jailor.
Thus, plaintiff himself arranged lawyer for defendant No. 1 for filing
'bail application' before Sessions Court at Bombay. Therefore, he was
released on bail by Sessions Court as per order dated 14.07.2014.
6. It is further contended that by the defendant No.1 that
after his release on bail immediately paid Rs. 5,00,000/- by way of cash
to plaintiff i.e. his partners Mr. Chirag Seth. At the relevant time, he
came to know that he had signed total 12 cheques in the name of Mr.
Chirag Seth, whereas 5 in numbers in the name of Mr. Prashant Shah.
Thereafter, meeting was arranged in the office of his relative at Malad
(East). As per promises, some how he arranged amount of
Rs.5,00,000/- from his relatives and friends and paid to Mr. Prashant
Shah i.e. Plaintiff and both the partner. Thus, Prashant Shah and Chirag
Seth obtained his signature on agreement dated 14.11.2014. Therefore,
defendant No.1 sought return of the cheques as it was assured that after
making full payment those cheques as will be returned. Thus, it is
contended that plaintiff have cheated defendant No.1 after taking
Rs.10,00,000/- in cash and failed to make these entries in suit.
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7. It is contended that plaintiff suppressed and hide several
important facts such as defendant No.1 had courier him loose diamonds
worth Rs.1,75,000/- through ‘R.J.AIR SERVICE’ on 05.03.2016 and
ready to furnish the receipt about it.
8. It is further contended that 04 (Four) carat diamond ring
worth of Rs.10,00,000/- is in the custody of Mr. Kaushal Sharma
whereas 05 carat diamond ear top set worth of Rs.12,50,000/- is in the
custody of Mr. Raj Kumar Verma who are also accused in Criminal
complaint filed by the plaintiff. Thus, it is contended that only after
blackmailing defendant No.1 by plaintiff with the emotions alongwith
defendant No. 2 & 3 obtained his signature on agreement and cheque in
prison on 11.07.2014 misguiding and confusing him by filing false,
frivolous and vexatious suit. Hence, prayed to dismiss the Notice of
Motion with heavy costs.
9. Following points arises for my determination to which I
have noted my findings with reasons thereon to each one as under :-
SR.
NO
POINTS FINDINGS
1 Whether defendant can be directed to
furnish security of Rs.25,00,000/- as
prayed?
No.
2. Whether warrant of attachment as
sought vide prayer clause ‘b’ can be
issued ?
No.
3 What Order? Notice of Motion
Dismissed
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REASONS
10. Heard, Ld. Advocate Sachin Suware h/f Adv. R. R. Varma
for plaintiff is present before the Court. He was also in the first Sessions.
It is clearly & specifically pointed out that the defendant No.1 came
from Kanpur to attend the today’s matter and hearing of the present
Notice of Motion. Thus, he make aware to be ready with his argument
in the second sessions. However, he informed that he has 'no
instructions' from his senior. Therefore, moved adjournment application
Exhibit-16 ? It is rejected. The present Notice of Motion is pending since
it was filed on 19.12.2019 i.e. pending since last 5 years. Therefore,
even though Shri. Sachin Suware shown his inability to argue the
Notice of Motion, at this juncture, I again extended him to opportunity
to argue, however he refused for want of instructions, hence taken-up
for deciding on merits.
11. Ld. Advocate Rohan R More h/f Bhushan Lahane also
informed that he has no instruction to argue the Notice of Motion.
Therefore, as defendant No.1 all the way coming from Kanpur to
attend the hearing of present Notice of Motion, hence I also decided to
dispose the present Notice of Motion on its own merits.
12. After having gone through casepaper, it appears that
plaintiff filed the present suit seeking several reliefs vide prayer clause
(a) such as seeking the decree of Rs.25,00,000/- @ 12% p.a. from the
date of agreement and guarantee till its realization.
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13. Secondly, plaintiff also sought directions to be given to the
defendant to furnish security of Rs.25,00,000/- (vide prayer clause ‘b’).
14. Further plaintiff also sought prayer to issue ‘warrant of
attachment’ of the properties. ( which is reflected in prayer clause ‘b’ of
the Notice of Motion/present application).
15. I have also gone carefully through the plaint allegations. In
brief, it is the case of the plaintiff that in routine course of business
plaintiff come in contact with diamond broker who used to availed
service of polishing diamonds by taking time for payment between 60 to
120 days. Thus, plaintiff was knowing the diamond broker through
diamond market since last few years. The plaintiff had dealing 2 or 3
times through defendant No.1 by making payment to the plaintiff.
Accordingly, defendant No.1 obtained various diamond from plaintiff
and his partner to sell in the diamond open market by issuing the
'Jangad receipt'. However, defendant there after did not made payment
worth of Rs.82,76,000/-towards diamond sell, hence the Criminal
complaint came to be lodged bearing F.I.R./ C.R.No.120/2014 U/Sec.
406, 420 of I.P.C., dated 17.04.2014. Therefore, the present suit
alongwith Notice of Motion has been taken out.
16. Even though none of the parties have advanced
submissions the law is very well crystalize that the final reliefs claimed
in the suit, cannot be claimed at the interlocutory stage by way of
interim Notice of Motion/application, unless and until a strong prima-
facie case seeking seeking a mandatory relief/at the interlocutory stage
has been made out. At the juncture merely on the basis of registration
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of F.I.R. and assuming that defendant No.1 have dealings with the
plaintiff as contended in the plaint no mandatory reliefs can be granted.
The defendant No.1 come up with a categorically stand that plaintiff
with the help of defendant No.2 & 3 came in the central prison Mumbai
and emotionally blackmailed him and obtained his signature on
agreement dated 17.04.2014 under promise he will be facilitated to be
released on bail by providing a lawyer.
17. Further, after release on bail, amount of Rs.5,00,000/- has
been obtained from him, at the first instance, immediately. Thereafter,
with the meeting of relatives office at Malad (East) when subsequent
Rs.5,00,000/- was paid.
18. It is also alleged that total 12 cheques were taken by the
plaintiff and his partners signed by defendant No.1 therefore, he has
been cheated and duped. The said cash payment of Rs.10,00,000/- has
not been shown to be recovered from the defendant No.1 in suit.
19. If it is so, at the this juncture, whatever reliefs sought vide
prayer clause (a) & (b) in the present Notice of Motion either of the
direction to deposit to Rs.25,00,000/- or surety of like amount in the
Court or attachment of property that Kanpur & Gurgaon are concern it
cannot be extended at interlocutory stage when the some of reliefs has
been sought in the main suit. Hence, the Notice of Motin fails. Hence, I
noted my findings accordingly to the point No. 1 and 2 and proceed to
pass following order___
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8 N.M. No.962 OF 2020
ORDER
1. Notice of Motion No. 962 of 2020 is dismissed with costs.
2. Notice of Motion is disposed off accordingly.
. Matter to proceed further in accordance with the law.
( SANJIV PRABHAKAR PINGLE )
DISTRICT JUDGE, CR NO.32,
Date : 21/03/2025. CITY CIVIL COURT, AT MAZGAON,
MUMBAI.
Dictated on : 21/03/2025
Typed on : 24/03/2025
Signed on : 26/03/2025
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9 N.M. No.962 OF 2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
26/03/2025 at 5.30 p.m. Mr. Mahesh S. Lugade
Name of the Judge ( With Court
Room No.)
H.H.J. Shri Sanjiv P. Pingle
(Court Room No.32)
Date of Pronouncement of
JUDGMENT/ORDER
21/03/25
JUDGMENT/ORDER signed by
P.O. on
26/03/25
JUDGMENT/ORDER uploaded on 26/03/25
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